AWADHESH PRATAP SINGH Vs. ASHOK UPADHYAY

JUDGEMENT

(1.) This appeal has a long and chequered history. One will (Exhibit P/1) was executed by one Smt. Thakur Dei Bai widow of Late Shri Thakur Prasad Sharma in favour of Ashok Upadhyay-Respondent No. 1, son of Shri Rampal Upadhyay. This will is purported to be executed on 05.03.1990 whereby the testator has bequeathed her entire property in favour of legatee-Ashok Upadhyay. It is not disputed that Ashok Upadhyay was born in 1977 and at that time when this will was executed, he was a minor. Smt. Thakur Dei Bai died on 05.04.1990 soon after execution of the will. Thereafter, Ashok Upadhyay through his father Rampal Upadhyay filed a petition under Section 276 of the Indian Succession Act, 1925 (hereinafter called 'the Act') for grant of probate of the will executed by Thakur Dei Bai on 05.03.1990. It is not disputed that even at the time this petition was filed, he was a minor.

(2.) This petition for grant of probate was rejected by the Trial Court on two grounds, one, that the Petitioner had not given the details of all the immovable properties and probate had been prayed only in respect of movable properties and secondly, two rival wills had been set up, one by Appellant herein and one by Respondent No. 2-Laxmi Narayan Dev Sthan Prabandhak Committee, who were non-applicants before the Trial Court. Ashok Upadhyay by that time had turned major and he himself filed an appeal being Miscellaneous Appeal No. 794 of 2001 before this Court. This appeal was disposed of on 22.06.2005 and though this Court held that there was a defect in the petition for grant of probate inasmuch as non-mentioning of all the properties was an improper act, the Court went on to hold that this fact was not sufficient to entail dismissal of the application for grant of probate and that the probate Court should have asked the Appellant to furnish detailed particulars. With regard to second objection, this Court, after referring to the judgment of the Apex Court in Ishwardeo Narain Singh v. Smt. Kamta Devi & Others, 1954 AIR(SC) 280 held that the probate Court had nothing to do with the title of the property but is only concerned with the question as to whether the document put forward is the last will and executed according to law. Thereafter, this Court made reference to the judgment of Madhya Pradesh High Court and Sections 213 and 214 of the Act and held that though it is not necessary to seek probate but the executor is entitled to seek probate if he so desires and there is no restriction in granting probate for both the properties together. The appeal was disposed of in the following terms:

(3.) After remand, the probate application was allowed and the will set up by Respondent-Ashok Upadhyay was held to be duly executed. This order is under challenge before this Court.