CS(OS)/449/2011 of DEEPAK KUMAR VISHNU Vs ASHOK KUMAR BISHNU & ORS

HIGH COURT OF DELHi : NEW DELHI

Judgment reserved oo: February 24, 2011'Judgnmeint pronouncedon; March 1o, 2011

''.TEST CASE NO. 35/2003•.%Ms. Anita Bishnu...Petitioner

...PetitionerThrough:iVIr. RajshekharRao andMs. Swathi Sukumar, Advocates

versus

State-Govt. of NCT of Delhi &Others ...RespondentsThrough:Mr. A.K. Sen, Advocate forRespondentNo. 2.Mr. Rama Shanker, Advocate forRespondentNo. 5 and 6

C.S. (OS) Wo. 449/2011

Mr. Deepak Kumar Vishnu

...Plaintiff

Mr. A.K. Sen, Advocate for Plaintiff.

Through:

versus

Ashok Kumar Bishnu & ors.

& ors. ors.DefendantsThrough:Mr.RamaShanker,AdvocateforDefendantNo. 1DefendantNo. 1Mr. RajshekharRao and Ms. SwathiSukumar,AdvocatesforDefendantNo. 5.Sukumar,AdvocatesforDefendantNo. 5.

CORAM:HON'BLE MR. JUSTlCE'SUiMlLGAUR1.WhethertheReportersoflocalpapersmay be allowedto see thejudgment?2.To be referred to Reporter or not?No.3.Whetherthe judgmentshouldbereported in the Digest?TestCase Nd.-35/2003&C.S. [OS] No-. 449/2011Page 1

1.Subjectmatterofthe suit for partitioninstitutedby Plaintiff- DeepakKumar as well as the Probate case filed by Petitioner - Ms. Anita iscommon i.e. residential property No. B-249, EPDP Colony. ChitranjanPark, New Delhi (hereinafterreferredto as the 'suit property').They are thelegal heirs of late Sh. G.C. Bishnu. Plaintiff- Deepak Kumar is claimingpartition of thesuit property on the basis of natural successionwhile, asserting that he has 1/6'^ share in it, whereas Petitioner- Ms. Anita reliesupon Will of 14'^ August, 1972, vide which the suit property wasbequeathed to her and has thus sought probate on the basis of theaforesaidWill. The remainingtwo legal heirs - Ashok Kumar and Kalyani,are with Petitioner - Ms. Anita and the other two legal heirs i.e. Ms.Manisha and Ms. Sona have joined their brother Deepak Kumar to claimtheir respective shares in the suit property.

2.It is matter of record that the probate.casewas filed in this Courtand, the suit for partition was institutedin the District Courtsand wasthereafter transferred vide order of 25"" January, 2005 to this Court forcommon trial with this Test case: However, vide order of Q'" September,2005, it was made clear that the suit for partition would be the lead case.For facility" of reference, the parties to the suit proceedings are beingreferred to by their names instead of being referred to as Defendant no: orRespondentno;.

3.. Deepak Kumar in his suit for partition claims to be co-owner of thesuit property with the five defendants who are his brothers and sisters,

having 1/6"^ share each therein. It is also asserted by him that on severaloccasions he had sought partition of the suit property and when on 27'^June, 2003, he had gone to the suit property to have ja dialogue withDefendants - Ashok Kumar, Kalyani and Anita regarding partitioning of thesuit property, and scene was created there by the aforesaiddefendants.and not only there was refusal by aforesaid Defendants to the partitionofthe suit property but also false complaint was registered against theplaintiff- Deepak Kumar and hence, this suit.

4;In the'writtenstatement, the contesting Defendants,i.e., AshokKumar, Kalyani and Anita have denied the averments made in the plaintand have set up Will of 14^'' August, 1972 of their father late Sh. G.C.Bishnu and it is asserted that plaintiff-Deepak Kumar was living with thefamily during the life time of his father and was very much aware of theaforesaid Will and for this very reason, during the life time of their mother,he had not dared to seek partitionofthe suit propertyand even after manyyears of death of their mother, plaintiff-DeepakKumar has come up withthis suit for partition as counter to the petition for probate filed by Ms.Anita, defendant herein. According to these defendants, the suit propertygoes to defendant- Ms. Anita, as per the Will in question.

