JUDGMENT

K. Ramamoorthy, J.

1. In Probate 24/73 the petitioners propounded the Will of late Kundan Singh. In Probate 32/78 the same petitioners propounded the Will of late Polo Singh, who was the elder brother of Kundan Singh.

2. The objector to the probate case 24/73 is the daughter of Kundan Singh Smt. Gurbax Kaur. The objectors to the probate case 32/78 are the widow of Polo Singh Smt. Gurbachan Kaur and her daughter Guridner Kaur.

3. A brief outline of the story of propounder of the two Wills has to be given. One Chanda Singh had 5 sons and a daughter:

1. Rulia Ram

2. Paras Ram

3. Polo Singh

4. Kundan Singh

5. Mange Ram

6. Parsi Devi

Rulia Ram died in 1951 leaving behind the two sons Pritam Singh and Hari Singh.

4. Paras Ram died in 1939 leaving behind Amar Singh and two daughters who had been married.

5. These two sons of Rulia Ram, Pritam Singh and Hari Singh and son of Paras Ram, Amar Singh are the petitioners in both the probate case.

6. Polo Singh died on 4.11.1977.

7. Kundan Singh died on 17.8.1971.

8. Mange Ram died in the year 1982 unmarried. We are not concerned with Parsi Devi. She had been married and gone to her husband's family.

9. Polo Singh and Kundan Singh were doing business on a small scale. The two elder brothers of Polo Singh died when their children were young, the petitioners were looked after by Polo Singh and Kundan Singh as their own children.

10. On 2.12.1963 Kundan Singh executed a Will. The Will is in English bequeathing the properties in favour of the petitioners. The wife was appointed as the executrix. The wife and the daughter were not given anything. Kundan Singh died on 17.8.1971.

On 8.3.1973 petition for probate bearing No. 24/73 was presented in this Court. The wife of Kundan Singh died in 1966. At the end of the petition, the attesting witness Mushtaq Rai Khanna had given the following statement:

"I, Mushtaq Rai Khanna, Member, Delhi Municipal Corporation one of the witnesses to the aforesaid last will and testamount of the testator mentioned in the above petition declare that I, was present and saw the testator fixing his signatures thereto. The said testator acknowledges the writing enclosed to the above petition to be his last will and testamount in my presence."

11. There is no statement like this from Dr.Sohan Singh, who is alleged to be the other attesting witness.

12. On 15.3.1976 the daughter of Kundan Singh Gurbax Kaur filed her objections repudiating the claims of the petitioners. It is not necessary to get out the averments in the objections. She put the petitioners to strict proof of their case.

13. Apparently, with a view to countering the case of the daughter, the petitioners get an affidavit from Mushtaq Rai Khanna. It is dated 6.5.1976 and attested by a Notary Public on the same date. The affidavit reads as follows:

"Affidavit of Shri Mushtaq Rai Khanna son of Shri Ganesh Dass Khanna, aged about 70 years, r/o House No. 2859 Gali No.5 Chuna Mardi, Paharganj, New Delhi.

I, the above named deponent do hereby state, on solemn affirmation as under:-

1. That I knew Shri Kundan Singh son of Shri Chanda Singh resident of 16/26 WEA Karolbagh, New Delhi.

2. That Shri Kundan Singh expired in the year 1971.

3. That the said Shri Kundan Singh executed a will to which I am the attesting witness.

4. That the said deceased Shri Kundan Singh signed the said will in my presence and I attested die same after the same was read out and explained to him.

5. That the said Shri Kundan Singh had specifically told that he is executing this will in favour of Shri Hari Singh, Pritam Singh and Amar Singh and by execution of this will, he is disentitling the right of any property to his daughter Shmt. Gurbax Kaur.

6. That at that time, I was the member of the Delhi Municipal Corporation."

The petitioners also managed to get an affidavit from Dr. Sohan Singh, who is alleged to have attested the Will. This is also dated 6.5.1976 and attested by the Notary Public on the same da