JUDGMENT
Anil Dev Singh, J.
(1) This is an application under Section 276 of the Indian Succession Act, 1925, for grant of probate in respect of Will dated 15/12/1971executed by Mahant Manohar Dass. The facts giving rise to the application are asunder.
(2) Mahant Manohar Dass died at Delhi, on 14/01/1978. During the lifetime of Mahant Manohar Dass the petitioner was taken as a Chela by him. By means of a Will dated 15/12/1971, he appointed the petitioner who has filed the instant application as an executor of the Will. To the instant application the objections were filed by Ram Nath Dass who also claims to be the Chela of Mahant Manohar Dass, and also by Amar Singh, Karan Singh, 0m Prakash, Narender and Param Singh. The application is being contested by Ram Nath Dass. In the objections of Ram Nath Dass dated 7/08/1978 it is stated that Mahant Manohar Dass had executed a Will in favour of the objector on 29/05/1945 and thereafter no other Will had been executed by him in favour of any person. It is claimed that he is the only person who is entitled to the estate of Mahant Manohar Dass. By order dated 1/01/1979 the following issues were framed :
1. Whether the Will dated 15/12/1971, is the last and valid Will of late Shri Manohar Dass?
2.Relief.
(3) Subsequently, on Septembers, 1980, an additional issue was framed having regards to the objections filed by 0m Prakash and Narender. The additional issue which was raised is as follows : “WHETHERSh. Manohar Dass made the Will dated 19/06/1977 and is it inaccordance with law? (Onus of proof on the objectors)”.
(4) The petitioner, to prove the Will dated 15/12/1971, produced 0mPrakash Gupta and Mahant Girija Nandan Goswami, both of whom were the attesting witnesses to the Will, and Subedar Singh and Bhagwan Dass, Clerk of the office of the Sub-Registrar, New Delhi. The petitioner also appeared as his ownwitness.
(5) The objectors Amar Singh and Karan Singh appeared as their own witnesses.Ram Nath Dass, objector, also appeared as OW-3. Shri I.C. Tyagi, OW-4, was also produced by Ram Nath Dass in support of his objections.
(6) At the outset it may be stated that 0m Prakash, Narender and Param Singh did not produce any evidence in support of their objections. In the objections, the above said objectors had set up a Will dated 19/06/1977. This Will was an unregistered one and was not proved by them. As such the additional issue framed on 3/09/1980, regarding the alleged Will dated 19/06/1977 is decided against the said objectors.
(7) For the determination of Issue No. 1 reference needs to be made to the statements of Om Prakash Gupta and Mahant Girija Nandan Goswami, 0mPrakash Gupta, Public Witness PW-1, deposed that he knew Mahant Manohar Dass, that he executed the Will Ext. P-l dated 15/12/1971; that the Mahant put his signatures as well as thumb impressions at points ‘A’ and ‘A-l on all the pages of the Will in his presence (0m Prakash Gupta) as also in the presence of Deva Dass,Girija Nand and Prem Dass; that Deva Dass, Giraja Nand and Prem Dass also put their signatures on the Will as attesting witnesses in the presence of the deceased testator at points’ C”, ‘D’ and ‘E’; that at the time of execution of the Will the testator was possessed of sound disposing mind and he knew what he was doing; that the Will was typed at the instance of and according to the directions of the deceased at his own house; that after the Will was typed its contents were read out by the deed writer to the deceased and thereafter the deceased himself read the same and then put his signatures and thumb impression on the Will. The objectors cross-examined the witness mainly on the question as to the right of the testator to execute the Will in respect of the properties mentioned in the Will. The cross-examination was not directed towards the authenticity of the Will or the question as to whether the deceased Mahant Manohar Dass had actually signed the Will or not. The witness signedthewas also not cross-examined in regard to the question whether or not he had signed the Will in the presence of the deceased. The other attesting witness to the Will,namely, Mahant Girija Nandan Goswami stated in his examination-in-chief thatExt. P-l was the Will executed by Mahant Manohar Dass on 15/12/1971; that at the time of execution of the Will the testator was in sound state of mind, that Mahant Manohar Dass had read the Will and after the Will was signed by the testator he and 0m Prakash had signed the Will as witnesses. The cross-examination by the objectors did not succeed in bringing out some .”act which could have cast doubt with regard to the execution of the Will by the testator. Subedar Singh, Public Witness PW3, deposed to the fact that he had accompanied Mahant Manohar Dass to the office of the Sub-Registrar, New Delhi, and before the Sub-Registrar he (Subedar Singh)had signed the Will at the place marked A2. Insofar as the cross-examination of this witness is concerned, I find that it has no relevance to the question of authenticity of the Will. Bhagwan Dass, Public Witness PW-4, a clerk in the office of the Sub-Registrar was also examined and he testified to the fact that the original Will Ext. P-l contained the stamp of the office of the Sub-Registrar. New Delhi, that the Will was registered on 18/12/1971 at Serial No. 737, Additional Volume No. 3 Bahi Khand No. 38at pages 70 to 72 and that copy of the Will on record was the exact copy of the originalWill.
