JUDGMENT :

GAUTAM KUMAR CHOUDHARY, J.:

Instant miscellaneous appeal has been filed under Section 299 of the Indian Succession Act against the judgment dated 4th October, 2012 passed by learned Judicial Commissioner-IV, Ranchi in Probate Title Suit No. 01 of 2012 whereby and whereunder the application for probate was dismissed.

2. The probate application is filed with respect to the WILL of Shakuntala Devi Mehta, who died on 1st February, 2010. The legatee of the WILL is executor-Sanjay Kumar Datta and the bequeathed property is 16 Katha 06 Chhatak land with a double storied building, shops boundary wall within the municipal corporation of Ranchi which was the self-acquired property of the testator. Testator had no son and the legatee is maternal grandson of the testator.

3. The WILL was executed on 28.10.1998 and the three attesting witnesses are namely Nand Kishore Singh, Ramesh Prasad Kesri and Mehta Madan Lal. Dr. S.K. Gupta endorsed on the WILL that the testator was in sound physical and mental health. Signature of the testator has been identified by one Advocate.

4. The probate application has been contested by O.P. No. 2, who is the daughter of the testator and O.P. No. 3-Malaya Dutta is the grand-son (Nati), who have filed their objection petition/written statement dated 06.08.2011.

5. According to the case of the objectors, they were residing in the same property with the deceased. The applicant was not the executor of the said WILL and as such had no locus standi to invoke the provision of the Section 276 of the Indian Succession Act, 1925. Shakuntala Devi was residing in the building detailed in the schedule property with the O.P. Nos. 2 & 3, who are daughter and maternal grandson. The execution of WILL has been disputed and claimed that it was forged and fabricated in connivance with the witnesses. Shakuntala Devi had lost her memory and was not capable of understanding the things. Shakuntala Devi died on 01.02.2010 and after her death, they had inherited the property and were jointly in possession.

6. It is further pleaded that Partition Suit No. 577 of 2010 had been filed by O.P. No. 3 against the applicant and other opposite parties claiming a decree for partition of 1/4th share in the property which is the subject matter of the alleged WILL.

7. On the basis of the pleadings of the parties following issues were framed: –

I. Whether the present probate case as preferred by the petitioner is valid, lawful and maintainable in its present form?

II. Whether the WILL allegedly executed by Shakuntala Devi Mehta since deceased is genuine, lawful and valid for issuance of the probate in favour of the petitioner?

III. Whether the WILL, subject matter of the probate case, was obtained under misrepresentation, fraud, undue influence and under a conspiracy hatched out by the petitioner and defendant no. 4?

IV. Whether there was any valid ground for the executant to make a WILL in favour of the petitioner keeping in view the fact that defendant no. 2 happened to be her only child and the petitioner happens to be the eldest son of said defendant no. 2 whereas the defendant no. 3 is the other son of heirs?

V. Whether the present probate case is liable to be dismissed on the ground that the WILL in question is no a genuine one rather the same is a forged and fabricated one?

VI. To what relief or reliefs the petitioner is further entitled to?

8. Altogether four witnesses have been examined on behalf of the applicant, which includes attesting witnesses Ramesh Prasad Kesri, Mehta Madan Lal (husband of the testator). Apart from the attesting witnesses PW-1 and PW-2, the applicant and one witness have also been examined. The WILL has been proved and marked as exhibit. The signatures of the typist, attesting witnesses, the certificate of fitness of the testator given on the WILL itself given by Dr. S.K. Gupta, signature of the Advocate and the Notary Public has also been proved.

9. Three witnesses have been examined on behalf of the opposite party a