Smt. Radhika Devi & Anr Vs Ajay Kumar Sharma & Ors

Patna High Court

Author: Mungeshwar Sahoo

FIRST APPEAL No.275 of 2005

Against the Judgment and Order dated 29.06.2005

passed by Sri Prakash Chandra Gupta, 7th Addl.

District Judge, Gaya in Title Suit No.18 of 1999 / 2 of 1994.

SMT.RADHIKA DEVI & ANR

Defendants-Appellants

Versus

AJAY KUMAR SHARMA & ORS.

Plaintiff-Respondents

For the Appellant - Mr. Sheonandan Roy, Sr. Advocate & Mr. Shashibhushan Prasad Sinha, Advocate

For the Respondent No.1 - Mr. Binod Kumar Singh, Advocate

For the Respondent No.2. - Mr. Dronacharya, Advocate

For the Respondent No.4, 5 and 6. - Mr. Mritunjay Kumar, Advocate.

Dated : 26th day of November, 2010

PRESENT

HON'BLE MR. JUSTICE MUNGESHWAR SAHOO

JUDGMENT

Mungeshwar The defendant No.1 and 2 have filed this First Appeal against the Sahoo, J.

Judgment and Order dated 29.06.2005 passed by Sri Prakash Chandra Gupta, 7th Addl. District Judge, Gaya in Title Suit No.18 of 1999 / 2 of 1994 allowing the application for probate and letters of administration filed by respondent No.1.

(2) The respondent No.1, Ajay Kumar Sharma field the aforesaid title suit under Section 278 of the Indian Succession Act alleging that late Fateh Bahadur Singh, the father of the plaintiff died on 14.05.1991 at Gaya leaving a register will in favour of the plaintiff dated 13.05.1981 duly executed and attested. The plaintiff also averred that the value of the property which may come to him is Rs.2,32,758/-. Most of the property are within the jurisdiction of Gaya Court. Both the attesting witnesses are dead but the scribe Chandrika Prasad is still alive. The will was annexed with the application. 

(3) The appellants filed separate objection to the said application. The brother of Ajay Kumar Sharma, namely, Bishnu Kumar Sharma and wife namely, Lalima Devi filed another objection. The other brother, Dr. Virendra Kumar Sharma who is appellant No.2 as stated above filed separate objection. The main objection is that the will in question is not genuine and was never executed by Fateh Bahadur Singh. He never intended to execute any will nor there was any occasion or reason to execute the same. He never instructed any scribe for drafting a will. The alleged will was never read over and explained to Fateh Bahadur Singh nor he ever asked anyone to attest the will and the attesting witnesses were never known to him. Thus the will in question is a forged and fabricated document. The brothers, i.e., Virendra Kumar Sharma and Bishnu Kumar Sharma never separated from their father rather they were living with their father, Fateh Bahadur Singh. Virendra Kumar Sharma became a medical graduate by dint of his merit as a result of which his father, Fateh Bahadur Singh, has high degree of love and affection for him and he had no grievance against him. Ajay Kumar Sharma, the third son was very mischievous from very beginning and the second son, Bishnu Kumar Sharma could not read beyond BSc. The defendant No.2, Dr. Virendra Kumar Sharma, had given Mukhagni and perform Shradh of his father at Gaya as he was posted at Patna at the time of his father's death. In the objection of defendant No.2, the history of ancestor of the family has been described which are not very much relevant for the purpose of this probate case.

(4) The further objection is that the property at Gaya is joint family property which was ancestral property inherited by Fateh Bahadur Singh. It was stated that Gulab Kuer executed a deed of gift in the name of Fateh Bahadur Singh but in fact it was in lieu of service rendered by Dudheshwar Nath Singh who was father of Fateh Bahadur Singh. To grab the property situated at Gaya the plaintiff fabricated the alleged will. None of the next doors neighbours were made attesting witnesses to the will which shows that the will is forged and manufactured. At the time of execution of the will, the youngest daughter, Meera Singh was unmarried and no provision was made for appellant No.1, Smt. Radhika Devi, the wife of Fateh Bahdur Singh. The mother, namely, Smt. Radhika Devi is residing with defendant No.2, Dr. Virendra Prasad Sharma. The family still constitute joint Hindu family governed by Mithakhar School of Hindu Law. In the year 1981, when the will was executed, Fateh Bahadur Singh had no definite share and, therefore, no details of property has been mentioned in the will which shows that the will is forged. Partition Suit No.123 of 1993 is pending in the Court of Sub Judge, Jehanabad where the title and share of the parties is to be decided regarding the property which are still joint. Since the alleged will does not disclose the list of the property, no letters of administration can be granted with respect to the property which is given by the plaintiff in his application in the schedule.

