Judgment

S. M. FAZAL ALI, J.: - This appeal by certificate is directed against the judgment of the Delhi High Court dated 15-2-1967 reversing the decision of the Single Judge and dismissing the application filed for grant of probate by the appellant of a will said to have been executed by Smt. Jog Maya on the 1st July, 1947 and registered on 9th July, 1947. Smt. Jog Maya died on 22-10-1955. Soon thereafter the appellant who was the sole legatee and executor under the will filed a petition before the District Judge, Delhi for grant of letters of administration or probate.

2. Put briefly the appellants case was that Smt. Jog Maya was a resident of Mohalla Rang Mahal, Nahar Sadat Khan Delhi and although she had an adopted son, namely, the respondent Pt. Devi Charan there was no love lost between Smt. Jog Maya and Devi Charan so much so that in her will the testatrix expressly mentioned that the adopted son should not be permitted to perform her funeral rites on her death nor should he be allowed to touch her body. The appellant Durga Prashad on the other had was looking after the affairs of the lady and doing her work from time to time. It was perhaps in lieu of the services rendered by the appellant that Smt. Jog Maya executed a will in his favour on 1st July, 1947.

3. The proceedings for probate were contested by Devi Charan who denied the execution of the will on the ground that Smt. Jog Maya was not of sound disposing mind when she is said to have executed the will but had been persuaded to do so by undue influence exercised by the appellant in executing the will. It was also alleged by the respondent Devi Charan that the will was subsequently revoked and that is why it was not found in the house despite every possible search.

4. The District Judge accepted the plea of the respondent and dismissed the application for probate by his order dated 3-5-1957. The appellant, therefore, filed an appeal to the High Court which was heard by Mr. Justice P. D. Sharma who reversed the decision of the District Judge and found that the will was a genuine document and had not been revoked. He accordingly allowed the petition of Durga Prashad and issued letters of probate and administration. The respondent went up in appeal to the Division Bench which reversed the finding of the Single Judge and restored the order of the District Judge dismissing the application for probate.

5. It would appear from a perusal of the Judgment of the Division Bench of the High Court that so far as the factual aspect regarding the execution of the will was concerned it agreed with the finding of fact given by the Single Judge that the will was a genuine document and was duly executed by the testatrix who had a sound disposing mind and no fraud or undue influence at all had been practised in the execution of the will which was witnessed by as many as 7 attesting witnesses some of whom had been examined before the District Judge to prove the execution of the will. In this connection, the High Court observed as follows :-

"As regards the issue Nos. 1 and 2, as already stated above, the learned Single Judge held that the evidence on record was sufficient to prove that Smt Jog Maya executed the will (copy ) Ex. P. 10 and that she was of sound and disposing mind at the time of the execution, as held by the learned District Judge. Both the Courts have thus given concurrent findings on issues Nos. 1 and 2, viz., on the questions as to whether Jog Maya executed the alleged will dated 1st July, 1947, (certified copy of which has been put on the record and marked as Ex. P. 10) and whether Jog Maya was of sound and disposing state of mind when she executed the said will."

6. In view of this categorical finding of the High Court it is manifest that the point in dispute lies within a very narrow compass. The High Court while accepting the genuineness of the will has non-suited the appellant only on the ground that as the will was not found on the death of the testatrix despite ever