JUDGMENT :

1. By way of this first appeal under section 96 of the Code of Civil Procedure, 1908 (“CPC” for short) along with provisions of Indian Succession Act, 1925 (‘the Act, 1925” for short) deceased – appellant Harishchandra Pednakar questions legality and proprietary of judgment drawn by learned Judge, City Civil Court, Ahmedabad dated 16.03.1995 in Civil Suit No.1601 of 1986 (Probate Application No.558 of 1982), whereby, learned Judge granted probate of property mentioned in Will in favour of deceased – Bhaskar Pednekar respondent herein (expired during pendency of this appeal).

2. Mr. Bhaskar Pednakar was plaintiff and Mr.Harishchandra Pednakar was defendant before the learned Trial Court.

3. For sake of convenience, parties are referred to their original status before the learned Trial Court.

4. Facts of the case are as under :-

4.1. The Plaintiff and the defendant are real brothers, being sons of the late Shri Ramchandra, who expired on 26.07.1981. At the time of his demise, the deceased was residing with the Plaintiff. It is the Plaintiff’s case that the deceased, while in a sound and disposing state of mind, executed his Will dated 18.07.1981. Under the said Will, the Plaintiff was appointed as the sole executor, and the immovable property being Tenement No. 34, New Arvindnagar Cooperative Housing Society, Vibhag–2, Nikol Road, Bapunagar, Ahmedabad (hereinafter referred to as the “disputed Property”) was bequeathed to him.

4.2. The Plaintiff contended that the Will was drafted and typed by Advocate Mr. Joshi and duly executed in presence of two witnessess. Subsequent to the death of deceased, the Plaintiff approached the concerned Co-operative Society on the strength of the Will for the mutation of his name in his favour. However, the Society insisted for production of a Probate from a competent court. Consequently, the Plaintiff instituted Probate Application No. 558 of 1982 before the Learned City Civil Court, Ahmedabad, under the provisions of the Act, 1925.

4.3. Summons was issued as per Rules and pursuant to which defendant appeared and contested probate application. As the matter became contentious, the proceedings were converted into a Civil Suit. To be noted that conversion of probate application into suit proceedings is in ignorance of section 295 of the Act, 1925. As per section 295 of the Act, 1925, in contentious probate proceedings has to be conducted in the form of regular civil suit applying provisions of CPC and not as civil suit.

4..4. Besides, plaintiff and defendant, deceased Ramchandra had no class I heir.

5. In light of the aforementioned facts, the Plaintiff prayed for the grant of Probate in respect of the Will dated 18.07.1981 executed by the late Shri Ramchandra.

6. The defendant initially resisted the application and subsequently filed his Written Statement at Exh. 23. After denying the averments made in the Probate Application, the defendant contended that the deceased Shri Ramchandra never executed any Will during his lifetime. The defendant contended that the purported Will propounded by the plaintiff is fraud and fabricated document, and only executed with intention to grab disputed Property.

6.1. It is further contended that at the time of execution of Will, the deceased was suffering from cancer of the jaw and tongue. The defendant submits that medical condition of deceased creates serious doubt about sound and disposing state of mind.

6.2. Furthermore, the defendant contended that he was nominee in the records of the Co-operative Society and after demise of Shri Ramchandra, the Suit Property was transferred in name of defendant and as such he is owner of disputed property. In support of his possession, the Defendant contended that deceased used to collect rent from tenant; however, upon the tenant vacating the premises, vacant possession was handed over directly to the Defendant. Therefore, the Plaintiff has no right over the property, and this litigation is an attempt to grab the property unde