The execution of a Will must be proved by calling at least one attesting witness. The propounder has the burden of proving the execution of the Will and must show that the testator had a sound and disposing state of mind and understood the nature and effect of the disposition. If the propounder provides sufficient and cogent evidence, the court may grant probate unless there are suspicious circumstances.

JUDGMENT :

Sahidullah Munshi, J.

P.L.A. 169 of 2010 was registered at the instance of Sampat Devi Kulthia, the sole executrix of the Will and Testament dated 31st January, 2008, executed by Bhanwari Devi Kulthia. Probate petition was filed on 13th July, 2010. By an order dated 16th May, 2012 the Hon'ble Justice I.P. Mukherjee, while disposing of an application being G.A. No.1229 of 2012, directed that -

(a) The proceedings against Smt. Rajkumari Verma be treated as non-contentious cause;

(b) Smt. Sudha Soni, to file the affidavit in support of the caveat. It was held that in default, the proceeding was to be treated as non-contentious as against her.

2. By a subsequent order dated 7th September, 2016, the Hon'ble Justice R. K. Bag allowed the prayer of Rajkumari Verma to treat the proceeding as contentious one against her and to allow her to file her affidavit within an extended date. Such prayer was allowed subject to payment of a cost of 2500 G.Ms. The said Rajkumari Verma was given liberty to file affidavit within a period of two weeks only and she was directed to pay the cost to the plaintiff within the time stipulated. By the said order His Lordship modified his earlier order dated 16th May, 2012. Since the cost as directed, was not paid by Rajkumari Verma, by a subsequent order dated 8th November, 2016, His Lordship the Hon'ble Justice R. K. Bag held that the order dated 7th September, 2016 by which Court gave opportunity to Rajkumari Verma to contest the probate proceeding, stood cancelled. It was observed that since the petitioner and the contesting defendant already adduced evidence the matter should be placed for argument on 5th December, 2016. The probate proceeding is being contested only by Sudha Soni, the defendant no.1, who affirmed her affidavit on 6th June, 2012 and filed the same in Court on 30th July, 2012. The petitioner, Sampat Devi Kulthia, in her probate application, has stated that one Smt. Bhanwari Devi Kulthia, since deceased, left a Will and Testament dated 31st January, 2008 wherein the petitioner has been appointed as the sole executrix to the said last Will and Testament dated 31st January, 2008 left by the said Smt. Bhanwari Devi Kulthia, since deceased. The petitioner is the sole beneficiary and legatee of the said Will. The Will has been marked as Exhibit A. According to the petitioner, the Will dated 31st January, 2008 has been proved by the declaration of Shri Sachin Soni, being the attesting witness to the Will and also by his affidavit affirmed on 28th June, 2010, pertaining to the said Will which is also filed with the petition. According to the application filed by Sampat Devi Kulthia, the deceased left behind surviving the below-named persons as her only legal heirs and representatives and no one else who could have inherited the assets and properties of the deceased had he died intestate as per Hindu Succession Act, 1956. The legal heirs and representatives are as follows :

(i) Smt. Sampat Devi Kulthia, wife of Late Ashok Kumar Kulthia. She is the wife of pre-deceased son of Bhanwari Devi Kulthia, the testatrix and also the executrix in the aforesaid Will.

(ii) Smt. Kiran Soni, wife of Shri Sachin Soni and daughter of Ashok Kumar Kulthia, the pre-deceased son of the testatrix. She is also the granddaughter of the testatrix.

(iii) Smt. Rajkumari Bhama alias Verma alias Soni, wife of Ramesh Kumar Verma, a married daughter of the testatrix.

(iv) Smt. Sudha Soni, wife of Shri Pawan Kumar Soni, a married daughter of the testatrix.

3. While filing the probate application, Rajkumari Verma and Smt. Sudha Soni, two married daughters and legal heirs of the deceased above-named have not given their consent to the grant of probate in favour of the propounder. The testatrix above-named died leaving assets and properties both within and outside the jurisdiction of this Hon'ble Court which according to the propounder, shall be administered by her as the executrix and sole beneficiary and legatee named in the sa