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In The Goods Of Late Shri Nath Gupta v. Santosh Kumar Gupta - TESTAMENTARY SUITS No. 1 of 2003  RD-AH 236 (4 January 2006)
Court No. 9
TESTAMENTARY SUIT NO. 1 OF 2003
In the matter of goods of
Late Shrinath Gupta
(Order on application No. 54753 of 2006 filed by Harvinder Nath Gupta and others)
Hon'ble Sunil Ambwani, J.
Heard Shri P.K. Ganguli, who appears for Shri Rajendra Prasad Gupta along with Shri S.N. Shukla.
He has filed an application to frame an additional issue :- 'whether the will dated 11.2.1987 set up by some of the defendants has result of undue pressure and fraud played upon his father late Sri Shrinath Gupta'.
At the time of re-framing of issues on 3.10.2005 and deleting the issue Nos. 1 and 2 regarding fraud and undue influence played upon the deceased and substituting it with the issue as to 'whether the will dated 11.2.1987 purported to be executed by late Sri Shrinath Gupta is a forged and fabricated document, Shri S.N. Shukla had not pressed the prayer.
The Court had recorded the findings that the defendants cannot join issues among themselves. Shri Rajendra Prasad Gupta is one of the defendants in the Suit. He is also beneficiary under the 'will' and has accepted the partition, which according to him, could not subject matter of the 'will'.
Further, I find that the paragraph nos. 4, 12 and 16 of the written submission of Shri Rajendra Prasad Gupta are contradictory to each other. In para 4 and 9, it is stated that the will was obtained by exercise of undue influence or fraud, whereas in para 16, he has stated that Shrinath Gupta was unconscious on 11.2.1989 and was not in his senses and thus the 'will' dated 11.2.1987 is no 'will' in the eye of law. The pleadings of fraud & undue influence and the pleadings that
the testator was unconscious and was not in a position to execute the
'will', are contradictory, to each other.
The propounder of the will is a defendant. He has to not only prove that the will was executed by Sri Shrinath Gupta, but has also to prove its due execution which includes the fact that the testator was in sound and disposing mind at the time of the execution of the will.
The application is accordingly rejected.
List for recording evidence on 24.4.2006.
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