(5) It may be mentioned here that Ajay Kumar Sharma, the plaintiff-respondent No.1 is the third son of Fateh Bahadur Singh, the executor of the will, Ext.1. The appellant, Smt. Radhika Devi is the widow of late Fateh Bahadur Singh, appellant, Dr. Virendra Prasad Sharma is the first son of Fatheh Bahadur Singh. The defendant No.3, respondent No.2, Bishnu Kumar Sharma is second son of late Fateh Bahdur Singh. The respondent No.3 is minor son of Bishnu Kumar Sharma who filed objection through her mother and guardian, Lalima Devi. The respondent No.4 to 6 are the daughters of Fateh Bahadur Singh. Ext.1 is in favour of plaintiff, Ajay Kumar Sharma, the third son of Fathen Bahadur Singh. 

(6) On the basis of the above pleadings of the parties, the learned Court below framed the following issues :

I. Is the Will valid?

II. Is the Will genuine?

III. Is there any unexplained suspicious circumstance? IV. Is the plaintiff entitled to the Letter of Administration with the Will annexed?

(7) After trial, the learned Court below came to the finding that Fateh Bahadur Singh was physically and mentally fit and healthy doing all his works sincerely and efficiently as a prudent person and the will Ext.1 is registered document, therefore, its genuineness is attached to it because there is no other documentary evidence available on record to impeach its credibility. The learned Court below also found that Radhika Devi, the appellant No.1, widow of Faten Bahadur Sisngh, has sufficient property in her possession about 18 bigghas of land.

(8) The learned senior counsel, Mr. Sheonandan Roy, appearing on behalf of the appellant submitted that the learned Court below has not appreciated the case and allowed the application and granted letters of administration with regard to the property mentioned in the application although details of those properties are not mentioned in the will. The plaintiff has given the details of those properties in the application which are not the exclusive property of Fateh Bahadur Singh rather it is joint family property. The testator Fatheh Bahdur Singh executed the will with regard to his movable and immovable properties but details of the property has not been described. Therefore, letters of administration could not have been granted with regard to total joint property unless it is found that Fateh Bahadur Singh had such and such movable and immovable property exclusively belonged to him. So far this question is concerned, the learned Court below exercising jurisdiction under Section 278 of the Indian Succession Act had no jurisdiction to decide title of the party and, therefore, he could not have granted letters of administration. So far title or share of parties are concerned, it is sub-judiced in partition Suit No.123 of 1993 pending in the Court of Sub Judge, Jehanabad.

(9) Mr. Sheonandan Roy, the learned senior counsel next submitted that the will in question was not proved according to law because the signature of the testator late Fateh Bahadur Singh was not identified by any of the witnesses examined on behalf of the plaintiff and, therefore, it was not brought on record according to law. The learned counsel further submitted that the plaintiff-respondent, i.e., propounder of the will failed to explain the suspicious circumstances that no provision was made for the widow and the unmarried daughter in the will which clearly indicates that the will is forged and the plaintiff mentioned all the valuable properties of Gaya including the houses in the list of property in Schedule of the application with a view to grab the properties.

(10) On the other hand, the learned counsel appearing on behalf of the respondent submitted that there is no illegality in the impugned Judgment and Order and the learned Court below has rightly allowed the application for probate and letters of administration. The learned counsel further  submitted that the witnesses have admitted that the widow, i.e., appellant No.1 was in possession of 18 bigghas of land and, therefore, there was no question of making any provision for her maintenance because the deceased had given the property to her. The learned counsel further submitted that in this case two attesting witnesses have died and, therefore, under Section 69 of the Evidence Act, the will has been proved by the scribe P.W.1. The learned counsel further submitted that there is no suspicious circumstances regarding the execution of the will by late Fateh Bahadur Singh. The witnesses have admitted that there was strange relationship between Fateh Bahadur Singh and the appellant and there is evidence to the effect that they were living separately since long and were not even in talking relationship. Considering all these aspects of the matter, the learned Court below has found that the will is genuine one. So far title of late Fateh Bahadur Singh to the property is concerned, the appellant cannot dispute the title and the probate Court cannot decide the title of the testator with regard to property.