5.Defendants - Ms. Manisha and Ms. Sona, who are the marriedsisters of plaintiff-Deepak Kumar, in theirwrittenstatement have given 'noobjection'to the partitionof the suit property,while claiming their share init. In the replicationfiled, the averments of the plaint have been reiteratedby plaintiff-Mr. Deepak Kumar.

6.In the petition for probate, petitioner- Ms. Anita seeksletter of

TestCase No.35/2003&C.S. [OS] No. 449/2011• .Page3

administration in respect of the Will ofAugust, 1972 of their father lateSh. G;C. Bishnuwho had died on 16"" July, 1974 and has placedon recordthe copy of the Lease Deed of the suit property in favour of her father andthe particulars of his legal heirs, who are party to this petition. It is alsoasserted by Petitioner- Anita that the suit property was purchased andbuilt up from the office home loan taken by her father and after the death ofher father, the house loan was repaid from the family pension received byher mother.Thus, it is assertedthatthe suit propertyis purelyselfacquiredproperty of late Sh. G.C. Bishnu, who had after consideringthe existingfamily circumstancesmade the Will in question while he was in sounddisposingmind and'had signedthe said Will in the presenceof her motherand brother -AshokKumar. Petitioner-Anita furtherassertsthat thefactum of this Will was known to plaintiff-Deepak, who was in service butwas in no way of any help to the family. As per petitioner- Anita, she andher brother-Ashok, had dedicatedthemselvesto look after their mentallyretarded sister- Kalyani and had also looked after their ailing mother who-had died on 18*^ April; 1995, and thereafter,accordingto Petitioner Anita,her brother-Deepak used to give threats of dire consequences if the Willin question is not handed over to him or is not destroyedin his presenceand on 27"^ June, 2003, her brother-Deepakwith his son carfieto the suitproperty and had assaultedher when she had refused to hand over theWill in questionand regardingthis incident,a criminalcase was registered.Probate of the Will in question is sought in respect of the suit propertywhich is the only dwelling house of petitioner-Anita, her brother- AshokKumarand theirmentallyretardedsister-Kalyani.

-7.The resistanceto this petitionfor probate by Respondent DeepakTestCaseNo.35/2003&C.S. [OS] No. 449/2011Page4

Kumar is on the ground that the purported Will relied upon is forged andfabricatedand that the suit for partitionin respectof the suit'propertyispendingwhere Will in questionwould be an issue. Orderof 9^'^ September,2005 in Test Case No. 35 of 2003 makesit clear that the Issues framedinthe suit for partition would also cover the findings required to be returnedinthe probate petition as well.. The Issues on which the parties went to trialare a.s under:-

(i)Whetherthe Plaintiff has locus standito file the. present suit? OPD-1. present suit? OPD-1

(ii)Whether the suit is barred by law of Limitation?OPD-1OPD-1

(iii) • Whether the Will has been executed by Shri G.C.Vishnu (deceased)in favour of DefendantNo.5?OPDVishnu (deceased)in favour of DefendantNo.5?OPD

(iv)'WhetherthePlaintiff is entitledto therelief ofpartition as claimed? OPPpartition as claimed? OPP

(v)Relief.

8.The evidence led is ofi^Ms. Anita (PW-1), her brother Ashok Kumar(PW-2), Devinder Rajan (PW-3) - concerned Assistant from the CentralBoard of SecondaryEducation,Govt. of NCT of Delhi,Anil Kumar(PW-4)-UDC from the Departnient of Transport, Govt. of NCT of Delhi, N.S.Katana (PW-5)-(Head Clerkfrom Govt. of NCJ of Delhi and that of DeepakKumar (RW-1)and hersister Manisha(RW-2).^

9.Since there was common trial in the suit for partition and theprobate petition, therefore, the arguments advanced by both sides werecommon andboth these matterswere heardand are necessarily togetherTestCase NO.35/2003&C.S. [OS] No. 449/2011Page5

being disposed of together by this common order. Learned Counsel for theparties had meticulously referred to the aforesaid evidence on record andduring the course of hearing, had relied upon decisions reported in Mt.Gomtibai (/. Kanchhedilaland others, AIR (36) 1949 Privy Council 272;Krishna KumarBiria vs. RajendraSingh Lodha and Others^(2008) 4 SCC300; PargatSingh vs. Aas Kaur(died) throughherLR. Lakha Singh, 1997(3) RCR Civil 193 (P&H); Pratap Singh &Ann Vs. State, 157 (2009) DLT731; Smt. indu Baia Bose and others vs. IVIunindra Chandra Bose &Ann,AIR 1982 SC 133; VrindavanibaiSambhaji Mane vs. Ramchandra VithaiGanesiikarand others, AIR 1995 SC 2086; and H.Venkatachalaiyengarvs. B.N. Thimmajammaand others, AIR 1959 SC 443

