IMPORTANT POINT
Merely because one legal heir excluded from inheritance, by itself would not sufficient to discredit Will.

A.K.Pathak, J.—Respondent No. 1(i) and (ii) are sons of deceased respondent No. 1 and Late Shri J.L. Kaura (testator); whereas appellant is daughter of Late Shri J.L. Kaura from his first marriage. Respondent No. 1 Smt. Krishna Kaura propounded a Will dated 13th December, 1994 (Ex. PW2/1) of Late Shri J.L. Kaura before the trial court and prayed for grant of probate of the said Will. Appellant challenged the Will by filing objections and opposed the grant of probate. During the pendency of probate petition, Smt. Krishna Kaura died and respondent Nos. 1(i) and (ii) were impleaded as her legal heirs and continued to prosecute the petition. After trial, trial court has granted probate in favour of respondent Nos. 1(i) and (ii) in respect of the estate of testator, in the manner as detailed in the Will dated 13th December, 1994.

2. Aggrieved by the grant of probate to respondents, appellant has preferred this appeal.

3. One of the attesting witnesses to the Will, namely, Shri C.D. Khurana was examined by the respondents as PW2. He deposed that testator was his friend. Another witness to the Will Colonel C. Anand was also their friend as all of them had worked together in the Indian Army, inasmuch as, had settled in Defence Colony after their respective retirements. Testator requested him and Colonel C. Anand to accompany him to the office of Sub-Registrar in connection with execution, attesting and registration of his Will. On 13th December, 1994, all of them went to the office of Sub-Registrar at Vikas Sadan, New Delhi, where testator read out the contents of the Will and signed the same at points ‘A’ to ‘A1’ at page 1, at point ‘A2’ at page 2, at point ‘A3’ at page 3 and at point ‘A4’ at page 4 in their presence and within their sight. Thereafter, he and Colonel C. Anand signed the Will as attesting witnesses at points ‘B’ and ‘C’. They signed the Will in presence of each other. Testator was hale and hearty, physically fit and in sound disposing mind when he executed the Will. Immediately after execution of the Will, same was submitted to the Sub-Registrar for registration. In his brief cross-examination, PW2 denied that testator was not mentally fit and was suffering from Alzheimer and other ailments since 1990 till he died. He also denied a suggestion that Will was not executed by the testator. He also denied that Will was forged and fabricated document. He denied that Will was not executed in his presence. He denied that testator did not sign the Will in his presence. No other question was put to this witness.

4. Trial Court has found the testimony of PW2 trustworthy and reliable. By placing reliance on Section 68 of the Indian Evidence Act, 1872 read with Section 63 of the Indian Succession Act, 1925 trial court has held that respondents had succeeded in proving the Will. They had succeeded in proving that testator had executed his last Will dated 13th December, 1994 (Ex. PW2/1) in his full senses and sound disposing mind in presence of two attesting witnesses, namely, Shri C.D. Khurana and Colonel C. Anand. It has been further held that Will was not surrounded by suspicious circumstances.

5. Appellant had taken a plea that testator was suffering from Alzheimer right from 1990 onwards till he died in the year 1999, thus, Will was not executed by him in sound disposing mind. It was alleged that testator was not capable of understanding what he was doing or executing. Trial court has held that appellant had failed to prove this fact by leading any cogent evidence, more particularly, documentary evidence. Trial court has further noted that appellant had admitted the existence and validity of Will in her letter dated 10th September, 2000 (Ex. PW4/1) written to American Express (India) Ltd. as well as in her affidavit dated 6th October, 1999 (Ex. PW3/2), thus, her above plea was not acceptable. During her cross-examination, appellant had admitted her signatures on Ex. PW3/2 but stated that she had signed the papers