The main legal point established is that the burden of proving the testator's mental condition lies with the objector, and that irrelevant issues cannot affect the grant of probate.

SANJAY KISHAN KAUL, J.

( 1 ) THE petitioner has filed this probate petition u/s 276 of the Indian succession Act, 1925 for grant of probate of the last Will and testament of late mrs E. J. Browne dated 18. 08. 1986. The deceased was a permanent resident of delhi and passed away on 28. 03. 1995 leaving behind the petitioner and respondent no. 2 as the legal heirs being the daughter and son respectively.

( 2 ) THE details of the property have been set out in Annexure C to the petition and basically consists of property bearing no. 251, Sukhdev Vihar, New delhi constructed on a plot of land measuring 300 square yards apart from the household articles. Objections were filed by by respondent no. 2 and issues were framed on 14. 02. 2000, which are as under: 1. Whether Mrs. E. J. Browne was not in a proper state of mind at the time she executed a will dated 18th August, 1986? and that the same was procured by fraud? OPD. 2. Whether any power of attorney was ever executed by the petitioner in favour of Mr. Benson Augustine?

( 3 ) THE petitioner has appeared in the witness box as PW1 while one of the attesting witness. Mr. Benson Augustine appeared as PW2. Respondent no. 2 appeared in the witness box himself and one Mr Rajinder Singh Jaggi appeared as RW2.

( 4 ) THE matter was on board for final hearing, but none appeared for the respondents. The arguments were concluded by learned counsel for the petitioner on 23. 01. 2006, but in view of the absence of respondent no. 2, adverse orders were deferred till today. The matter was called over once and passed over. On both occasions, none appeared for respondent no. 2. Thus I proceed to decide the petition in the absence of respondent no. 2 as the pleadings, documents and the evidence is available on record.

( 5 ) THE first issue arises from the objections filed by respondent no. 2. A perusal of the objections shows that the respondent no. 2 has taken a stand that the testator was not in a fit mental condition to execute the Will of which probate is sought and that the Will had been procured by fraud as a result of collusion between the petitioner and the attesting witness. It may be noticed that the Will is a registered Will. It is stated that the Will was executed on 18. 08. 1986 when the testator had been impaired of the motor function of nerves causing immobility and was very feeble and ill and was not in a state of mind to have executed the Will, which is now sought to be probated. It is necessary to note that the testator had initially executed a Will dated 04. 04. 1984 bequeathing the share in the property in two equal shares to the petitioner and respondent no. 2. This was superseded by another Will dated 29. 11. 1985 in terms whereof respondent no. 2 became the sole beneficiary of the property in question. The last Will and testament is dated 18. 08. 1986 in terms whereof once again the petitioner and respondent no. 2 are beneficiaries in equal shares. Equal share has been given in the land, but the constructed portion has fallen to the share of respondent no. 2.

( 6 ) THE petitioner has appeared as PW1 and has substantiated what has been averred in the plaint. In her cross examination, she has denied the suggestion that she had separated from her family, or that, she had gone out of India contrary to the wishes of the testator, her mother. She has stated that the testator was in sound disposable mind and that she came to know about the Will when she visited the testator in 1989. The Will is stated to have been sent by post to the petitioner. The attesting witness Mr. Benson Augustine appeared in the witness box as PW2 and stated that he was present at the time when the testator executed the Will and that the testator signed in his presence and in the presence of the other attesting witness and both the witnesses signed in the presence of the testator and in the presence of each other. The witness has also stated that the testator was in sound health. The witness has further stated

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