The main legal point established in the judgment is the importance of due execution and attestation of a Will, and the lack of medical evidence to prove unsoundness of mind.

Valmiki J. Mehta, J. (Oral)

1. This first appeal is filed impugning the judgment of the probate court dated 24.8.2002 by which the probate petition filed by the petitioner has been dismissed. Petitioner/appellant/Sh. Rohtas Singh is one of the sons of the deceased testator Sh. Than Singh, and he seeks probate of the Will dated 6.10.1989 of his father who died at Delhi on 15.1.1991.

2. Before the probate court, the appellant/petitioner proved the Will dated 6.10.1989 of late Sh. Than Singh testator as Ex.P1 as per the testimonies of both the attesting witnesses. Both these attesting witnesses deposed to the due execution and attestation of the Will. Both the attesting witnesses to the Will namely Sh. Devender Kumar Sharma, Advocate (PW- 1) and Sh. Naresh Kumar Verma (PW-2) were cross-examined. Nothing material was elicited in the cross-examination as regards the execution and attesting of the Will as also the mental soundness of the deceased testator to execute the Will. Witness from the office of the sub Registrar also appeared as PW-3, and he proved the registration of the Will as document no.3408 in Book no.3, Volume 1017 at pages 128 to 133 on 6.10.1989. PW-5 Ravi Kumar Aggarwal, was the Advocate who had defended the deceased Sh. Than Singh in the suit no.166/1998 filed by Sh. Baljeet Singh- the brother of the wife of one objector Sri Bhagwan/one son of deceased Sh. Than Singh.

3. In spite of the fact that the Will as required in law stood duly proved as stated above, and the same was also proved to be duly registered, the court below has disbelieved the Will holding that there existed suspicious circumstances and hence the Will cannot be probated. It be noted that the reasons given by the trial court do not very much touch upon the actual execution, attestation and registration of the Will. The reasons given by the trial court are as under :-

“(a) The testator had three sons. By virtue of Will Ex.OW-4/1, dated 21.8.1986, (which has not been disputed by the petitioner himself, as it also finds mention in the subsequent Will Ex.p1 dated 6.10.1989); the testator had bequeathed his properties almost equally in favour of the three sons. Generally speaking, objector of making a Will is to deprive of heir wholly or partly. If the testator prefers a particular heir, the other cannot have any grievance provided it is on account of free volition of the testator. In this particular case, in the Will/codicil Ex.P1 dated 6.10.1989, by virtue of which the earlier Will OW4/1 dated 21.8.1996 was revoked, gives a reason for revocation of the earlier Will. The reason is that the behavior of other two sons i.e. Sri Bhagwan and Jaswant Singh is cruel towards the testator, his wife, his eldest son Rohtash, as also good behavior of Rohtash towards the testator and his wife. In the Will Ex.P1, the testator has also mentioned that in the month of September, 1989, his sons Sri Bhagwan and Jaswant Singh had threatened him to handover the properties alongwith residential flat bearing No.28, Block-FD, Pitampura Residential Scheme and had also forged some documents in order to grab the property during his life time in order to exclude his eldest son Rohtash Singh. It is further mentioned that the two sons Sri Bhagwan and Jaswant Singh alongwith their wives had also given beatings to him. A perusal of DD entry No.39-B, dated 13.9.1987, Ex.R1, purported to be lodged by testator Than Singh at police station Saraswati Vihar, is to the effect that at about 1:45 PM, six persons had come to his house. Two persons caught hold of his arms whereas one person obtained his thumb impression on one paper. It is further mentioned in the DD entry that one of persons was Ramphal, who was the brother of the wife of his son Sri Bhagwan. In fact, a suit for mandatory injunction was also filed by Baljeet Singh against testator Than Singh wherein a defence was taken kin the written-statement that certain persons, as mentioned in the police report, had obtained his