MILAP CHANDRA JAIN, J. - (1.) THIS appeal has been filed against the order of the learned Single Judge dated November 13, 1987 by which he has granted the Probate in respect of the Will Ex. 1 dated May 15, 1984 executed by Maharana Bhagwat Singhji Mcwar. The facts of the case giving rise to this appeal may be summarised thus.
(2.) ON April 10, 1985, the Executors (Respondents) of the Will Ex. 1 moved a petition under Section 273, Indian Succession Act, 1925 (hereinafter called 'the Act') read with Rule 750, Rules of the High Court of Judicature for Rajasthan, 1952 (hereinafter called 'the Rules') for the grant of probate of the said Will with the averments, in short, as follows : Late Maharana Bhagwat Singhji Mewar died on November 1, 1984 at Udaipur leaving behind the said Will. He deposited the same with the Bank of India, Palace, Udaipur in a scaled envelope with the instructions to deliver it to his younger son Maharaj Kumar Arvind Singh (Executor -petitioner -respondent No.1) after his death. It was received by him from the Bank on November 5, 1984. It was the last Will of Maharana Bhagwat Singhji Mewar. It was duly executed by him in presence of the attesting witnesses who appended their signatures at the foot thereof. The petitioners have been appointed as its Executors. On June 4, 1984, late Maharana Bhagwat Singh Ji Mcwar executed and got registered a general power of attorney in favour of Maharaj Kumar Arvind Singh (petitioner No.1) and his daughter Rajkumari Yogeshwari Kumari (not a party in this case) and reference of the said Will is made therein. Original Will, its photostat copy, affidavit of the attesting witness Shri Bhanwar Lal Vyas, Advocate, affidavit of valuation and undertaking were duly enclosed with the application. On August 16, 1985, the elder son of testator, Maharana Mahendra Singh Ji entered his caveat under Rule 77 of the Rules. On August 31, 1985, the widow of the testator, Rajmata Sushila Kumari, also entered her caveat. A number of documents were enclosed with this caveat. Citations were also issued to Rajmata Sushila Kumari, Rajkumari Yogeshwari Kumari, Maharana Mahendra Singh, Maharaj Kumar Raj Singh Dungarpur, Maharaj Samar Singh Dungarpur and Ashwini Kumar Chaturvedi. They have filed their affidavits stating that they have no objection against the grant of probate in respect of the said Will.
(3.) ON August 31, 1985, Maharana Mahendra Singhji filed his reply to the notice of the citation admitting that he is the eldest son of Late Maharana Bhagwat Singhji Mewar, the Executor (petitioner -respondent No.2) A. Subramaniam was in the employment of Maharana Bhagwat Singhji Mcwar for last several years, he was being treated as a member of the family, he was given unrestricted power and was wholly and solely incharge of his affairs and Maharana Bhagwat Singhji died on November 1, 1984 at Udaipur, leaving behind his widow Rajmata Shshila Kumari, two sons, namely, Maharaj Kumar Mahendra Singhji and Maharaj Kumar Arvind Singliji. The remaining averments of the petition have been denied. It has further been averred that during the course of employment Shri A. Subramaniam committed criminal breach of trust and cheated Maharana Bhagwat Singhji Mewar, he made an extra judicial confession in this respect in his own hand writing on November 18, 1978 and mortgaged his residential house in favour of late Maharana Bhagwat Singhji Mewar for the amount embczzeled by him. Suit No. 63 of 1983 has been filed by him for partition against Maharana Bhagwat Singhji Mewar and others, an application for apointment of a receiver has also been moved and Shri Bhanwar Lal Vyas Advocate, counsel for Maharana Bhagwat Singhji Mewar, gave an unequivocal undertaking therein on April 23, 1983 that he (Maharana Bhagwat Singh Ji Mewar) will not transfer, sell or mortgage any of the properties belonging to the Hindu Undivided Family till the decision of the suit. The District Judge, Udaipur has also passed an order for maintaining status quo in the said partition suit. As such no Will could be executed and in fact no Will has been executed by Maharana Bhagwat Singhji Mewar. The petitioners are called upon to prove its execution and genuineness. The petitioner A. Subramaniam could not have been appointed as an Executor of the Will. The following issues were framed: 1. Whether the Will Ex. 1 dated 15.5.1984 was duly executed by deceased Shri Bhagwat Singh ? 2. Whether the document dated May 15, 1984 alleged to be Will by the petitioner is not the Will and on the basis of which no probate could be granted?;