Vijender Jain, J. (Oral)

( 1 ) AGGRIEVED by an order of grant of letter of administration, the Objectors/appellants have filed the present appeal.

( 2 ) IT has been contended by Mr. Chopra, learned counsel for the appellants that a suit for partition is pending in the High Court in relation to the property in question. and, therefore, the Probate Court ought to have stayed the proceedings till the decision in the partition suit pending in the High Court. He has further contended that; the Will did not inspire any confidence as the circumstances in which the Will was executed were doubtful. It has further been contended by learned counsel for the appellants that the mere fact that both the attesting witnesses were beneficiaries of the Will would create doubt about the genuineness of the Will. It has been further contended by Mr. Chopra that a material witness, advocate Tuteja was not brought in the witness box although he was an independent witness and allegedly drafted the Will and got the same registered in the office of the Sub Registrar.

( 3 ) IT has been further contended by learned counsel for the appellants that even Chander Bhan was deliberately withheld by the respondents as he could have thrown light on the genuineness of the Will. Lastly, it has been contended by learned counsel for the appellants that the Testatrix being a lady of old age was not of sound disposing mind and no evidence of doctor has been brought on record in support of contention by the respondents that the Testatrix was of sound disposing mind.

( 4 ) ON the other hand, learned counsel for the respondents has stoutly defended the impugned order of grant of letter of administration in favour of the respondents.

( 5 ) I have given my careful considerations to arguments advanced by learned counsel for the parties.

( 6 ) FROM the pleadings of the parties, following issues were framed by the Trial Court:-

(1) Whether the Will dated 21. 5. 1992 propounded by the petitioner is the last Will and testament of late Smt Krishna Devi widow of late Sh. Pyarelal and if so whether her said Will was validly executed and is genuine or not?

(2) Relief.

( 7 ) COMING to the First submission of learned counsel for the appellants to the effect as to whether in view of the pendency of the suit for partition of the property in question it was obligatory on the part of the Trial Court to have stayed the proceedings in the Probate case. In my considered opinion, suit for partition is altogether for a different purpose and exercise of power for Probate is altogether a different jurisdiction. Merely pendency of a suit for partition is no bar for grant of Probate or letter of administration under the provisions of Succession Act.

( 8 ) COMING to the next argument of learned counsel for the appellants that the signatures of the Testatrix on Ex. Public Witness 1/1 and signatures on the Sale Deed RW1/a are materially different. The Trial Court took into consideration an affidavit marked a which was filed by a witness of the appellants RW4 Jagdish Chandra. Mark a was the photo copy of the affidavit of the Testatrix late Smt. Krishna Devi which has been given to Smt. Krishna. Devi on 29th June, 1989 and the signatures appearing on the Will Ex. PW1/1 and the affidavit marked a which was a document produced by the witness of the appellants, it was held by the Trial Court that from the bare perusal from naked eye, the signatures are similar. Therefore, the argument advanced by learned counsel for the appellants that the signatures on the Will Ex. PWI/l differs from the signatures on the Sale Deed loses its significance in view of the admitted document produced by the appellants before the Trial Court which had the signatures of deceased Smt. Krishna Devi similar as that of Ex. PW1/1.

( 9 ) WITH regard to the arguments of health and capacity to make a Will, there was the testimony of Public Witness 4 as well as RW2 and RW4. The witnesses of the appellants, while diposing in favour

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