JUDGMENT

PRADEEP NANDRAJOG, J.

1. This appeal is directed against the order dated 30.11.2006 passed by the learned Additional District Judge, Delhi whereby petition filed by the appellant under Section 276 of the Indian Succession Act 1925 seeking probate of the will dated 10.12.1992 purported to have been executed by Late Sh. Prabhu Singh in favour of the appellant was dismissed.

2. Late Sh. Prabhu Singh (hereinafter referred to as the deceased) who died on 28.12.1992 was survived by his wife Smt. Asarfi (respondent No.2), two sons namely Suraj Bhan (appellant), Jai Bhagwan (respondent No.3) and a married daughter Smt. Patasso (respondent No.4).

3. Suraj Bhan i.e. appellant herein filed a petition under Section 276 of the Indian Succession Act 1925 seeking probate of the will purported to have been executed by the deceased on 10th December 1992.

4. As per the said will the deceased has bequeathed following movable and immovable properties in favour of Suraj Bhan to the exclusion of his other legal heirs:-

A Plot ad measuring 120 square yards and bearing Municipal No.60, Khasra No.32/6 and 32/7, Village Matiala, New Delhi.

B Compensation of one killa which shall be granted in respect of agricultural land ad measuring 4 bighas and 8 biswas and situated in Khasra No.57/7, Revenue Estate, Village Matiala, New Delhi. (It has been mentioned in the will that compensation of one killa in respect of same agricultural land has already been received by younger son of the deceased i.e. Jai Bhagwan).

C Amount lying deposited in the saving account of the deceased with the Oriental Bank, Naraina.

5. The will in question Ex. PW-1/1 is a computer typed document and consists of a single sheet of paper. It has been typed in the English language. Towards the bottom of the sheet at the right corner a thumb impression purported to have been affixed by the deceased is affixed.

6. The will Ex. PW-1/1 is a notarized and unregistered document.

7. The will in question has been witnessed by one Sh. Man Singh and one Sh. Syed Ahmed.

8. The other legal heirs of the deceased i.e. his widow Asarfi, son Jai Bhagwan and daughter Patasso has opposed the petition for grant of probate.

9. In the objections to the petition filed by the appellant respondents has pleaded that the will Ex. PW-1/1 is a forged and fabricated document. That the deceased never executed a will in favour of the appellant. That the deceased during his life time was living under the care and guidance of respondents No. 2 and 3. That the relations between the deceased and appellant were strained evidenced by the fact that the appellant did not participate in the last rites of the deceased.

10. In the reply to the objections filed by the respondents, appellant denied that during his life time the deceased was living under the care and guidance of respondents No.2 and 3 or that the relations between him and deceased was strained. It is necessary to note following portion of the reply filed by the appellant:-

"4. .......It is pertinent to mention here that the deceased before his death used to live separately at his own house and the petitioner took best possible care and provided all the necessary treatment to his deceased father. It is reiterated that the deceased Sh. Prabhu Singh, before his death, executed a will in favour of the petitioner.

7. That para 7 of the objections is wrong false and denied except to the extent that the petitioner could not be present at the time of cremation of the deceased Sh. Prabhu Singh as he was on duty but the other family members of the petitioner were present at the time of cremation and the petitioner participated in the other last rites of the deceased Sh. Prabhu Singh. It is vehemently denied that the petitioner refused to take care of his father or that he refused to see him after his death."

11. It is relevant to note that it was only pleaded by the appellant that he used to look after the deceased but it has nowhere been pleaded