(11) It may be mentioned here that both the parties have filed respective written arguments elaborating their submissions in detail.

(12) In view of the above rival contentions of the parties, the points arises for consideration in this Appeal are as follows :

(i) Whether the will in question, i.e., Ext.1 has been proved and brought on record according to law and whether it is genuine?

(ii) Whether the letters of administration could have been granted with respect to the property mentioned in detail in the schedule of the application and whether the impugned Judgment and Order is sustainable in the eye of law?

(13) In this case, the plaintiff-respondent No.1 has filed Ext.19 series to prove the fact that both the attesting witnesses, namely, Mahesh Prasad and Krishna Prasad Sinha have died. Ext.19/A is the death Certificate of attesting witness, Mahesh Prasad who died on 24.08.1992. Likewise, Ext.19/B shows hat the other attesting witness, Krishna Prasad Sinha died on 16.01.1992. Ext.1 is the registered will dated 13.05.1981. The said will has been proved by P.W.1, the scribe. P.W.3 has identified the signature of his father which has been marked as Ext.5. From perusal of the cross-examination of this P.W.3, it appears that the suggestion has been given to this witness to the effect that his father has signed on the will at the instance of Ajay Kumar Sharma. Now, therefore, the genuineness of signature of one of the attesting witness stands admitted by the appellants. P.W.1, Chandrika Prasad has stated that he scribed the will on the instruction of the testator whereby he bequeathed his entire properties to his youngest son, Ajay Kumar Sharma. He has further stated that he read over the contents of the will and the testator himself read the contents of the will and then he executed the will in presence of the witnesses by putting his signature on the will. The attesting witnesses then signed on the will in presence of testator. The testator admitted the will before the Registering Officer. It appears that suggestion has been given this witness that allthe witnesses in the will were men of Ajay Kumar Sharma. Peculiarly enough, D.W.1, R adhika Devi in her cross- examination at paragraph 10, D.W.2, Meera Singh in her cross- examination at paragraph 7 have stated that they have not even seen the registered will. Further Radhika Devi has stated that she does not know the witnesses and the identifier. In such circumstances, the suggestion given by the appellants that the witnesses are men of Ajay Kumar Sharma is neither her nor there.

(14) Section 69 of the Indian Evidence Act reads as follows:

"If no such attesting witness can be found or if the document purports to have been executed in the United Kingdom, it must be proved that the attestation of one attesting witness at least is in his hand writing and that the signature of the person executing the document is in the hand writing of that person."

(15) In view of the above provision, it must be proved that the attestation of one attesting witness is in his hand writing and that the signature of the person executing the document is in the hand writing of that person. As stated above, P.W.1 and P.W.3 have deposed according to this provision, therefore, the will has been marked as Ext.1 in this case.

(16) The learned counsel for the appellant submitted that the witnesses have not identified the signature of late Fateh Bahadur Singh on the will. So far this objection is concerned, it may be mentioned here that P.W.1 has identified this will and as stated that he scribed this will and Fateh Bahadur Singh has signed on the said will after reading and in presence of the witnesses and the witnesses have also signed in his presence. In such circumstances only because in so many specific words he has not stated that this is the signature of Fateh Banadur Singh, no doubt, is created and it cannot be said that his evidence is not according to Section 69 of the Evidence Act. Moreover, P.W.3 according to Section 69 has identified the signature of his father which has been marked Ext.5. As stated above his father is one of the attesting witnesses.

(17) So far the suspicious circumstances are concerned, according to the learned counsel: (i) No provision has been made for the widow and the unmarried daughters.

(ii) The testator died 10 years after the execution of alleged will and

(iii) The neighbours were not made witnesses to the will.

(18) So far these objections are concerned, Smt. Radhika Devi as D.W.1 in paragraph 11 has admitted that she possessed of 18 bigghas of land. D.W.2, Meera Singh also admits in her evidence at paragraph 8 that her mother has separate land. Therefore, from this evidence, it appears that Smt. Radhika Devi has sufficient means for her maintenance. It further appears from the evidence of D.W.2 that she lives with defendant No.2, i.e., Dr. Virendra Prasad Sharma who is her eldest brother who is a doctor employee. In such circumstances, it is clear that the widow of late Radhika Devi has got sufficient property in her possession and the defendant No.2, i.e., appellant No.2, Dr. Virendra Prasad Sharma is well placed and Smt. Meera Devi lives with them. In such circumstances, I find no force in the objection and these facts create no suspicious circumstances. 

