R.K. Shukla, J. - (1.) THIS Special Appeal has been filed by Smt. Shakuntala Devi against the judgment dated 24.12.1980 of a learned Single Judge of this Court in Testamentary case No. 7 of 1973 (Suit No. 1 of 1980) whereby probate has been granted to the Respondent Ladley Mohan Mathur of a will executed by his father Mata Prasad Mathur on 5.2.1957.
(2.) THE facts giving rise to this Special Appeal, is pleaded by the Respondent in brief, are that Mata Prasad Mathur father of the Appellant and the Respondent, resident of ' Hardi Bhawan' 211, Attarsuiya, Allahabad, who was a retired Head Assistant of the office of the Administrator General at Allahabad and owned properties worth more than Rs. 15,000/ - in the city of Allahabad, executed a will, Ex. P -l on 5.6.1957 at Kanpur, where he was living at that time with his son Ladley Mohan Mathur, who was employed in the Kanpur Electricity Supply Administration. The will was duly executed and signed by the testator before two attestation witnesses, namely, Guru Nandan Prasad PW 1 and Shyam Sunder, in a sound disposing mind and of his own free will and accord whereby he bequeathed his three houses No. 210, 211 (including shops) and 213 along with all other properties to his only son Ladley Mohan Mathur and the wife of Ladley Mohan Mathur, namely Phool Kumari except the Government securities of the face value of Rs. 1000/ - only which were given to his daughter Smt. Shakuntala, Appellant. It is further stated that the testator had got the will prepared in quadruplicate and all the four documents were signed by the testator and attested by the attesting witnesses whose affidavits have been filed along with the petition. The testator Mata Prasad Mathur gave one copy of the will duty executed and attested by the witnesses to his son Ladley Mohan Mathur and another to his son -in -law, Sri R.N. Mathur alias Gopalji (husband of Smt. Shakuntala Devi, Appellant). The remaining copies and the holograph draft will were kept by the testator in an envelope, Ex. P -4, which was discovered later on by Ladley Mohan Mathur after the death of the testator on 10.6.1966. An application for mutation was moved by Ladley Mohan Mathur on 18.4.1967, wherein a true copy of the will was filed. One of four copies of the will had been filed by Ladley Mohan Mathur in suit No. 720 of 1968 in the court of the Additional Munsif, Allahabad and another copy had been filed by him alongwith the petition for probate in this Court. It indicates that Ladley Mohan Mathur, Respondent and his wife Smt. Phool Kumari Mathur were appointed as executors of this will. Notice of the petition for probate filed by Ladley Mohon Mathur were issued to Smt. Shakuntala Devi and Smt. Phool Kumari Mathur besides the Board of Revenue and the Assistant Controller of the Estate Duty. Smt. Phool Kumari wife of Ladley Mohan Mathur filed an affidavit in which she stated that she had no objection to the grant of probate in favour of her husband. However, caveat alongwith a counter affidavit was filed on behalf of the Appellant Smt. Shakuntala Devi, daughter of Mata Prasad Mathur, wherein it was alleged that the will was an unregistered document and it was a fabricated and not a genuine one. Rejoinder affidavit/ replication was filed by Ladley Mohan Mathur.
(3.) ON the basis of the pleadings of the parties the learned Single Judge framed the following five issues: 1. Whether the will (Annexure 1 to the petition) dated 5.6.1957 has been duly executed? 2. Whether the testator executed the will dated 5.6.1957 out of his own free will and whether he was in a sound disposing mind? 3. Whether the will dated 5.6.1957 is a forged and fabricated document -If so its effect ? 4. Whether the Defendant is a person interested and entitled to file the caveat and the objection ?;