- (1.) THIS is a petition under Section 270 of the Indian Succession Act, 1925, (hereinafter referred to as the Act), for the probate of the alleged will of the petitioners mother-in-law, Smt. Jaggo Bai, who died at Banda, on 31st of October, 1961. The petitioner's case is that Smt. Jaggo Bai, had duly executed her last will and testament on 26-10-1961 in triplicate at the same time and place. One of the al leged identically worded wills was deposited with the District Registrar on 28-10-1961, through a lawyer, Dwijendra Nigam. The second was said to have been deposited with Dwijendra Nigam, the lawyer who had drafted and attested the will. The third was alleged to have been found in the box of the deceased after her death. The appli cant was to be, under the three identical wills, the executrix of the will and the ad ministratrix of the property left by the testa trix.
(2.) A pedigree of the family is given in the petition. The petitioner, Smt. Kamla Kunwar, is shown there as the second wife of Beni Chand, the only son of Smt. Jaggo Bai. The first wife of Beni Chand, Smt. Chameli, died perhaps long ago. Her descendants are shown as a widowed daugh ter, Smt. Chandrakanta, who has two sons who are living, and a daughter, Smt. Chan-drabhaga, who is dead but whose two sons are alive. The petitioner has impleaded, as opposite party No. 1, Ratan Lal, the only issue of Smt. Gopa Bai, one of the three daughters of Smt. Jaggo Bai. The other two daughters of Smt. Jaggo Bai had died issueless. The petitioner impleaded Beni Chand, her husband and only son of Smt. Jaggo Bai, as opposite party No. 2. The remaining eight opposite parties are descen dants of Smt. Jaggo Bai through Beni Chand. The pedigree set up by the petitioner differs from that given by Beni Chand only in so far as it does not show Smt. Ved Kumari, the third wife of Beni Chand, through whom Beni Chand had five sons. The will purports to deprive Beni Chand of all rights in the property ex cept that of residence for his lifetime only in one house, on the grounds, that, he had squandered lakhs by indulging in immora lity "(badchalni)"; that, he had neither resided with nor served the testatrix; that, be had filed civil and criminal cases against her; that, he would waste the property by giving it to his kept woman "(dashta") and her children; that, he would make his wedded wife (i.e. the petitioner) a beggar. The principal object of the attack in the will seemed to be Beni Chand's third wife, Smt. Ved Kumari (described as "dashta') and the five sons of Beni Chand through her who get nothing under the will. The petitioner and opposite parties Nos. 3 to 10 are the apparent real beneficiaries in the will. Ratanlal, opposite party No. 1, was ostensibly deprived by the will of any right to the properties involved on the ground that he is well off. But, according to Beni Chand, the only contestant, the will is de signed to conceal the fact that Ratanlal is a beneficiary as his right to a house, which is said to be disputed by Beni Chand, is ac knowledged in the will.
(3.) THE case taken up by Beni Chand reveals a long history of litigation going back to suit No. 237 of 1886, Deo Kunwar v. Man Kunwar, which went up to the Privy Council (reported in (1895) ILR 17 All 1 (PC)), over the properties which had devolved on Smt. Jaggo Bai in 1890. Smt. Jaggo Bai had filed a Suit No. 481 o 1890 against her mother Smt. Deo Kunwar and her aunt Smt. Man Kunwar for a decla ration of her interest as a life-estate holder. Beni Chand alleged, in his written-state-ment, that devolution of the' deceased's pro perty, originally consisting of several villa ges, including Bazar Kaithiganj, which is one of the properties covered by the above mentioned will, was governed, under the Crown Grants Act, 1895, by the terms of the grant. It is also alleged that, when Beni Chand married a lady of his own choice (called Ved Kumari) in 1928, his mother, Smt. Jaggo Bai, got annoyed and gifted all her properties in favour of the beneficiaries of the will now set up by the petitioner. Beni Chand's case is that he had to bring a suit for the cancellation of the gift-deed which was decreed in terms of a com promise so that the gifts made by Smt Jaggo Bai were cancelled and the deceased accepted the position that she had only a life-interest in the properties in her posses sion. Beni Chand's written statement also mentions a suit brought in the year 1944 against his deceased mother to restrain waste as a result of which a family arrangement was said to have been arrived at wherein the deceased again admitted that she had only a life-interest and no power to alienate or transfer the property by a gift or will Beni Chand also set up an estoppel against Kamla Kunwar's right to file an application for probate by reason of having signed some compromise in Suit No. 8 of 1939. Accord-mg to the objector, the correct valuation oS the property left by the deceased Smt Jaggo Bai was Rs.5, 90, 000.00. As regards the actual execution of the will, the case taken up by the objector is set out, in paragraph 13 of his written statement, as fol lows:- "That the so-called will has been pre pared in collusion with Sri Dwijendra Nigam at the time when Jaggo Bai became uncons cious from 26th October, 1961, and they have managed to remove the valuables and left Smt. Jaggo Bai uncared for to die which is supported by medical certificate." The objector did not admit the correctness of the assertion made by the petitioner that the will was duly executed on 26- 10-1961. ;