JUDGMENT :

V. KAMESWAR RAO, J.

1. These two appeals have been filed by S. Jasdeep Singh Kalsi challenging the order of the learned Single Judge in TEST.CAS. Nos. 57/2009 and 40/2016, whereby the learned Single Judge has granted probate of the Will dated July 01, 1997 registered on December 15, 1997 ((Ex.RW-3/1) in favour of joint executors Anil Dip Singh Kalsi and Jasdeep Singh Kalsi. The Testamentary Case No.57/2009 was filed by Anil Dip Singh Kalsi, who sought probate of the Will dated July 01, 1997 which was duly registered on December 15, 1997, whereby the Anil Dip Singh Kalsi was bequeathed the entire property of P-83, NDSE, Part-II.

2. The Probate Case No. 40/2016 was filed by S. Jasdeep Singh Kalsi and Harpreet Singh Kalsi as a Probate Case No.177/2007 claiming share in the property number P-83, NDSE, Part-II, as per the registered Will dated December 21, 1987 before the learned District Judge. In the said Probate Case i.e. No.177/2007, the objections were filed by Anil Dip Singh Kalsi (petitioner in Testamentary Case No.57/2009). The learned District Judge decide the issue on validity of Will dated December 21, 1987 and granted a Probate Certificate in favour of S. Jasdeep Singh Kalsi and Harpreet Singh Kalsi. As the issue of propounding the Will dated July 01, 1997 was pending before the High Court and sub-judice, thus the said issue was not decided.

3. Anil Dip Singh Kalsi challenged the order dated July 10, 2014 passed by the learned ADJ by filing FAO No.34/2014, wherein with the consent of the learned Counsel for both the parties the judgment dated July 10, 2014 and the subsequent correction made on July 21, 2014 was set aside. The Probate Case No.177/2007 was transferred to this Court and numbered as Testamentary Case No.40/2016.

4. It may be stated here that the learned counsel for the parties had consented that the evidence led in Probate Case No.177/2007, re-numbered as Testamentary Case No.40/2016 would be read in both the Testamentary cases and the validity of the two Wills in both the Testamentary Cases be decided together.

5. Whereabouts of Late Shri Ajit Singh Kalsi, R/o P-83, South Extension, Part-II were not known since May 18, 2000 having been last seen on May 17, 2000. He has not been heard for 7 years by those who would have naturally heard of him if he had been alive, in terms of Section 108 of the Indian Evidence Act, Sardar Ajit Singh Kalsi would be deemed to be dead on May 18, 2000. Sardar Ajit Singh Kalsi was survived by five sons namely Gurmeet Singh Kalsi, Ranbir Singh Kalsi, Anil Dip Singh Kalsi, Harpreet Singh Kalsi and Jasdeep Singh Kalsi, his wife Smt. Kamal Kalsi having pre-deceased him.

6. To propound the first Will, Jasdeep Singh Kalsi examined Vibhu Kapoor an attesting witness of the first Will as PW-1 and himself as PW-2. By virtue of the first Will Ex.PW-1/A equal shares were granted to the five sons of Ajit Singh Kalsi in the Dehradun Property known as ‘Kalsi Villa’ Dehradun and the land attached thereto, however, the property bearing No.P-83, NDSE was bestowed as under:

“(1) Shri Jasdip Singh Kalsi – The ground floor of the said house which is at present self occupied and Barsati at second floor with the toilet and small kitchen in the stairs (which is at present occupied by Shri Jasdip Singh Kalsi). The second floor Barsati along with small kitchen in the stairs and toilet will be made available to Ranbir Singh and or Harpreet Singh in case these are required for their temporary residence. All moveable property, shares, deposits in Bank etc. will go to Shri Jasdip Singh Kalsi and nobody else will have any share or title to the said property. 2) Shri Harpreet Singh Kalsi – The first floor (at present on rent) of the above house No.P-83, N.D.S.E. II will go to my son Shri Harpreet Singh Kalsi absolutely and he will be entitled to deal with it in any manner he likes. 3) Shri Anil Deep Singh Kalsi – The second floor of the above house No.P-83, N.D.S.E.II (except the old room, toilet and small