Veena Birbal, J.:--

1. This is an appeal under Section 299 of The Indian Succession Act, 1925 (hereinafter referred to as ‘the Act’) against impugned judgment dated 18.04.2011 passed by the court of learned Addl. District Judge (Central) Delhi wherein the petition filed by the respondent No. 1 seeking probate of Will Ex.PW1/1 has been allowed.

2. The facts relevant for the disposal of the present appeal are as under:- The respondent No. 1 herein i.e. Anil Kumar was the petitioner before the learned District Judge, Delhi. He had filed a petition under Section 276 of the Indian Succession Act for the grant of probate of Will dated 05.04.1995 alleged to have been executed by Smt. Manno Devi. The husband of Manno Devi and grandfather of respondent No. 1 were brothers. As per respondent No. 1, Smt. Manno Devi i.e. testatrix had died on 09.02.2004. She had executed a Will during her lifetime on 05.04.1995 which was registered with the office of Sub Registrar, Delhi on that very day itself. It is alleged that in the said Will Smt. Manno Devi had bequeathed her share in a residential house as well as in the agricultural property in favour of respondent No. 1. It was alleged that the aforesaid Will was the only Will of the testatrix. It was her last Will. It was further alleged that the testatrix had not executed any other Will. No other petition under Section 276 of the Act for the grant of probate in respect of aforesaid Will had been filed by the respondent No. 1/petitioner in any other court for adjudication except the present Will. The prayer was made before the learned Addl. District Judge for grant of probate of aforesaid Will having been registered in the office of the Sub Registrar, Delhi on 5.4.1995. The petition also bears the verification by one of the attesting witnesses to the Will, namely, Sh. M.N. Sharma, Advocate.

3. The objections were filed by the appellants i.e. respondents Nos. 4 to 6 before the learned Additional District Judge contending therein that the Will in question was false and fabricated one. The testatrix was neither mentally nor physically fit. She was not in a position to execute any Will on the day when the same is alleged to have been executed. They had also taken a stand that the suit for partition bearing No. 415/2003 is pending between the parties before Additional District Judge, Delhi, wherein the respondent No. 1 had relied upon two Wills, one executed by Jeet Ram i.e. his grandfather and the other executed by Smt. Manno Devi i.e. Will in question. It is alleged that in the said case the respondent No. 1/petitioner has failed to prove the Will of Sh. Jeet Ram. It is alleged that both the Wills are alleged to have been executed on the same date and witnessth by same witnesses. It is submitted that as the petitioner has failed to prove the Will of Jeet Ram as such it can’t be said that Will in question stands proved. The respondents No. 2 and 3 before the learned Addl. District Judge i.e. respondents No. 2 and 3 herein also raised the similar objections. However, they have not challenged the impugned judgment.

4. On the basis of pleadings of the parties, the following issues were framed on 20.02.2008:--

“1. Whether the deceased Manno Devi has validly executed the Will dated 05.04.1995, while in sound disposing mind? OPP

2. Relief.”

5. Before the Probate Court, the respondent No. 1/petitioner examined himself as PW1, Sh. Rakesh Ranjan as PW2, Sh. Sushil Kumar as PW3 and Sh. M.N. Sharma, Advocate as PW4. The appellants/objectors did not lead any evidence despite opportunity given. On the basis of evidence adduced by the respondent No. 1/petitioner as well as material on record, the learned Additional District Judge vide impugned order held that the testatrix was of sound disposing mind and had executed the Will in question and accordingly ordered that the Will Ex.PW 1/1 (PW 4/1) be probated in favour of respondent No. 1/petitioner on his furnishing stamp duty/administration bond-cum-surety bond.

6. Aggriev

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