10.The submissionsadvancedand the decisionscited have been dulyconsidered and the evidence on record has been scrutinized andthereafter,the findingsreturnedon the Issues framed are herein as under:-

11.About thirty years, after the death of Shri G.C. Bishnu, this suit forpartitionhas-beenfiled, which is said to be hopelesslybarred by time, as-DefendantsAshok Kumar, Kalyaniand Anita assertthat immediatelyafterthe death of Shri G.C. Bishnu on 16"^ July, 1974, the demand for partition-of the suit propertywas made by the Plaintiff Deepak Kumar, which wasrejected by the aforesaid three Defendants and their mother on the-strengthof the Will in. questionand on 27'" June, 2003, Plaintiff DeepakKumarwith his sons had visitedthe suit premises to take over/destroythe-Will in question but in vain and had furiously assaulted Petitioner Ms.Anita, to whom the suit property is bequeathed by the Will in question.TestCase NO.35/2003&C.S. (OS] No. 449/2011^

Whereas, according to Plaintiff- Deepak Kumar, on 27*" June, 2003, hehad visited the suit property to seek partition thereof and scene wascreated by the contesting Defendants and police complaint was lodgedagainst the Plaintiff-DeepakKumar.

12.The law of limitation governing suit for•partition of immovablepropertystandsreiteratedin NanakChandandOrs.¥s.ChanderKlsHoreand Ors,, AIR 1982 Delhi 520, in the followingwords;-"The crucial question in such cases is when right tosue accrues,there can be no right to sue until there isan accrualof the right assertedin thesuit and itsinfringement or, at least clear and unequivocal threatto infringethat right, by the defendant against whom thesuit is instituted : Mst. Bolo v. Mt. Koklen and others,.AIR 1930 PC 270 Where there are successiveinvasionsor denials of right, the right to sue under Article 120 .(Article 113) accrues when the defendant has clearlyandunequivocally threatenedto infringe therightasserted by the plaintiffin the suit. Every threat by aparty to such right, however, ineffective or innqcuous itmaybe,cannotbeconsideredtobeaclearandunequivocal threat so as to compel him to file suit.Whether particular threat gives rise to compulsorycause of action depends upon the question whether thethreat effectivelyinvades or jeopardizes the said right:IVIst Rukna Bai v. Lala Laxminarayan, (1960) 2 SCR• 253.".

13.In the instantcase, Plaintiff- DeepakKumar pleadsignoranceaboutthe Will in question,which accordingto him is forged and fabricated.The-evidence of the Plaintiff Deepak Kumar, of his seeking partition of thesuit propertyand of the contestingDefendantspostponingit on one pretextTestCaseNo.35/2003&C.S. [OS] No. 449/2011Page 7

or the.other.andof his lastly seeking it on 27^^ June, 2003 and scenebeing created andrefusal by the contesting Defendants to theproposed;partition, remains unchallenged inhiscross-examination.Therefore, it has to be taken that effective refusal of the contesting-Defendants to the assertion of the Plaintiff Deepak Kumar to seekpartition of the suit propertywas on 27*'^ June, 2003, thereby giving himcause of action to file the suit for partition,which was in fact filed on 19"'November, 2003. Since the contesting Defendants have failed to lead-cogentevidencethat there was specificdenial of the right of the PlaintiffDeepak Kumar to seek partition of the suit premises, prior to 27^'^ June,2003, therefore, they have failed to establish that the right to seek thepartition of the suit property has been lost on account of lapse of time.Resultantly,it is held that this suit for partition is not barred by time. ThisIssue is answered accordingly.

