The validity of a Will is determined by the testator's capacity and the absence of suspicious circumstances; the burden lies with propounders to prove legitimacy.

JUDGMENT :

Sandeep Jain, J.

1. First Appeal no. 1274 of 2023 has been filed by the Rakesh Srivastava and others under Section 299 of the Indian Succession Act, 1925 against the impugned judgment and order dated 18.10.2023 passed by the court of Additional District and Sessions Judge Court No.1 Varanasi in Probate Case No. 26 of 2007 Rakesh Srivastava and others vs.Smt.Sudha Srivastava and others, whereby application seeking probate regarding alleged Will dated 25.5.2002 executed by Parmanand Lal Srivastava(testator) has been rejected.

2. First Appeal no. 1276 of 2023 has been filed by Rakesh Srivastava and others against impugned judgment and order dated 18.10.2023 passed by the court of Additional District Judge Court no.1 Varanasi in Probate Case No. 27 of 2007 Smt. Sudha Srivastava and others vs. Krishna Kumar Srivastava and others, whereby application seeking probate regarding registered Will executed by Parmanand Lal Srivastava(testator) on 20.9.1996 has been granted.

3. Probate case No. 26 of 2007 and 27 of 2007 were heard together by the lower court and decided by the common impugned judgment and order dated 18.10.2023.

4. Since First Appeal no.1274 of 2023 and 1276 of 2023 arise from the same judgment and order as such, both the appeals were heard together and are being decided by this common judgment.

Facts of Probate Case No. 27 of 2007

5. This case was filed by the plaintiff Smt.Sudha Srivastava against the defendants Krishna Kumar Srivastava and others for seeking Probate regarding registered Will executed on 20.9.1996 by her father Parmanand Lal Srivastava(testator), who died on 22.11.2002. It was averred by the plaintiff that the testator had acquired the residential house no. B.26/116-A situated in Nawabganj, Bhelupura, Varanasi from his paternal aunt Smt. Gujarati Devi and the remaining immovable property was agricultural land acquired from the ancestors, which was in the sole name of the testator and the other properties were in joint ownership. It was further averred that the testator was having Savings bank account no.1893 in State Bank of India, Branch BHU, Varanasi which was the self acquired property of testator. It was further submitted that the testator had willingly executed his last Will in favour of the plaintiff through which half property has devolved on her. It was further averred that the testator has died on 22.11.2002 in his above residential house. It was prayed that the Probate be granted in her favour on the basis of the above registered Will executed by the testator.

6. The defendant Rakesh Srivastava opposed the Probate application on the ground that the testator had executed in his lifetime a Will on 25.5.2002 in presence of witnesses Vinod Kumar Singh and Lalji, in favour of Krishna Kumar, Awdesh Kumar, Madan Kumar, Manoj Kumar, Santosh Kumar and Rakesh Lal, in which it was made clear that after the death of testator his immovable property would devolve on Krishna Kumar and others whereas, the movable property would devolve on Sudha Srivastava and sons of Radha Srivastava. It was further averred that the testator died on 22.11.2002, as such, his Will dated 25.5.2002 has become effective, which was also the last Will of the testator, due to which the earlier Will of the testator dated 20.9.1996 has become ineffective and on the basis of the earlier Will of the testator, no probate can be granted. It was further submitted that the Probate application of Smt.Sudha Srivastava has become infructuous. It was further submitted that the Will deed dated 25.5.2002 has been executed by the testator correctly, which has been signed on each