The central legal point established is that there is no legal bar for a Swami to own properties and make a Will, as per the Indian Succession Act, 1925 and relevant case law.

VALMIKI J. MEHTA, J.

By this judgment, Test Case 15/1994 and Test Case 9/2000 are being disposed of. Whereas, Test 15/1994 is a petition by the named executor/petitioner seeking probate of the Will of late Swami Amar Muni Ji, the Test case 9/2000 is a petition seeking letters of administration to the properties of Swami Amar Muni Ji by his co-brother Swami Gurudev Muni Ji in a religious sect-the Udasin Sect- and of which sect Swami Amar Muni Ji was said to be a member.

Before proceeding to pass judgment, I must note that the real brother of late Swami Amar Muni Ji i.e. namely Mr. Surjit Singh has already filed a no objection for grant of the probate in Test Case 15/1994 by way of affidavit dated 29.7.1994.

Test Case No. 15/1994

1. This petition seeking probate has been filed by the executor of the Will namely Swami Dr. Kishore Das Ji. Probate has been sought with respect to the Will dated 8.10.1993 of late Swami Amar Muni Ji. Swami Amar Muni Ji had two immovable properties. One being D-120/121 Lajpat Nagar, New Delhi and another being a plot of land admeasuring 1 bigha, 13 biswas and 13 ½ biswansi at Patta Khasra No. 4/23, Situated at Village Phupatwala Kalan, Jawalapur, Haridwar now Uttrakhand, and which was originally in the State of UP. Late Swami Amar Muni Ji also had certain movable assets as stated in schedule A to the petition.

2. On 26.4.1994, notices were issued and citation was ordered to be published. Objections have been filed by one Swami Gurudev Muni, objector no.2 and who is the petitioner in probate petition no. 9/2000. Another set of objections were filed by one Sh. O.P. Gupta qua the Lajpat Nagar property, however, Sh. O.P. Gupta has led no evidence in support of his objections. In fact, counsel for the parties state that Sh. O.P. Gupta expired during the pendency of this petition and his legal heirs were not brought on record. The objection petition filed by Sh. O.P. Gupta is therefore dismissed as abated.

3. Swami Amar Muni Ji was the Parmadhyaksh of Swami Ram Tirath Mission. He died at New Delhi on 28.12.1993. As already stated, the petitioner states that Sh. Amar Muni Ji, before his death executed a Will dated 8.10.1993, which is said to be the last Will and testament of late Sh. Amar Muni Ji. By the Will, Sh. Amar Muni Ji bequeathed his properties in favour of the petitioner who is a Parmadhyaksh of Swami Ram Tirath Mission.

4. Before it is held that the Will is proved for a probate to be granted on the same, it is necessary that it should be proved to be executed by the deceased testator, it should be proved that the attesting witnesses saw the testator signing the Will, and, that the attesting witnesses signed in the presence of the testator. Another important requirement is that the testator must be of a sound disposing mind. In the present case, there is no issue urged on behalf of the objector that Swami Amar Muni Ji was not in a sound disposing mind. I have only to see whether the Will in question dated 8.10.1993 of Swami Amar Muni Ji was duly executed and attested as required by law.

5. There are two attesting witnesses to this Will dated 8.10.1993. The first attesting witness is Sh. Lalit K. Malhotra. The second attesting witness is Sh. O.P.Wadhwa. Sh. Lalit K.Malhotra is the owner of a hotel and was a disciple of late Swami Amar Muni Ji and Swami Amar Muni Ji is said to have sometimes resided at the residence of this attesting witness Sh. Lalit K. Malhotra. The second attesting witness Sh. O.P.Wadhwa retired as Assistant Director from the Ministry of Planning, Department of Statistics, S.P.Bhawan, New Delhi.

6. Both the attesting witnesses have deposed in Court. Sh. Lalit K. Malhotra has deposed as PW-1. Sh. O.P.Wadhwa has deposed as PW-3. A reference to the affidavits of both these attesting witnesses show that they have deposed to the testator signing the Will in their presence and these attesting witnesses signed in the presence of the testator. In my opinion, therefore, the Will dat