- (1.) THIS is a petition under Section 276 read with Sections 273 and 300, Indian Succession Act, (hereinafter called the Act) for the grant of probate of the will dated January 12, 1974, Exhibit P-A, executed by Shridhar Sharma Guleri, (hereinafter called the testator), in favour of Shrimati Rajeshwari Rani Pathak, the petitioner (hereinafter called the executrix ). The testator died on February 22, 1974, at Simla when he was working as Joint Agricultural Commissioner at simla under the Himachal Pra-desh Government. The present petition was filed on July 16, 1974.
(2.) THE testator was a Lecturer in Government College at Solan. He passed the i. P. S. Examination in the year 1963 and was subsequently selected in the indian Administrative Service (I. A S. ). After getting his training, he was appointed as Sub-Divisional Magistrate, at Kan-gra, in the year 1966-67. In july, 1967, he was appointed as Deputy Commis-sioner, (Rehabilitation)Talwara. After working as Deputy Development Commissioner at Simla up to april, 1970, he was transferred as Deputy Commissioner, Bilaspur and he served as such up to April, 1971. He went on deputation as Under-Secretary (Finance), Government of India, from where he was transferred to Simla under the Himachal Pra-desh Government in February, 1973. There, he worked in various capacities up to February 22, 1974, when he met his tragic end in mysterious circumstances. At the time of his death only he was in the house and his dead body was found partly burnt. He was married to Shri-mati Nirja guleri on March 10, 1966 (hereinafter called the objector ). The marriage was solemnised at Dehra Dun. From the wedlock, two sons were born. Shri Shre guleri was born on November 23, 1968 and Shri Kant Guleri was born on january 3, 1971.
(3.) THE father of the testator died on July 24, 1967. His mother died on January 1, 1974, at Aimer, at the house of his brother Dr. S. K. Sharma, Professor and head of Pharmacology Department, Medical College, Ajmer. Kirya ceremony of the testator's mother was held on January 11, 1974 and the will, in dispute, Ex. P-A, was executed the next day, that is, Jan. 12, 1974. The body of the said will is typed. It is signed by the testator and is attested by two witnesses, namely, dr. K. S. Yadav, Lecturer, in Medicine J. L. N. Medical College, Ajmer and Dr. S. V. Malvea, Reader and Head of Anaesthesio-logy Department, J. L. N. Medical college, Aimer. Its execution is proved by both the witnesses, that is, Dr. Malvea, as P. W. 3 and Dr. Yadav, as P. W. 4. Both of them have expressly stated that the will was signed by the testator in their presence and that they also affixed their signatures on the will in the presence of the testator. It is stated in the will that the testator was at Ajmer to attend the last rites of his mother. The entire property, the details of which however, are not given in the will, was bequeathed in favour of Shrimati Raje-shwari Rani Pathak who, according to her own statement, is the real sister of the testator's mother, which is not denied by the other side. According to the averments in the will, the executrix had brought up the testator since the age of five years. She was made the owner of the entire property of the testator and was authorised to take possession of the same. She was also appointed as executrix of the property to provide for his two minor sons, namely, Shri Shre Guleri and Shri kant Guleri, Shrimati Nirja Guleri, the wife of the testator, was disinherited and the averment hi this regard is to the following effect : "as regards Smt. Nirja, though she was married to me, but has deserted me and I do not give her anything out of my property as she is already given all the ornaments, jewellery and household goods with Rs. 50,000/- cash and has, therefore, given up her claims, if any, over my property. " Towards the end of the contents of the will, it is specifically mentioned that the will is "drafted and typed by self. " The details of the property, both movable and immovable, belonging to the testator, are given in Annexure 'b', annexed to the petition which is valued at Rupees 3,20,000/ -. In the list of heirs, attached to the petition, besides the names of the widow of the testator and the two minor sons, mentioned above, are also included the names of Dr. S. K. Sharma as brother of the testator and Shri S. S. Pathak, as natural brother of the testator, but adopted by his maternal grandfather. Objections have been filed in the form of written statement by Shrimati Nirja guleri, the widow of the testator on her own behalf and as mother and natural guardian of two minor sons. The objections raised, inter alia, are,-- 1. The testator was only 34 years of age at the time of his death. He died in tragic and accidental circumstances while on active duty. There was no reason, nor any occasion for him to execute any will; 2. The propounder, the petitioner, and the two brothers of the testator, have deprived the objectors of their just claims over the property; 3. The document, Exhibit P-A, is not a willl. It is designed and manufactured only as an arrangement and provision for the guardianship of the infants. The same is forged and fabricated and has been contrived with the design to benefit the two brothers of the testator, using the propounder in name only as a duct Eor the ultimate conveyance and pillaging of the properties of the testator. 4. The alleged will is unofficious, improbable, unnatural, artificial and unfair transaction. Its recitals are cryptic and laconic. 5. The recitals in the alleged will that Shrimati Nirja Guleri had deserted the testator and that she had already been given the ornaments, jewellery and household goods with Rs. 50,000/- cash and had, therefore, given up her claim, are senseless and false. The testator did not know, nor did he typewrite himself nor he was in any way familiar with drafting a solemn document like a will. 6. The will was not signed by the testator in the presence of the alleged attesting witnesses. The same has not been executed or attested as a will, legally. 7. The testator was addicted to alcohol and had become schizophrenic under the influence of alcohol and was not an agent of his free will and understanding. The same is not the result of the testator's free will and mind. 8. The said will is vitiated by fraud and undue influence. 9. The properties alleged to belong to the testator, in fact, belong to the joint family consisting of the testator and the objectors. The testator could dispose of only his right, title and interest in the joint family property. ;