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1. Mrs. Edna Diamond Peters the deceased served as a teacher in St. Mary's Training College, at Allahabad. She died on 5.1.1998 at Allahabad at the age of 78 years. In Testamentary Suit No. 13 of 1998, Mr. Arnold Sunil Kumar Sircar (A.S.K. Sircar), her sister's younger son has applied for grant of 'probate' of her will dated 5.9.1994 by which she made the bequest for benefit of Mrs. Asha Sircar; Mr. Pankaj Sircar wife and son of Mr. A.S.K. Sircar of all her estate, certain sums of money to Missionaries of Charity; Sitaram; Shakuntala; Kamla and Ram Autar (servants) and 20% of the residual amount each to Mr. Rajiv Sircar; Mrs. Anita Simon; Mrs. Lalitha Francis; Mrs. Joyce Prabhaker and All Saints Cathedral. The suit is contested by Mrs. Joyce Cynthia Prabhakar the step sister and Mrs. Anita Simon, the niece of the deceased. The caveator-defendants have denied the execution of the will by the deceased. In paragraph Nos. 4, and thereafter 5, ( c), (d), (f), (k) of their objections, the defendants have pleaded that on 5.9.1994 the deceased was not in a sound physical condition or in sound state of mind nor duly executed the will. The death of her son Ernest, her only child, totally shattered her mental and corporeal faculties, which were already impaired considerably due to her old age and ill health. She was suffering from diabetes, angina and blood pressure for decades and was operated to remove cataract from both her eyes. She was not in a sound and disposing state of mind. Mr. A.S.K. Sircar, the plaintiff- propounder was serving in the Bank. His wife Mrs. Asha Sircar was teaching in Boys High School and their two children Pankaj studying in Christian Medical College in Ludhiana, Punjab, and Ritesh, a student of B. Com were too young to receive her affection and love and to exclude all other relatives. In sub para (f) of para-5, the will is alleged to be forged.

2. In Testamentary Suit No. 5 of 1998 Mrs. Joyce Cynthia Prabhakar and Mrs. Anita Simon have prayed for 'Letters of Administration' of the estate of Mrs. Edna Diamond Peters (the deceased) alleging that she died intestate. The papers purporting to be the will of the deceased sent by Mr. A.S.K. Sircar by registered post to Mrs. Lalitha Francis, the daughter of the Mrs. Joyce Cynthia Prabhakar at Bangalore alleged to be executed by the deceased on 5.9.1994 and registered at the office of Sub Registrar, Chail at Allahabad, appears to be a fishy document/shrouded in circumstances which are suspicious in the extreme besides being an unnatural will excluding all other heirs of the deceased. The signatures purporting to be of that of the deceased do not appear to be genuine and that for two months the alleged executor did not file the petition for probate. It is stated in para 4 of the plaint that apart from the plaintiff, the law applicable to Indian Christians namely Indian Succession Act No. 39 of 1925, the deceased had left behind Mrs. Aruna Seetal; Shunil Sircar (A.S.K. Sircar); Mr. Anita Simon and Ronald Sircar. The petition is contested by Shri A.S.K. Sircar, who has filed objections/counter affidavit stating that the deceased was in a sound and disposing state of mind, and had executed the will dated 5.9.1994, before the her death. The Sub Registrar registered it on the same date. He is the executor named in the will and has filed testamentary case for grant of probate.

8. Mr. A. S. K. Sircar, the plaintiff (executor of the will) in Testamentary Suit No. 13 of 1998 examined himself as PW-1; P.K. Mehrotra , the attesting witnesses of the will as PW-2; and Dr. R.K. Agarwal, a physician as PW-3. Mrs. Joyce Cynthia Prabhakar examined herself as D2-1; Mr. Desmond Simon, husband of Smt. Anita Simon as DW-2 and Mr. Ronal Rajkumar Sircar as DW-3.

9. The will dated 5.9.1994 was executed by the deceased in presence of the Sub Registrar, First Allahabad, on the same day, and was witnesses by Pt. Kashi Nath, an Advocate and Sri P.K. Mehrotra P.W. 2 who was examined as the attesting witness. Sri A.S.K. Sircar the plaintiff, the executor of the will in Testamentary Suit No. 13 of 1998 prayed for grant of probate. The defendants Mrs. Joyce Cynthia Prabhakar and Mrs. Anita Simon, the defendants, who has filed caveat/objections to the grant of probate have challenged the execution of the will. In the objections filed in Testamentary Suit No. 13 of 1998 they have stated in paragraph 4 that the deceased never executed the will dated 5.9.1994. In the same paragraph it is stated that the deceased was not in a sound physical condition or in a sound state of mind on 5.9.1994. In para 5 (a) signatures of the deceased are alleged to be forged. In sub para (b) of para 5 the attestation is alleged to be fictitious and procured. In sub para ( c) and (d) the physical and mental state of the deceased has been stated to be such that she was suffering from diabetes, angina and blood pressure and was operated on both her eyes. It is alleged that she had week vision and asked her nephew and grand nephew for reading and writing. She was extremely weak in her legs which made it impossible for her to support her body and she used a walker for almost 7-8 years prior to her death, and that after the accident of her son, who went in coma, and was admitted in medical college for three months and died in October 1993. She was totally shattered with her mental and corporeal faculties already considerably impaired due to age and ill health.

26. Shri Navin Sinha, learned Senior Advocate appearing for A.S.K. Sircar the plaintiff in Testamentary Suit No. 13 of 1998 and defendant in Testamentary Suit No. 5 of 1998 assisted by Shri P.K. Ganguli, Advocate submits that the execution of the will has been proved in accordance with the law. The propounder and the attesting witness have proved by the documentary and oral evidence that the will was prepared on the instructions of the deceased. The recital in the will go to show that the deceased was in full control of her capacities to execute the will. She has not forgotten her relatives and made provisions for them as well as also for servants by name and 'Sisters of Charity'. The physical and mental capacity of the testatrix was proved by Dr. R.K. Agarwal, the family physician who used to attend the deceased. The will was executed before the Sub Registrar who had read out the will to the deceased and that she understood the contents thereof and had signed on the will. Her thumb impressions were also put on the will, and thereafter the attesting witnesses had signed the will. Shri Sinha submits that though the propounder has not taken any active part in execution of the will, all circumstances, which have been alleged to be suspicious circumstances by the defendants have been removed by cogent and reliable evidence. The deceased lived an active life till her death. She used to compose poems, writes books and write her accounts with precision. The will was executed almost one year after the death of her son and that she died after about three years of the execution of the will during which period if there was any doubt in her mind, she could very well have cancelled the will. The other relatives were very well placed in life and specially Mrs. Joyce Cynthia Prabhakar who is the richest amongst the family members. In any case she had remembered her relatives and had made provisions for them in her will.