(19) So far the another suspicious circumstances raised that the testator died 10 years after execution of will is concerned also is not suspicious circumstances rather it strengthen genuineness of the will. It may be mentioned here that the will is a registered document in the present case. The evidence has been produced to the effect that testator admitted the will even before the Registering Officer. The will has been brought on record according to the provision of law. So far the third suspicious circumstances is concerned, also in my opinion, it is not at all suspicious circumstances. Only because the neighbours have not been cited as witnesses in the will, it does not create any suspicious about the genuineness of the will.

(20) One of the circumstances in this case is that the will has been executed in the year 1981 whereas Fateh Bahadur Singh died after 10 years in the year 1991. From perusal of the registered will, Ext.1, it appears that it is mentioned that Fateh Bahadur Singh at the age 60 executed the said will. Therefore, he was not anticipating his death soon but as a precautionary measure, he executed the will and, therefore, it cannot be said that he did not make any provision for marriage of his daughter.

(21) The learned counsel for the appellant submitted that because of old age, Fateh Bahadur Singh was not able to understand the affairs and was sick. So far this submission is concerned, it may be mentioned here that the burden was on the appellants to prove this fact. On the contrary to prove the soundness of his health and mind, the respondent Ajay Kumar Sharma has brought on record various documents. Ext.3 is registered lease deed dated 27.01.1984 which has been executed by Fateh Bahadur Singh. Ext.4 is a gift deed dated 27.08.1990 executed by Fateh Bahadur Singh in favour of Ajay Kumar Sharma, the plaintiff-respondent. Ext.7 is registered exchange deed dated 08.08.1986 executed by Fateh Bahadur Singh. Ext.15 is special power of attorney executed by Fateh Bahadur Singh in favour of an Advocate on 06.04.1989. All these documents were executed by Fateh Bahadur Singh after execution of the will, Ext.1. Likewise Ext.28 dated 23.07.1990 shows that Fateh Bahadur Singh nominated Ajay Kumar Sharma to receive kisan vikas patra. In Ext.21, the order-sheet of the year 1986, Ext.22 the order of Title suit No.8 of 1985, Ext.23, the orders passed on consolidation proceeding which are also after the year 1981 shows that Fateh Bahadur Singh was contesting the cases. These documents shows that even after 1981, Fateh Bahadur Singh was of sound mind and was keeping good health.

(22) In the case of Surendra Pal Vs. Dr. Miss. Saraswati Arora reported in AIR 1974 (Supreme Court) 1999 relating to burden of prove in probate proceeding, the Hon'ble Apex Court held that the  propounder has to show that the will was singed by the testator, that he was at the relevant time in sound disposing state of mind, that he had understood the nature of disposition, that he put his signature to the testament of his own free will and that he had singed it in the presence of the two witnesses who attested it in his presence and in the presence of each other. Once these elements are established the onus which is placed on the propounder is discharged.

(23) In the present case from the discussion of the evidences oral and documentary, it appears that the propounder has been able to show that at the time of execution of the will, Fateh Bahadur Singh was in disposing state of mind and had understood the nature of disposition and put his signature of his own free will in presence of the attesting witnesses. There is no evidence about fraud or undue  influence.

(24) The learned counsel for the appellant submitted that it is unnatural that Fateh Bahadur Singh would have executed the will in favour of the third son excluding the widow, the daughter and the two sons. So far this submission is concerned, in a decision reported in 2001 (2) PLJR 184 (Vikas Singh Vs. Devesh Prakash Singh), it has been held at paragraph 28 that doubt may arise as to the genuineness of the disposition in cases where failure to make provisions for the children where the property is given to some relation or outsider but where as between two sets heirs, the testator prefer one of them position will be different. After all the very object of executing the will is to give the property to particular person on the inclusion of or in preference to other heirs. In the present case at our hand from perusal of Ext.1, it appears that it contain reasons for depriving some heirs that is the objectors.

(25) In view of my above discussion, I find that Ext.1, the will has been brought on record according to law and the same is a genuine will executed by Fateh Bahadur Singh.

