Sudhir Narain, J. - (1.) The petitioner seeks grant of probate/letters of administration to him with the copy of the Will dated 31.1.1990 annexed with it to the extent of l/3rd share in the property of the testator Shri Raghunath Prasad Agarwal.
(2.) The facts in brief are that Raghunath Prasad Agarwal executed his last Will on 31.1.1990 whereby he bequeathed his property C-15, Surya Nagar, Ghaziabad to his wife and three sons. He expired on 25.9.1995. The petitioner filed this petition on 1st February, 1997 claiming l/3rd share in the property. The notices were issued to his widow, two sons and two daughters. The petition has been opposed by his widow Smt. Sushila Agarwal and two sons, namely, Sri Satish Kumar Agarwal and Sri Rajesh Agarwal. They have admitted the execution of the Will but their objection is that the property was given exclusively to the widow of the testator and only after her death. the property in question was to be devolved on three sons in equal shares. On the contentions raised by the parties following issues were framed : "1. Whether the Testator had by his Will dated 31.1.1990 given absolute life interest to his wife Smt. Sushila Agarwal for enjoyment of the tenancy rights over the constructions only as alleged in paragraph No. 7 of the plaint? 2. Whether Smt. Sushila Agarwal has absolute ownership rights on the property No. C-15, Surya Nagar, Ghaziabad to the exclusion of her 3 sons who had no such right during her life time? 3. Whether the three sons of the testator or anyone of them has a right to raise an immediate claim on the basis of the Will and the present petition is premature and not maintainable? 4. Whether the word "my" appearing in paragraph No. 3 of the said Will was a typing error for the word "her" as alleged in para 1A of the written statement? 5. As to what Relief, if any, is the petitioner entitled."
(3.) Issue Nos. 1. 2 and 4 : These issues are related with each other and, therefore, are being decided together. The execution of the Will is not denied. The respondents have also admitted the execution of the Will by Raghunath Prasad Agarwal. The Will has also been proved by Niranjan Lal, the attesting witness who has filed affidavit stating therein that the Will was executed in his presence. It was read over to the testator and he signed the Will in his presence. The only question is whether the executant had given his wife life estate or absolute ownership in the property in question. In this context, the relevant part of the Will is produced below : "1, Raghunath Prasad Agarwala, son of Late L. Surya Bhan aged 60 yrs. Resident of C-15 Surya Nagar, Ghaziabad (U. P.) do hereby make and declare this as my last Will and Testament without any pressure or influence and with my free mind whereby I bequeath and give to my wife Smt. Sushila Agarwala my property built on plot No. C-15 Surya Nagar, Ghaziabad (U. P.) along with the leasehold rights on the land Smt. Sushila Agarwala shall be the absolute owner of the said property after my death. And I hereby declare that I the sole owner of the above said property and it is free from all encumbrances, claims, charges, liens, demands, mortgages and I have constructed this property from my own funds except the portion wherein my eldest son Shri Satish Kumar Agarwal lives In. This portion has been constructed by him by his own earned funds. I hereby further declare that the said property will be enjoyed by my wife solely and absolutely in whatever , manner she desires. No further construction shall be done by any of my heirs during her life time. My three sons (1) Shri Satish Kumar Agarwal (2) Shri Harish Kumar Agarwal and (3) Shri Rajesh Kumar Agarwal shall not have any right in the said property except the portion which has been constructed by my eldest son Shri Satish Kumar Agarwal as stated above and he will continue to have his rights to live therein. After my death however, there will be equitable distribution of the said property amongst my above mentioned three sons. However, my eldest son Shri Satish Kumar Agarwal will have first option to retain the portion constructed by himself through his own funds adjustable against his share of my said property.";