JUDGMENT :

1. Heard Sri Shashi Shekhar Dvivedi, learned Senior Counsel appearing on behalf of the appellant.

2. No one appeared on behalf of the respondents.

3. The appeal is proceeding ex-parte against the respondents, as they did not appear even after valid service of notice. It has been informed that they had not appeared before the court below.

4. This miscellaneous appeal has been preferred, under Section 299 of the Indian Succession Act, against the judgment and order dated 28.02.2011, passed by the learned District Judge, Gopalganj in Probate Case No.22 of 2009.

5. By the impugned judgment, the learned court below has dismissed the prayer of the appellant to grant probate of the registered Will dated 01.06.1998 (Exhibit 1) executed by Tapeshwar Mahto in favour of the appellant.

6. Tapeshwar Mahto had one more full brother namely, Nageshwar Mahto. The appellant is son of Nageshwar Mahto. Chandrika Mahto, the son of Tapeshwar Mahto died during lifetime of Tapeshwar Mahto leaving behind his widow, Uma Devi and his daughter, Chanpatiya. Uma Devi and Chanpatiya were party before the court below and are respondents herein.

7. It is uncontroverted case of the appellant that after death of Chandrika Mahto, Uma Devi remarried with some other person and left the house. In the circumstances, the appellant was looking after and taking care of the testator and due to love and affection the testator with his free Will executed the registered Will aforesaid.

8. While refusing to grant probate, the learned court below recorded as follows:-

“On perusal of pleading and evidence, it appears that some vital facts is missing in pleading while it is stated by witnesses in their affidavit, but in absence of such avertment in pleading, there is no use of stating these facts in affidavit specially in ex-parte evidence. It appears in pleading, it is nowhere avered that Tapeshwar Mahto offered to execute Will in favour of Bhulan Mahto and it was so accepted. Secondly, there is no averment that Shraddh of Tapeshwar Mahto was performed by Bhulan Mahto.

It is also not stated in pleading that Tapeshwar Mahto (testator) executed deed of Will with his free Will and having good mental and physical health. In absence of pleading, there is no use of such statement in affidavit only.”

9. Learned senior counsel appearing on behalf of the appellant submits that the aforesaid finding is error of record.

There is clear statement of such fact in para 3 of the petition filed under Section 276 of the Indian Succession Act before the court below, which reads as follows:-

“That out of love and affection, Tapeshwar Mahto executed a deed of Will in favour of the petitioner on 01.06.1998 in presence of witnesses which is his last Will duly executed in the pen of Shri Rajeshwar Pd. (scribe) who read out the contents of the Will before Tapeshwar Mahto and after hearing and understanding the contents of the deed of Will, Tapeshwar Mahto put his thumb impression on the deed of Will in presence of witnesses and Chandrama Prasad (P.W.2) executed the execution portion at the instance of Tapeshwar Mahto and attesting witnesses Chandrama Prasad (P.W.2) and Sheo Gobind Bhagat (not examined) signed into the Will as witnesses at the instance and presence of Tapeshwar Mahto. Tapeshwar Mahto himself presented the deed of Will before Sub-Registrar, Gopalganj and accepted the deed of Will and in this way the deed of Will was duly registered.”

10. The aforesaid statement in the petition would make it clear that there is sufficient averment to show that the Will was a free Will and executed and registered in good mental and physical health of the testator. The technical words used in the statute need not be repeated in the pleading. Therefore, the court below has apparently committed error of record in concluding that there is no pleading of free Will and disposable mental condition of the testator. Genuineness of a Will cannot be tested on the basis of absence of evidence as to who performed the Sh