(26) The learned counsel for the appellant submitted that in the will, no property have been mentioned. It is only mentioned that the properties movable or immovable in the name of Fateh Bahadur Singh or in benami land shall go to Ajay Kumar Sharma. The learned counsel submitted that because the properties in the name of family is joint family property and Fathen Bahadur Singh had no definite share, therefore, no particulars of his property has been mentioned but the plaintiffrespondent, Ajay Kumar Sharma of his own wish has given a list of properties in the probate application wherein all the joint family properties has been mentioned and, therefore, letters of administration cannot be granted with respect to the joint family property. In reply to this, the learned counsel for the respondent submitted that the probate Court cannot decide the title of the executor nor the appellant are entitled to raise this question. The learned counsel further submitted that the appellant cannot dispute the title of the executor of the will regarding the property.

(27) Section 2 (h) of the Indian Succession Act defines Will which is quoted hereinbelow:

2.h "Will" means the legal declaration of the intention of a testator with respect to his property which he desires to be carried into effect after his death. 

(28) According to the definition, a will is expressed intention as to what should happen to the property of the testator on his death. A will though executed by living person takes effect only on his death. When a will takes effect, what takes place is not a conveyance but only a succession. Instead of succession taking place in favour of heirs as laid down by the personal law of the testator in the case of a Will, succession takes place as pre-determine by testator in the will. From the definition of "will", it appears that the testator can declare his intention with respect to his property. Section 59 of the Indian Succession Act reads as follows:

"Person capable of making wills :- Every person of sound mind not being a minor may dispose of his property by will."  

(29) According to Section 59 also, the testator may dispose of his property by will. Section 273 of the Indian Succession Act also speaks that probate or letters of administration shall have effect over all the property and estate movable or immovable of the deceased. Therefore, from all these provisions of Indian Succession Act, it is clear that the testator can dispose of his property by will and the probate or letters of administration shall have effect over his property only. In the present case in the will, it is not mentioned about which are the properties of the deceased, Fateh Bahadur Singh. In other words description of properties is absent in the Will. It is only mentioned that the properties movable or immovable in the name of Fateh Bahadur Singh or in the benami name shall go to respondent, Ajay Kumar Sharma. In the probate application, Ajay Kumar Sharma has given the lists of properties and it is submitted by the learned counsel that all these properties belong to Fateh Bahadur Singh exclusively. From perusal of the objection of the appellant in para 8, 9, 10, it appears that it is clearly mentioned that all these properties are joint family properties. D.W.1, Radhika Devi in paragraph 9, D.W.2, Dr. Virendra Prasad Sharma in his evidence at paragraph 9 and 10 and D.W.1 examined on behalf of Virendra Prasad Sharma in his evidence, all have stated that the properties mentioned in the probate application are joint family properties. The learned counsel for the respondent submitted that the appellant cannot dispute the title of the testator and the probate Court cannot decide this dispute. So far this submission is concerned, it is true that the probate Court cannot decide the title of the testator with respect to the property bequeathed by him but on this pretext the petitioner / plaintiff cannot be allowed to include the properties of others also, particularly when there is no description of the property in the will. As discussed above from perusal of Ext.1, it appears that the warding of Section 263 of the Indian Succession Act has been mentioned without giving the details of property. When there is no description of property in the will, there can be no presumption that the description of property given by the respondent in the probate application are the property of the testator. In this present case, admittedly partition suit No.123 of 1993 filed by Dr. Virendra Prasad Sharma is pending between the parties. In the evidences, the witnesses have stated that the properties are joint family properties. According to the learned counsel for the respondent, title cannot be decided in a probate case. This submission is applicable against the respondent also because the respondent is mentioning the details of the properties in the probate application which is absent in will. Therefore, the respondent is estopped from giving the details of property of his own and say that the testator was the owner of the property mentioned by him in the probate application. There is no evidence that there has been partition between the parties and moreover had there been partition between the parties, the testator would have mentioned his property in details in will itself. In a joint family, a coparcener has no power to dispose of coparcenary property by Will. The Will operate only on the property of the testator. So far this questions are concerned in the case of Vikas Singh (Supra) at paragraph 6, it has been held that as regards the use of the words "His Property", it is clear and implicit that a person can execute a will like any transfer deed only with respect of his own property and not someone else property. For better appreciation, paragraph 6 may be quoted here :