14.Validity of the Will of 14'' August, 1972 by late Shri G.C. Bishnu in-favour of Defendant/Petitioner Ms. Anita, is the crucial question,whichwould determinethe fate of these three Issues. But first, status of the suitproperty requires determination, i.e., whether if was self-acquired orancestral the to these vainqua parties proceedings.Except attempt by-Plaintiff Deepak Kumar to orally assert that loan against suit propertywas repaid from pension of the Testator or he had also contributedtowardsthe said repayment,there is no worthwhileevidenceon record toestablishthe ancestralnatureof the suit property.It is not even the case of-Plaintiff Deepak Kumarthat suit propertywas HUF property.Rather,the

evidenceled clearly proves that the suit propertywas allottedto Late ShriG.C. Bishnuand he had built it with the office home loan, which was repaid—from his pension, but PlaintiffDeepak Kumarfails to prove that he had inany way contributedtowards its repayment.Thus, it stands amply provedthat the suit propertywas the self-acquiredpropertyof the Testator- LateShri G.C. Bishnu.

15; .What is the true legal position in the matter of proof of Wills, is wellestablishedand it stands reiteratedby the Apex Court in BhaDporSioghand Ors. vs. ShamsherSingh (2009) 3 SCC 687 and the suspiciouscircumstances, which are likely to surround the execution of ahighlighted are as under:-

(i)The signatureof the testatormay be very shakyanddoubtful or not appearto behisusualsignature.anddoubtful or not appearto behisusualsignature.

(ii)The conditionof the testator'smind may be veryfeeble and debilitated at the relevant time.feeble and debilitated at the relevant time.

(Hi)The dispositionmay be unnatural, improbableorunfair in the light of relevantcircumstanceslikeexclusion of or absence of adequate provisionsfor the natural heirs withoutany reason.unfair in the light of relevantcircumstanceslikeexclusion of or absence of adequate provisionsfor the natural heirs withoutany reason.

(iv)The dispositions may not~^appearto be the resultof the testator'sfree will and mind.of the testator'sfree will and mind.(v)The propoundertakes prominent part in theexecutionof theexecutionof the

(vi)The testatorused to sign blankpapers.

(vii)The Will did notsee the lightofthe day for long.(viii)Incorrect recitals of essential. facts.18.Thecircumstancesnarrated,hereinbeforearenot(viii)Incorrect recitals of essential. facts.18.Thecircumstancesnarrated,hereinbeforearenot

TestCase No.35/2003&C.S. [OS] No. 449/2011

exhaustive.Subjecttoofferofreasonableexplanation,existencethereof must be taken Intoconsideration for the purpose of arriving at afinding as to whether the execution of the Will hadduly been proved or not.

16.Undoubtedly,it is an establishedrule of law that the propounderofthe Will has to prove,its due execution,as providedunderSection63 oftheIndian SuccessionAct, 1925. The Will of 14th August, 1972 (Ex.PW-1/2)is' witnessedby the motherof the partiesas well as by one of their brothers,i.e., Mr. Ashok Kumar, PW-2. The mother of the parties had left this worldin the year 1995 and the survivingwitnessto this Will is Mr. Ashok Kumar/(PW-2), who in his deposition has categoricallystated that the Testatorhad signed on both the pages of the Will in his presence and he and hismother had also signed the said Will and he has identifiedthe signaturesof the Testator as well as his signatures and that of his mother on the Willin question.-It has come in the evidence of this witness that the suit.propertyis self acquired-property of the Testator who was in completecontrol of his mental and physical faculties at the time of the execution ofthis Will..

17.In the cross-examinationof this witness (PW-2), vain attemptwasmade to show that since the Testatorwas sufferingfrom cancerof urinarybladder,therefore,he was not keeping good health. Simply because, restwas advised for fifteen days to the Testatorvide medical certificate(Ex.RW-1/P2), it cannot be inferred that the Testatorwas not physicallyandmentallyfit to execute the Will in question. In fact, it has come in the cross-examination of this witness that Testator used to remain mentally andphysicallyfit even at the time of undergoingthe therapy/treatment.Infact,

nothing turns on the fact thatthe Testatorwas not followingthe adviceof-the doctorbecausethe Plaintiff DeepakKumar, himselfhad admittedinhis evidencethat his father, i.e. the Testatorwas an officerand remainedaprudentman till his death. Thus, there remainsno mannerof doubtthatthe Testator had the requisite mental faculties to execute the Will inquestion. Even Manisha (RW-2), sister of the parties, who is supporting-Plaintiff Deepak Kumar has admitted in her evidencethat though herfather Shri G.C. Bishnu, i.e.. Testatorhad died of oancer, but before hisdeath, he was havinggood health.