(8) The petitioner who appeared as his own witness proved the factum of death of Mahant Manohar Dass and the execution of the Will in his favour.
(9) Insofar as Amar Singh (OW-1) is concerned, he deposed to the fact that he knew Mahant Manohar Dass, that property adjoining the Math had been given to the deceased by the villagers, who were the owners of the same and that Mahant Manohar Dass was only managing the said property. It would be worthwhile to mention that the objector did not depose anything with regard to the execution of the Will dated 15/12/1971.
(10) OW-3 Ram Nath Dass proved Ext. RW1/l, an earlier Will dated 23/12/1944. He further stated that he (Ram Nath Dass) was inducted as disciple of Mahant Manohar Dass in the year 1944. The objector also claimed that Mahant Manohar Dass had no right to make the Will as the property devolves upon thedisciple and in case of there being no disciple it devolves upon the Acharya Gaddi Bidhupur in Muzaffarnagar. He also stated that Mahant Manohar Dass was not having good health in December, 1971. As would be seen, except referring to the fact that Mahant Manohar Dass had no right to make the Will, this witness has notattacked the Will dated 15/12/1971. He has not even stated that the Will was a forged one or it had not been executed by Mahant Manohar Dass.
(11) Statement of OW-1 Shri I.C. Tyagi also does not throw any worth while challenge to the Will dated 15/12/1971. The only relevant thing which this witness stated was that Mahant Manohar Dass was ailing in December, 1971.However, this does not mean that Mahant Manohar Dass to have sound disposing mind when the Will was executed. The objectors have not produced any medical evidence to show that the mental faculties of Manohar Dass had been affected at the time of executing the Will and he could not understand the implications of hisaction.
(12) Learned Counsel appearing for objector No. 3 stated that Mahant ManoharDass had executed a Will Ext. RW1 /1 dated 23/12/1944 in favour of his client and that Will was the only Will which can be relied upon. For this submission he pointed out that in the Will dated 23/12/1944 the testator had taken care to mention that in the event of the death of the legatees namely Harbans Dass and RamNath Dass, the property will go to Mahant Bidhupur of who shall be the owner of the properties of Delhi Gaddi have considered the submission of the learned Counsel but regret my inability to agree to the same. The mere fact that this particular provision was not made in the Will dated 15/12/1971 cannot cast any doubt on the authenticity of the Will dated 15/12/1971. The Will dated 23/12/1944, being the earlier Will would cease to be operative. The only Will which is operative and which has been proved on record is the Will dated 15/12/1971. Accordingly, the issue No. 1 is decided in favour of the petitioner and it is held that the Will dated 15/12/1971 is the last and valid Will of the deceased Manohar Das. This being the position I do not see any impediment in the grant of probate to the Will dated 15/12/1971 Ext. P-l.Relief
(13) In the circumstances, the application succeeds and the probate of the Will dated 15/12/1971 (Ext. P-l) is granted in favour of the petitioner subject to the petitioner filing the Court fee according to the valuation determined by the Chief Revenue Controlling Authority and the bond as prescribed by law. The petitioner will also render to this Court a true account of the properties and the credits within one year from the date of the issue of the probate. Probate of the Will hereby granted will have effect over the properties which are subject-matter of the Will.
(14) Learned Counsel for the petitioner states that the client will, in accordance with the wishes of the testator, abide by the terms of the Will dated 15/12/1971 meaning thereby that the properties covered by the Will not be sold or mortgaged by the petitioner. The undertaking is hereby recorded. The objections filed by the objectors are hereby dismissed.