"6. Whether a person was incapable of executing a will by reason of any physical and / or mental incapacity is certainly a relevant point and, in fact, the most relevant point which is to be decided in Probate/Letters of Administration proceeding and in this case also I would deal with this aspect later in this judgment. As regards the use of the words his property, it is clear and, if I may say so, implicit that a person can execute a will, like any transfer deed, only with respect of his own property and not someone elses property and, therefore, nothing much turns on use of those words in Section 59 as to confer jurisdiction on the probate Court to decide any dispute relating to title, ownership etc. of the testator/testatrix in the property which is thesubject matter of the will. It is settled  legal position that it is not the duty of the probate Court to consider any issue as to title of the testator to the property with which the will propounded purports to deal or to the disposing power the testator may have possessed over such property or as to the validity of the bequeaths made. See, for example, the case of Kashi Nath vs. Dulhin, AIR 1941 Patna 475. Proceeding for grant of probate or letters of administration is not suit in the real sense, it only takes the form of a regular suit according to the provisions of the Code of Civil Procedure, as early as may be" - vide section 295 of the Act. Reference may be made to a Division Bench decision of this Court in Sidhnath Bharti vs. Jai Narayan  harti, 1994 (1) PLJR 644, a Full Bench decision of the Allahabad High Court in Panzy Ferondes vs. M.F. Queoros, AIR 1963 Allahabad 153, and a Division Bench decision

of the Calcutta High Court in Batai Lall Banerjee vs. Debaki Kumar Ganguly, AIR 1984 Calcutta 16. The grant of probate or letters of administration is decisive only of the will propounded and not of the title etc. of the testator to the property. As the issues relating to title, ownership etc. are not to be gone into in such proceeding, it follows that even a favourable decision in favour of the petitioner/plaintiff granting probate or letters of administration in his favour does not operate as res judicata in any future suit which the Objector is at liberty to bring seeking declaration of his right, title, interest etc. in the property. In the above premises the objection of the Objector as to disposing capacity i.e. ownership of the testatrix is rejected.

(30) In view of the above settled principles, the plaintiff respondent  is not entitled for letters of administration with respect to joint family property. Although the will is genuine one. It may be mentioned here that the property in the probate case are subject matter of partition Suit No.123 of 1993. In that suit, it will be decided which property belonged to Fateh Bahadur Singh and what will be his share. Therefore, according to the learned counsel for the respondent himself the right title or interest of Fateh Bahadur Singh is yet to be decided which cannot be decided in the present probate case. According to the respondent, Ajay Kumar Sharma, the property mentioned in Schedule of probate application belong to Fateh Bahadur Singh. The learned counsel for the respondent submitted that the gift deed decided in favour of Fateh Bahadur Singh have been filed. As stated above, this issue cannot be decided in the probate case. Unless this question is decided by appropriate forum of competent jurisdiction, letters of administration cannot be granted because letters of administration is to be granted with respect to the property of the testator only. Here, the testator himself has not mentioned his property. The  respondent is giving the details of the property which according to the objectors is joint family property. The learned counsel for the appellant submitted that whole of the joint family property has been mentioned in the probate application and nothing is left. 

(31) In the case of A. Raghavamma & Ors. Vs. A. Chanchamma & Ors. AIR 1964 (Supreme Court) 136, the Hon'ble Apex Court has held  hat Will could not be executed with respect to undivided share of the joint family property.

(32) In view of my above discussion, I come to the conclusion that no letters of administration can be granted with respect to the property mentioned by the respondent. The finding of the Court below on this point is, therefore, reversed.

(33) The decision of the probate Court is conclusive only to the limited extent that the instrument admitted to probate is last will of the testator but not as to the rights on property disposed of by the Will. In the present case, it is reiterated that in the Will, the decision has not mentioned about the details of his property.

(34) In view of the above discussion, in my opinion, the plaintiff- respondent is not entitled for letters of administration with respect to the property mentioned by him. Therefore, the learned Court below could not have allowed the application for probate and could not have granted letters of administration. In such view of the matter, the impugned Judgment is unsustainable in the eye of law.

(35) In the result, the Appeal is allowed and the Impugned Judgment and Decree are set aside. The probate application is dismissed. In the facts and circumstances of the case, the parties shall bear their own costs.