V.K. SHALI, J.

1. This is an appeal filed by the appellants against the judgment dated 17.1.2011 passed by learned Additional District Judge-06, Delhi in Probate Case Nos.258/2006 titled Ramesh Katyal vs. State and 562/2006 titled Neeraj Katyal & Ors. vs. State & Ors.

2. Briefly stated the facts leading to filing of the present appeal are that one Hari Narain Katyal, father of Ramesh Katyal and grandfather of Neeraj Katyal and Gourav Katyal is purported to have made a Will dated 21.7.1998 in respect of a house bearing No.A-284, Derawal Nagar, Delhi measuring 500 square yards in favour of his three grandsons. Two cases came to be filed; one by Ramesh Katyal s/o Hari Narain Katyal bearing No.258/2006 in which he claimed letter of administration in respect of the aforesaid house on the ground that his father had died intestate and therefore, he and his brother Yashpal Katyal had inherited the property in the proportion of one-half each. As against this, Neeraj Katyal and two others, who are the sons of Yashpal Katyal had filed a separate probate case bearing No.562/2006 making Ramesh Katyal, their uncle and their own father Yashpal Katyal as respondents by setting up a Will dated 21.7.1998 purported to have been executed by their grandfather. Both these matters were clubbed together and following issues were framed :-

Issues framed in P.C. No.562/2006

“1. Whether the Will dated 21.7.1998 of Sh. Hari Narain Katyal is proper and valid ? OPP

2. Whether the petition has not been properly verified ? OPR-2

3. Whether the Will dated 21.7.1998 of Sh. Hari Narain Katyal is forged and fabricated ? OPR-2

4. Whether the petitioner is entitled to the grant of probate and letter of administration in respect of the Will dated 21.7.1998 of Sh. Hari Narain Katyal ? OPP

5. Relief.”

Issues framed in P.C. No.258/2006

“1. Whether the deceased Sh. Hari Narain Katyal died intestate as claimed by the petitioner ? OPP

2. Whether the petition is not maintainable in view of preliminary objections taken by the respondents/objectors Yashpal Katyal, etc. in their written statement/objections? OPR

3. Relief.”

3. The case filed by Ramesh Katyal was treated as a lead case and he filed his affidavit Ex. PW1/A. Apart from his examination, one R.S. Verma is examined as PW-2, Manish Narang is examined as RW-1, the respondent/objector, Neeraj Katyal examined himself as RW-2, Naresh Kumar Parashar as RW-3 and Q.L. Kanijow, Advocate as OW-1. Both RW-1 and OW-1 are the attesting witnesses to the Will (Ex. RW 2/2).

4. The trial court dismissed the probate petition filed by Neeraj Katyal and two other holding that the Will purported to have been set up by Neeraj Katyal was fraught with suspicious circumstance and cannot be relied upon. It granted letter of administration to Ramesh Katyal to share the property in the proportion of one-half each in his favour and his brother Yashpal Katyal. The reason for saying that the Will of the deceased testator was surrounded with suspicious circumstance was that the deceased testator Hari Narain Katyal, had stated in the Will dated 21.7.1998 that he is creating a life interest to the extent of 1/3rd in the property in favour of his wife Vidya Wati while as admittedly Vidya Wati had died on 21.11.1997, much before the Will was made.

5. The appellant, Neeraj Katyal and others feeling aggrieved by the said findings of the learned Additional District Judge have filed the present appeal.

6. I have heard Mr. P.K. Aggarwal, the learned counsel for the appellant and Mr. Sanjeev Anand, the learned counsel on behalf of the respondent, Ramesh Katyal and have also gone through the record.

7. Mr. Aggarwal, has contended that learned Additional District Judge has passed an erroneous finding by rejecting the Will dated 21.7.1998 without deciding upon the genuineness of the Will. It was contended by him that the probate court has to consider the proof of Will in order to see whether it is genuine or not. It was contended that it does not l