18.During the course of hearing, attentionof this Court was drawn tothe cross-examinationof the Attesting Witness Ashok Kumar (PW-2) toshowthat his duty timingswere from 10 AM to 5PM and so, he could nothave been presentat the time ofallegedsigningof the Will (Ex.PW-1/2)asa witness at 4or 4.30 PM. To disbelievetheof this presence AttestingWnessAshok Kumar(PW-2)at4or 4.30 PM at the house,-whenthe Willin question was signed, it was required to specificallycross-examinethiswitnessas to how he was presentat 4O'clockat the house,when his duty were to 5 PM. Had there been cross-examinationof thistimings up anywitnessto thisthen this witnesscould have thrown some effect, only, lighton this aspect. Therefore,this conjecturalsubmissioncannot be accepted; on the face of it, for the reason that there is not even suggestionto thisAttestingWitness-PW-2, of his not being presentat the time of executionofthe Will, becauseof his being presenton duty.

-19.In any case, the standof the Plaintiff DeepakKumar is thatthe Willin question is forged and fabricated.To assertso, learnedcounselfor theTestCase No.35/2003&C.S. [OSJ No. 449/2011'

-Plaintiff Deepak Kumar had drawn attention of this Court to the Will of14th August, 1972 (Ex.PW-1/2)to showthat theTestatorhas not signedatthe place, where he ought to have signed. Upon perusalof the Will of 14thAugust, 1972 (Ex.PW-1/2),Ifind that thoughthere is some space betweenthe place where EXECUTANT'is typed and the place where the nameand address of the Testatoris typed, and the Testatorhas signed abovethe word 'EXECUTANTbut this by itselfwould not probabalisethe plea of-Plaintiff Deepak Kumar of the Testatorsigning the blank documentandthereafter,the Will in questionis being typed thereon,because,on the firstpage ofthe Will of 14thAugust, 1972 (Ex.PW-1/2),the Testatorhad signedon the left margin, as there was no space to sign at the bottom ofthe.first of this Will. Even if it is assumed that the Testator had onpage signedblank pages,then his signatureswould have appearedat the bottom of thefirst But it is not so. He hason the left of the first page. signed margin pageofthe Will. Therefore,on this account,the Will in questionis not rendereddoubtful.20.Since-the Will in questionbequeaths the suit propertyto Petitioner-Ms. Anita, therefore, by. any stretch of imagination, it cannot be said thatthe beneficiaryof the Will in question is the Attesting Witness - AshokKumar (PW-2). It was assertedby learned counsel for the Plaintiff -Deepak Kumar that the AttestingWitness(PW-2) was minor at the time ofexecution of the Will as he was aged 17-years then. Though, there wassome ambiguityon this aspect as this witness (PW-2) in his evidence by/way of Affidavithad given his present age as 52 years, from which it couldbe inferred that he was less than 18 years when this Will was executed butthis aspect stands clarifiedfrom the evidence of Official Witness (PW-5)

who has produced the official record (Ex.PW-5/1')running into six pages,comprisingof the applicationfor inclusion of the name in the electoralrollwith copy of the Higher SecondaryExamination Certificate and RationCard, to conclusively show that the date of birth of this Witness Mr. AshokKumar (PW-2)was 2^^ April. 1953. which cleahyprovesthat on the day ofexecutionofthe Will in question,he was more than 19 years ofage.21.Simply because,this AttestingWitness-PW2 has candidlystated inhis evidencethat the Testatorhad got the Will in question alreadytypedand he does not know from where he got typed, his depositioncannot bedisbelieved,for the reasonthat nothingworthwhilehas been broughtout inhis cross-examinationto cast any doubt about the due executionofthe Willin question. Merely because the Will in question was not registered, itsevidentiary value does not get diminished. Since this Will was executed inDelhi, therefore, it was not required under the law to get it probated andthe Plaintiff- Deepak Kumar or his sisters- Ms. Manisha and Ms. Sona.cannotplead ignoranceabout the existenceof this Will becausetheTestatorhad diligentlymade it clear in the Will itselfthat he had conveyedabout the Will to all his family members and that this was his last Will.Candidly, the,Testator had disclosed in the Will (Ex.PW-1/2)that he issufferingfrom cancer or urinary bladder and the chances of his recoveryare negligible,but. he is absolutelyof sound mind and he has bequeathedthe suit propertyvery carefullyto his daughterMs. Anita, so that there maynot be any dispute in future, because he was very much worriedabout thefuture of his daughterAnita and Kalyani,who was mentallyretarded,whilemaking Petitioner - Anita responsible for looking after his mentallyretarded and the Testator had in so daughter Kalyani expressed manyTestCase No.35/2003&C.S. [OS] No. 449/2011Page 13

words his hope that Petitioner- Anita would not disappointhis soul afterhis death.

