- (1.) DILIP Gupta, J. A Will is one of the most solemn documents known to law. By it a dead man entrusts to the living, the carrying out of his wishes after his death and it is impossible that he can be called either to deny his signatures or to explain the circumstances in which it was executed. The present, however, is a case where during his lifetime, the testator not only made specific assertions about the execution of the Will, but also explained the circumstances which led to its execution. This was done in the original suit that had been instituted by the testator against that son and his family who had been excluded from the bequest. Though the testator died during the pendency of the suit, but the son in whose favour the bequest was made was substituted as the plaintiff and the suit was ultimately decreed by the Trial Court and the said decree was confirmed in the First Appeal. Of course, the institution of the suit by the testator of the Will is denied by the defendants, but both the Courts below have found, as a fact, that the suit had been instituted by the testator having a sound disposition of mind at the material time.
(2.) THE dispute is about House No. 31, Lowther Road, Allahabad. late Ram Narain Gupta who had retired in the year 1957 as Deputy Director of Education, Allahabad had purchased the said house by a registered sale-deed dated 28th July, 1960. Jitendra Nath Gupta and Rajendra Gupta are the two sons of Ram Narain Gupta. THE elder son Jitendra Nath Gupta was employed in Central Roadways Workshop, Kanpur and U. P. State Road Transport Corporation, Kanpur and resided in Kanpur with his family consisting of his wife Uma Gupta, his son Somendra Gupta and his daughter-in-law Kiran Gupta. It is said that from December, 1992 Jitendra Nath Gupta with his family started residing in his father's house at Lowther Road, Allahabad. THE younger son Rajendra Gupta retired as a teacher in the Mathematics Department of the Allahabad University and has been residing on the first floor of the aforesaid house of Ram Narain Gupta at Lowther Road alongwith his family consisting of his wife Manju Gupta and his two sons Pankaj Gupta and Mohit Gupta. Ram Narain Gupta executed a registered Will on 1st July, 1983 when he was about 81 years of age. This Will is not in dispute as it is admitted to both his sons Jitendra Nath Gupta and Rajendra Gupta. Under this Will, Part-l of the aforesaid house was bequeathed to his younger son Rajendra Gupta while Part-II of the house was bequeathed to his wife Rani Devi Gupta and after her death to his elder son Jitendra Nath Gupta and his grand son Somendra Gupta jointly in equal shares. Rani Devi Gupta died on 17th December, 1989. It is said that after her death, Ram Narain Gupta executed another registered Will on 16th October, 1992 and by this Will he revoked the earlier Will dated 1st July, 1983 and bequeathed the entire house in favour of Rajendra Gupta but imposed a condition that Rajendra Gupta will pay a sum of Rs. 50. 000/- to Jitendra Nath Gupta. It is also said that on 25th June, 1993, Ram Narain Gupta executed another registered Will by which he revoked the earlier Will dated 16th October, 1992 and bequeathed the entire house in favour of Rajendra Gupta unconditionally. Jitendra Nath Gupta disputes the execution of the Wills on 16th October, 1992 and. 25th June, 1993. It is, therefore, necessary to refer to the relevant portions of these three registered Wills.
(3.) THE relevant portion of the registered Will executed by Ram Narain Gupta on 1st July, 1983 is as follows: "i had planned to divide my aforesaid house in two parts and to absolutely bequeath one of the two parts as prescribed hereinafter to my son Dr. Rajendra Gupta. I had indicated my plan to him on his return from abroad in August, 1981. Dr. Rajendra Gupta, in view of my will and desire and with my consent, added new constructions to the house from his own money. . . . . . . . . . . . . . . THEse new constructions, alterations and modifications are included in that portion of the house which I have shown as part in the schedule of the document. . . . . . . . . . . . . I have got two sons. THE elder son is Sri Jitendra Nath Gupta and the younger son is Dr. Rajendra Gupta. . . . . . . . . . . . . . . . . I bequeath part I of my aforesaid house, as described in the schedule below, as shown by red colour in the attached map, absolutely to my son Dr. Rajendra Gupta after my death. . . . . . . . . . . . . . . . . . . . I bequeath part II of my house as described in the schedule, and as shown without any colour in the attached map, to my wife Smt. Rani Devi Gupta for her life. She shall not have any right to transfer or alienate, either by sale or by gift or by mortgage or by lease or in any other manner, this part during her life. . . . . . . . . . . . . . . On death of my wife Smt. Rani Devi Gupta this part shall absolutely devolve on my son Sri Jitendra Nath Gupta and my grand son Sri Somendra Gupta jointly in equal shares. . . . . . " The relevant portion of the registered Will executed by Ram Narain Gupta on 16th October, 1992 is as follows : "i, Ram Narain Gupta son of late Shri Ram Bahori Gupta, R/o 7/31, Lowther Road, Allahabad, do hereby cancel and revoke the Will dated 1st July, 1983 executed by me in respect of my assets and properties. This has been necessitated for various reasons, including the death of my wife; and also be-cause I am also now firmly of the view that my two sons cannot live peace-fully and happily in the same premises. Therefore, I have decided to execute a fresh Will all together. This is my last and final Will as on date. There is no other registered or unregistered will executed by me except the one revoked by me as above. I bequeath Part 1 of my aforesaid house, as described in the Schedule below and as shown by red colour in the attached map, absolutely to my son Dr. Rajendra Gupta after my death. . . . . . . . . . . . . I also bequeath Part II of the house, as described in the schedule below as shown by yellow colour, absolutely to Dr. Rajendra Gupta after my death with the same conditions and in the same manner as those of Part l. He shall become its absolute owner on my death. However, the condition attached to this bequest is that Dr. Rajendra Gupta shall pay a sum of Rs. 50,000/- (Rupees fifty thousand only) to my elder son, Sri Jitendra Nath Gupta. . . . . . . . . . . . . . ";