ORDER Khan, J.
1. Appellant's Probate Petition No. 236/82 was rejected by the Probate Court (ADJ, Delhi). He is in appeal to assail the dismissal order.
2. The controversy surrounds property No. R-860, at New Rajinder Nagar, Delhi allotted to two brother Ganpat Rai Chadha and Nand Gopal Chadha. Ganpat is said to have executed a will in respect his 50% share in it which was registered on 26.10.1997 and out of which Appellant was to receive 40% of sale proceeds.
3. After Ganpat Chadha's death on 25.12.1978 appellant obtained a copy of the Will and applied for letter of probate. Notice was issued to all legal heirs and relatives of deceased testator including his co-sharer brother Nand Gopal Chadha. Most of them did not respond or, conveyed no objection but Nand Gopal Chadha contested. His stand was that the Will in question was procured under undue influence and duress of testator sister and brother.
Probate Court framed two issues on the pleadings of the parties:
1) Whether the Will has been obtained by undue influence, duress and on the dictates of Smt. Shakuntala Devi and Madan Gopal Chadha, if so, its effect.
2) Whether the deceased Ganpat Rai Chadha had duly executed his undated Will allegedly to have been registered on 27.10.1977.
4. Appellant examined himself and one Ashok Kumar Kapoor s/o Kundan Lal Kapoor, one of the attesting witnesses to the will who had also died mean while and the objector Nand Gopal examined as many as 13 witnesses. He also died on 15.9.1989 during pendency of probate proceedings and his legal heirs are said to have entered into some agreement with Appellant leading to conveying their no objection to grant of probate.
5. Even as main opposition to grant of probate had faded away, Trial court still embarked on an appraisal of documents/evidence on record to conclude that Appellant had failed to prove due execution and attestation of the will. The court did so on finding that Will was undated though registered on 27.10.1977 and that Ashok Kumar Kapoor (PW-2), son of one of one of attesting witnesses had failed to prove the contents of the will and also that his father Kundan Lal Kapoor had given a contradictory statement in Suit No. 384/84 filed by Nand Gopal.
6. Appellant's grievance is that Probate Court had wrongly taken upon himself to find fault with the execution and attestation of the will. When there was no challenge to it from any quarter and when no rival will was set up by anyone to prove to the contrary. Learned counsel for Appellant, Mr. Kher submitted that the Court could not suspect the execution of the will on its own when it was not disputed by any of the LRs/relations of the testator.
7. It appears that the Probate Court had taken upon itself to conduct the post-mortem of the will in question which it ought to have avoided. It was indeed required to satisfy its conscience but on the basis of the case set up by the parties. It could not embark on a fault finding inquiry on its own and draw conclusions dehors the rival positions taken by the parties. In other words it could not take upon itself to pick holes on the document by suspecting its execution in the absence of any opposition to that from the other side. By that it would be only be transgressing its jurisdictional limits.
8. In the present case even the contestant Nand Gopal stand was that the disputed Will was procured by undue influence and pressure etc. and not that it was not executed by the testator. Merely because it was undated could not render it non-existent when its registration was on record and undisputed. Similarly attesting witnesses son (PW-2) could not have done more than to identify his deceased father's signature as he was not a witness to the contents of the Will when it was executed.
9. Considering all this, Trial Court appears to have adopted a hypertechnical approach in smelling rat in the transaction. After all the court was seized of a situation where all the concerned parties to the transaction including the star objector and attesting witnesses had died or were not available. The surviving contestants had also given up their opposition clearing all clouds over the document. It ought to have taken an overall view of the matter, also taking in regard that the Will was in favour of a religious institution instead of applying a rigid standard of proof to disbelieve the execution of the document.
10. This appeal is accordingly allowed for the reasons given and impugned order dated 24.2.1996 passed in probate petition No. 236/82 is set aside. With that Appellant's petition is allowed and letter of probate is ordered to be granted to the will executed by testator Ganpat Rai Chadha to the extent favouring Appellant.