Pradeep Nandrajog, J.

.1. Challenge is to the order dated 15.09.2007 passed by the Court of Additional

.District Judge, where the appellant remained unsuccessful in convincing the Learned. Judge about the genuineness of a Will, marked "X" dated 01.02.1991.

2. Late Smt. Jitni Devi (hereinafter to be referred as testatrix) is said to have executed a will on 1st February 1991 under which she purportedly left her entire property in favor of the appellant. The will completely excludes the only natural-born child of the testatrix i.e. a daughter named Smt. Subhadra Kumari. She is the objector to the will in question for which probate has been sought.

3. Facts of the instant case reveal and neither side is at dispute over the point that testatrix was suffering from a lung disease and was admitted in the hospital at Ballia, Uttar Pradesh on 26th January, 1991 i.e. 4-5 days before she is said to have executed the will, and that she died on 4.2.1991 i.e. 3 days after execution of the will.

4. The creation of the will may be penned through the testimony of PW-3, Sh. Hare Ram Pandey who claims to be the scribe of the will. But before that it would be relevant to record that Hare Ram Pandey is the brother of the father-in-law of the sister of the propounder of the will namely Shri Vijay Kumar Tiwari, the appellant. In his testimony said I had scribed the will mark X under the instructions of Smt. Jitni Devi in Ballia Hospital where she was admitted...at the time when I scribed the document mark X, mother of petitioner, whose name I do not know, Rameshwar Nath, Shiv Bachan Verma and 5-7 other persons whose name I do not know were present by the side of Jitni Devi- I wrote mark X as per the instructions given by Jitni Devi and after writing the same, I read over the same to her- Jitni Devi delivered the document mark X to me with the instructions to preserve the same and that she will back on her return back from Delhi (portion underlined to highlight that the syntax error is as in the original testimony)...this will remained with me up to 1994. In cross-examination Hare Ram Pandey stated it was after 10-15 days Shiv Bachan Verma on return from Delhi informed me in office that Smt. Jitni Devi had expired. I did not send any condolence message to the petitioner, objector or her husband or to the petitioners father. Uptill 1994. I did not inform the petitioner about the execution of the will mark X Jitni Devi in his favour.

.5. Propounder of the will, PW-4 Vijay Kumar Tiwari, deposed in examination-in-chief by way of an affidavit. He stated that his biological father Shri Jai Mangal Tiwari was the real brother of Rameshwar Tiwari, the husband of the testator and that he was adopted by them as a son and that on account of love and affection towards him, Jitni Devi had executed the will mark X in his favour. In his cross-examination, he stated My date of birth is 14.7.1972. I do not know on which date I was taken in adoption. I am XIIth pass. I had taken my school leaving certificate which is available with me. The name of my father mentioned in my school leaving certificate is Shri Jai Mangal Tiwari- The name of my father in my election identify card is also recorded as Shri Jai Mangal Tiwari. It is correct that on the date election identity card was issued to me, I had already attained the age

.of more than 18 years. It is further correct to suggest that I myself had disclosed the name of my father as Shri Jai Mangal Tiwari while giving a declaration for issuance of election identity card to me. I did not mention in any document prior to filing of the present suit that I am an adopted son of Shri Rameshwar Tiwari- I came to know about the will of my Tai Ji late Smt. Jitni Devi after 3 years of her death. My sisters father-in-law Shri Hare Ram Pandey had told me about the will of the testatrix late Smt. Jitni Devi and it was he who had handed over her original will to me after 3 years of her death- I got the testatrix treated first