[2025:RJ-JP:27188] HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S.B. Civil Miscellaneous Appeal No. 3016/2013 Smt. Sher Banu d/o Late Shahjahan Begam w/o Hafijurrahman (since deceased) Through her legal heirs: 1/1) Hafijar Rahman Maulavi Thadiwale (husband) 1/2) Jiyaur Rahman (son) 1/3) Majibur Rahman (son) 1/4) Nasibul Rahman (son) 1/5) Hamidur Rahman (son) 1/6) Nasibur Rahman (son) 1/7) Smt. Meharbano (daughter) r/o New Colony, Bus stand, Pisaganj, Ajmer. 2. Smt. Nasrat Bano d/o Late Smt. Shahjahan Begam w/o Shri Saiyad Asif Ali r/o Asif Meshan, Dargah Sharif, Ajmer through power of attorney holder Shri Saiyad Asif resident of Asif Me- shan, Dargah Bazar, Ajmer ----Appellants Versus 1. Shri Anwar Beg @ Mammu s/o Shri Yusuf Beg (since de- ceased) through legal heirs: 1/1) Mohammad Kamwar Beg son of Late Anwar Beg 1/2) Firoja Begam w/o Late Anwar Beg 1/3) Shahnawaj Beg son of Late Anwar Beg All r/o Makan No.430/7, Phool Gali, Dargah, Dargah Bazar, Ajmer 1/4) Smt. Afroja Begam w/o Khalil Badshah d/o late Anwar beg, r/o Lohar Mohalla, Kelabawadi, Undercode, Ajmer 2. Smt. Rashida bibi w/o Farjand Ali, r/o Kahar Manjil, Dargah Bazar, Ajmer 3. Shri Gulam Husain s/o of Shri Gulam Mustafa 4. Shri Gulam Abbas son of Gulam Mustafa 5. Smt. Sanjeeda bibi w/o Sakur Mohammad 3 to 5 are resident of 93/5, Under Court, Ajmer ----Respondents For Appellant(s) : Mr. Adeet Srivastava with Mr. Jay Bhardwaj on behalf of Mr. Rajesh Goswami For Respondent(s) : Mr. Vivek Goyal HON'BLE MR. JUSTICE MANEESH SHARMA Order 21/07/2025 1. The present appeal has been filed by the appellants under Section 299 of the Indian Succession Act, 1925, against the [2025:RJ-JP:27188] (2 of 4) [CMA-3016/2013] judgment and order dated 10.05.2013, passed by the learned Dis- trict Judge, Ajmer, in Civil Miscellaneous Case No.101/2001 and Civil Suit Case No.191/2004, whereby the application filed by the appellants for probate of the Will of Smt. Hafijan was dismissed. 2. Brief facts giving rise to the present appeal are that in the present case, the applicants had filed probate proceedings, stating that Smt. Hafijan was the owner of the immovable property plot No.430/7, situated at Phool Gali, Ajmer. It was further contended that Smt. Hafijan had bequeathed part of the said property orally in favour of the present appellants, and therefore, letters of probate ought to be issued in their favour. The learned Trial Court has rejected the probate proceedings, holding that the appellants had failed to prove the fact that the property was owned by Smt. Hafijan and also failed to establish the factum of the oral Will as alleged by them. 3. It has been contended by the learned counsel for the appel- lants that from the evidence of witness Sayaid Asif Ali (PW-1) and Gulam Abbas (PW-2), it is reflected that the property was owned by Smt. Hafijan and Smt. Hafijan has orally bequeathed the prop- erty in favour of applicant. Therefore, it was submitted that the application for probate ought to have been allowed. 4. Per contra, learned counsel for the respondents vehemently opposed the submissions made by the learned counsel for the appellants. It was submitted that the appellants have failed to prove the facts stated in the probate petition; therefore, it cannot be said that the impugned order suffers from any illegality or infir- mity. Accordingly, they prayed for the dismissal of the appeal. [2025:RJ-JP:27188] (3 of 4) [CMA-3016/2013] 5. Heard and considered the submissions made by the learned counsel for the parties and perused the material available on record. 6. From a bare perusal of the impugned order, and from the evidence of witness Syyed Asif Ali (PW-1), it is reflected that Smt. Hafijan expired on 03.01.1967. The application under Section 276 of the Indian succession Act was filed after 34 years on 31.08.2001, in the cross examination, Syyed Asif Ali (PW-1) ad- mitted that no documentary proof was available with them to es- tablish that Smt. Hafijan was the owner of the disputed property. 7. In the cross-examination of PW-1 Syyed Asif Ali, he has ad- mitted that " I cannot tell exact day, date and time of the Will. It is true that during these thirty-two years Sher Bano and Nasrat Bano neither disclosed about the Will nor did they try to come and live in the disputed property on the basis of the Will." Similarly the other witness AW2 Gulam Abbas has deposed that “he is illiterate and he cannot say what is written in his af- fidavit (examination in chief)...” He further admitted that he does not know the meaning of word Oral Will.” It is also pertinent to mention here that present probate petition has been filed by the Power of Attorney holder of Smt.Sher Bano and Smt.Nasrat Bano, but in the said Power of Attorney, the factum of this oral Will is not mentioned. 8. The Will in question has to be proved in accordance with law by producing witness. Burden of proof in such cases always vests on the person who claims benefit of said Will but in the present case this burden has not been discharged by the appellants in order to shift the onus upon the respondent. [2025:RJ-JP:27188] (4 of 4) [CMA-3016/2013] 9. That the alleged oral Will was not proved by PW-1 Syyed Asif Ali and PW-2 Gulam Abbas, and witness so produced also fails to make out the requirement of law for grant of probate. 10. Further, there is no conclusive finding available on record to establish the fact of the oral bequest. The learned Trial Court, while taking note of these facts held that the plaintiff had failed to prove ownership as well as the existence of the oral Will in their favour, rightly dismissed the probate application No.101/2001 as well as suit No. 191/2004 filed by the applicants. From a bare perusal of the impugned order, it is clear that the impugned order does not suffer from any illegality or infirmity, and warrants no interference by this Court. 11. Accordingly, the present appeal fails, and is hereby dismissed. 12. Pending application(s), if any, stand(s) disposed of. (MANEESH SHARMA),J Seema/61