- (1.) This appeal under Section 299 of the Indian Succession Act, 1925 ('the Act') has been filed by the appellant Bhinya Ram (since deceased) aggrieved against the judgment dated 21.09.1994 passed by the District Judge, Bikaner ('the trial court'), whereby the application filed by the respondent Takhu Ram (since deceased) under Section 276 of the Act has been allowed and probate has been ordered to be issued in favour of respondent Takhu Ram in respect of Will dated 02.04.1979 executed by Smt. Ganga.
(2.) The respondent Takhu Ram filed application under Section 276 of the Act seeking probate of Will dated 02.04.1979 executed by Smt. Ganga wife of Late Kesara Ram, resident of Uchida, Tehsil Loonkaransar. It was averred in the application that executant Ganga expired on 01.05.1979 at Uchida and in respect of her properties situated at Village Netawas, she had executed a Will dated 02.04.1979 and placed her thumb impression, whereby she bequeathed her property including land admeasuring 151 Bigha, a house and five cows to the applicant; the Will was last will of the deceased; the Will was executed voluntarily and the same is duly executed, the property is situated within the jurisdiction of the court and that Smt. Ganga was residing at and died at place within the jurisdiction of the court; the deceased was widow since childhood (1) and had no issue, the applicant is the nearest relation on her husband's side i.e. Smt. Ganga was applicant's Aunty (2). It was prayed that the application be allowed and probate be granted. The application was verified by the applicant Takhu Ram and one Hariram, attesting witness to the Will.
(3.) After notices were issued, a reply to the application was filed by Bhinya Ram, appellant, wherein the contents of the application were denied; the execution of the Will was disputed. It was claimed that the Will was forged and has been created to harm the applicant. It was also claimed that Smt. Ganga was Aunty (3) of the non-applicant and used to live with him; the non-applicant was in possession of the properties of deceased Smt. Ganga and the agricultural land has been mutated in his name. It was disputed that the deceased Smt. Ganga was real Aunty of applicant. In the additional pleas, it was contended that the deceased had executed a Will in favour of the nonapplicant and despite being aware about the same, the application has been filed; by way of counter claim, it was indicated that a Will dated 27.04.1979 was executed by the deceased Smt. Ganga in favour of the non-applicant and her two grand-daughters Dhapi and Chuki daughters of Jaisaram, wherein two agricultural fields admeasuring 16 Bigha 10 Biswa each were bequeathed to them and rest of the property was bequeathed to the non-applicant; the Will dated 27.04.1979 was the last Will of the deceased, which results in cancellation of the Will dated 02.04.1979 (which execution was not admitted). It was prayed that probate of Will dated 27.04.1979 be granted. It was further claimed in the additional pleas that the nonapplicant is adopted son of Smt. Ganga and a registered adoption deed has been executed in his favour and, therefore, the property could not have been bequeathed by her; the application in absence of Dhapi and Chuki was not maintainable. Ultimately, it was prayed that the application filed by Takhu Ram be dismissed, the counter claim be allowed and probate be granted in favour of the non-applicant, Musamat Dhapi and Musamat Chuki daughters of Jaisaram.;