22.Oral assertions by Plaintiff—Deepak Kumar and his sister Manisha(RW-2) of their being blissfullyunaware of the Will in question or of nonproductionof the Will in questionduring the life time of their mother, doesnot cut any ice, for the reason, it is the consistent stand of Petitioner-Anita and the AttestingWitness (PW-2) that all the family members wereaware of the Will in question,as its executionwas not kept secretand itwas disclosedto all the family members at the time of its execution.Thisstand is fortifiedfrom the contentsof the Will in questionas it is specificallyrecorded therein that the Testatorhad conveyed about this Will to all hisfamily members.

2o.The reasons to exclude his five legal heirs from succeeding'to thesuit property have been succinctlyspelt out by the Testatorin the Will in-question.The reason to exclude Plaintiff Deepak Kumar is clearlystated-in the Will in questionas the Testatorhad found Plaintiff Deepak Kumar. to be rude, disobedientand wayward and has no help to him. Since theTestator had legitimatelyexpected that his son Ashok Kumar can on hisown establishhimselfin life, therefore,he had reposed confidencein himand has made him an AttestingWitnessto this Will, as Manishadaughter'of the Testatorwas married and well settled in her life in Calcutta,so shewas excluded and the reason to exclude his anotherdaughterSona wasthat she was in GovernmentService and he was not worried about her.The subsequentevents speak themselves. It is not even the case of the-Plaintiff Deepak Kumar that his mentally retarded sister Kalyani is not-being looked after by Petitioner Anita, who had not married and isTestCaseNo.35/2003&C.S. [OS] No. 449/2011p^gg

diligently taking care of her sister Kalyani, who is not only mentallyretarded butis totally dependentupon Petitioner-Anita as well as on herbrother Ashok Kumar, who has also not marhed. The Testator in his-wisdom has reposed immense confidencein Petitioner Anita to which,she has lived upto and therefore,rightlyso, he had rightlybequeathedthesuit property to her.Thus from any angle, it cannot be said that the-of the suit the Testatorto Petitioner Anita wasbequeathing propertybyunnatural, improbable, unjust or unfair. Infact, the Testator had wiselybequeathedthe suit propertyto Petitioner- Anita.24.After analytical analysis of the entire evidence on record, I,unhesitatingly conclude that there are no suspicious circumstancessurroundingthe Will of 14th August, 1972 (Ex.PW-1/2)and so, relianceplaced upon decisions in Pargat Singh vs. Aas Kaur (died) through herL.R. Lakha Singh, 1997 (3) RCR Civil 193 (P&H); Pratap Singh &Ann Vs.State, 157 (2009) DLT 731; Smt. indu Baia Bose and others vs. l\/1unindraChandraBose &Ann, AIR 1982 SC 133; VrindavanibaiSambhajiMane vs.Ramchandra Vithal Ganeshl<ar and others, AIR 1995 SC 2086; andl-i.Venl<atachalalyengarvs. B.N. Thimmajammaand others, AIR 1959 SC443, by learned counselfor the Plaintiff- Deepak Kumar is of no avail. Inthe light of the evidenceon record, it is held that the Will of 14th August,-1972 (Ex.PW-1/2)had been validlyexecutedin favourof Petitioner Anita,who is entitled to letter of administrationin respect of the Will of 14thAugust, 1972 (Ex.PW-1/2). Consequentially,it is held that Plaintiff -Deepak Kumar loosesthe locus and is not entitledto the reliefof partition,as claimed by him;Findings on Issues (i) &(iv) are returned against-Plaintiff Deepak Kumar and the suit being C.S. (OS) No. 449/2011 isii.t .1..mill _ I .1. ..I......TestCaseNo.35/2003&C.S. (OS] No. 449/2011 —'^

accordinglydismissed,whereas tlie petition for probate being Test Case1^0.35/2003is allowed.TllesettireeIssuesare answeredaccordingly.

•25.Consequentupon the findings returned as aforesaid, the suit forpartitionis dismissedand the petitionfor grant of probateis allowedwhileleavingthe partiesto beartheirown costs.26.This suit and the petitionare accordinglydisposedof.--Synlii liauir, J.March 18, 2011pkb/rs

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