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1989 Supreme(All) 258
HIGH COURT OF ALLAHABAD
A.N. DIKSHITA, J.
Prigya Sharma - Appellant
Versus
Dropti Sharma - Respondent
First Appeal From Order No. 724 of 1985
Decided on : May 05, 1989
A.N. Bhargava, Rajesh Tandon
The court has the discretion to admit secondary evidence to prove the contents of a lost will, and the appellate court will not ordinarily interfere with the exercise of such discretion.
Headnote:
WILL - PROBATE - EXECUTION AND ATTESTATION - PROOF - SECONDARY EVIDENCE - ADMISSIBILITY - LOST WILL - DISCRETION OF COURT - INTERFERENCE BY APPELLATE COURT.
Fact of the Case:
Appellant challenged the grant of probate to respondent no. 1, claiming that the will was not executed by her father, Sri Girish Chandra Sharma, and that the photostat copy filed by respondent no. 1 was fictitious. Respondent no. 1 produced evidence to prove the execution of the will, including the testimony of the scribe and attesting witnesses, as well as a comparison of signatures on the will and other documents.
Finding of the Court:
The court found that the photostat copy of the will was a true copy of the original will and that the signatures on the will were genuine. The court also found that Sri Girish Chandra Sharma was mentally sound at the time of executing the will and that he had the intention to execute the will.
Issues: 1. Whether the will was executed by Sri Girish Chandra Sharma? 2. Whether the photostat copy of the will was a true copy of the original will? 3. Whether Sri Girish Chandra Sharma was mentally sound at the time of executing the will? 4. Whether Sri Girish Chandra Sharma had the intention to execute the will?
Ratio Decidendi: 1. The court held that the will was executed by Sri Girish Chandra Sharma based on the evidence of the scribe and attesting witnesses, as well as the comparison of signatures on the will and other documents. 2. The court held that the photostat copy of the will was a true copy of the original will, as it was proved by the scribe of the will and the attesting witnesses. 3. The court held that Sri Girish Chandra Sharma was mentally sound at the time of executing the will, as there was no evidence to suggest otherwise. 4. The court held that Sri Girish Chandra Sharma had the intention to execute the will, as he had expressed his desire to do so to the scribe of the will.
Final Decision: The court dismissed the appeal and upheld the grant of probate to respondent no. 1.
A. N. Dikshita, J
1. Smt. Prigya Sharma, defendant-appellant (hereinafter called the appellant) being aggrieved by the judgment and decree dated 18-9- 1985 passed by Sri M. K. Mittal, Ilnd Additional District Judge, Jhansi in Misc. Case No. 51 of 1982 has preferred this first appeal from order for setting aside the said judgment and decree by which respondent no. 1 SMT. Dropti Sharma was granted probate on the basis of the will dated 18-6-1980 executed by Sri Girish Chandra Sharma.
2. Facts in brief are that respondent no. 1 filed an application under section 276 of the Indian Succession Act for the grant of a probate in respect of the estate of Sri Girish Chandra Sharma who had executed a will on 18-6-1980 at Bulandshahr in her favour. Sri Girish Chandra Sharma expired on 7-10-1988 at Jhansi. It was alleged by the respondent no. 1 that, she is the only legatee of the will. The property in respect of which brobate has been prayed for consists of a house and accounts in State Bank of India, Allahabad Bank and Central Bank. To buttress her contention that she is the only legatee a photostat copy of the will has been filed.
Sri Vikram Singh, a retired District Judge is the scribe of the will while Sri Brahma Singh, Advocate, Bulandshahr and Sri V. S. Kulshrestha who was then posted as Additional District Judge, Bulandshahr are the attesting witnesses of the will (Sri V. S. Kulshrestha was later promoted as District Judge but has since expired).
3. Earlier vide judgment and order dated 26-8-1983 a probate was granted ex-parte and consequent thereto the respondent no. 1 withdrew the amount which stood in deposit in the Allahabad Bank.
4. However, later Smt. Prigya Sharma, appellant on coming to know of the ex-parte order dated 26-8-1983 filed an application for setting aside the ex-parte order which was allowed and the case was restored to its number for disposal according to law. Appellant Smt. Prigya Devi filed necessary objections on 11-5-1984 against the application filed by respondent no. 1 (Smt. Dropti Sharma) for the grant of the probate in the latter's favour. It was alleged that Sri Girish Chandra Sharma did not execute any will on 18-6- 1980 and the photo copy filed by the respondent no. 1 in the court is fictitious only to frustrate her interest share in the property. It was also alleged that Sri Girish Chandra Sharma on the date when the will is alleged to be executed was not in a fit condition either physically or mentally and could not have as such executed a will. It was also alleged that the said will has not been properly attested. It was further alleged that Sri Girish Chandra Sharma was a permanent resident of Jhansi and there was hardly any occasion for him to go to Bulandshahr for the execution of the will. The attesting witnesses to the will are close friends of the family and respondent no. 1 and have thus become witnesses to the execution of the will being under the influence of the respondent no. 1. It was moreover alleged that at the time when her father (Sri Girish Chanda Sharma) expired, there was no talk with her mother Smt. Dropti Sharma, respondent no. 1 and her other sister Smt Urmila Tiwari in regard to the will. Further more it is alleged that the son of Smt. Urmila Tiwari filed a fictitious vakalatnama on her behalf to show that that she had no objection which resulted in the decision of the case ex-parte. However, she gave a notice for the partition of the property which remained unreplied.
Before dwelling upon the merits of the case it may be mentioned that respondent no. 1 Smt. Dropti Sharma is the wife of Sri Girish Chandra Sharma and appellant Smt. Prigya Sharma and respondent no. 2 Smt. Urmila Tiwari are the daughters of Sri Girish Chandra Sharma.
5. To buttress support to her case Vikram Singh AW 1 was produced by respondent no. 1. Vikram Singh AW 1 is the scribe of the will. He has testified that the photostat copy of that will is before him. He has deposed that the will bears the s
