( 1 ) THE main case (Suit No. 921/93) has been consolidated with Probate Petition No. 38/92 for the purpose of trial and decision because of the commonality of the disputes and evidence. Suit tiled by the plaintiff is a declaratory suit. It seeks declaration of the effect that the plaintiff is the absolute owner of the property bearing Bungalow No. 4, Rajdoot Marg. Diplomatic Enclave, New Delhi by virtue of Will dated 6. 8. 1990 executed by his father late Sh, Kartar Singh, the owner of suit property as defendant Nos. 1 and 5 have only limited right of residence in the portion of the property as described in the Plan.

( 2 ) PLAINTIFF and defendants 4 and 5 are the legal heirs of late Shri Kartar Singh whereas defendants 1 to 3 are the children of the predeceased son of Shri Kartar singh.

( 3 ) AS is apparent case of the plaintiff stems from the unregistered Will dated 6. 8. 90 whereas the defendant No. 5 Mohini, the daughter of late Sh. Kartar Singh has based her claim and sought Probate of the registered Will dated 20. 9. 85. It is not in dispute that late Kartar Singh was the owner of the suit property and, therefore, had the right to deal with the property in any manner be liked.

( 4 ) THE main question that calls for determination is which of the two Wills is valid and legally effective.

( 5 ) ACCORDING to defendant No. 5 the Will set up by the plaintiff is a forged and fabricated document as it was prepared after the demise of the testator. On the other hand the plaintiff has assailed the Will set up by defendant No. 5 Mohini on the premise that it was obtained under undue influence, pressure and coercion as the deceased Kartar Singh initially permitted defendant No. Mohini to live with him when she was in difficulty and later on Kartar Singh being on old man allowed her to stay with him as he was maintaining all the expenses including those of kitchen. Further that as per Section 62 of the Indian Succession Act, 1925, it is the last Will that prevails. Section 62 provides as under:

62. Will may be revoked or altered :- a will is liable to be revoked or altered by the maker of it at any time when he is competent to dispose of his property by will.

( 6 ) THOUGH defendants 1, 2 and 3 had filed the written statement but they did not prosecute it further nor did they produce any evidence in support of their defence. The defences set up by defendants 1, 2 and 3 is in the same vein as that of defendant no. 5.

( 7 ) THE main objection of the defendant Mohini is that the Will set up by the plaintiff, is an unregistered Will which is purported to have been executed just four months prior to the death of Kartar Singh and prima facie raises a strong suspicion as to its veracity and validity.

( 8 ) APART from this the defendant has also tried to show that it has not been made specifically clear that Kartar Singh was not keeping good health in the year 1990. It is alleged that some time in the year 1988 he was operated for Hernia and thereafter he had developed urinary problem. It was defendant No. 5 who spent on his medical treatment and even paid the funeral expenses after his death.

( 9 ) ONE of the covenants of the Will dated 6. 8. 1990 was that it shall be obligatory on the part of the plaintiff to perform the marriage of the grand daughter daminder Kaur i. e. defendant No. 2 who is presently living with her mother. According to defendants 1, 2 and 3 this covenant was introduced as a ploy and a bait for them so that they may fall in a trap of the expenses of the marriage of the daughter of defendant No. 1 to be borne by the plaintiff. Plaintiff also introduced this covenant to provide reasons for execution of the Will in his favour.

( 10 ) FOLLOWING issues have arisen for determination in Suit No. 921/1993 and PR No. 38/1992:-

S. No. 921/1993

1) Whether the Will dated 06. 08. 1990 executed by Late Sh. Kartar Singh is true and valid ?

2) Whether the suit for declaration is maintainable?

3) Relief

PR No. 38/1992

1) Whether the