INDER CHAND Vs. ARYA PRATINIDHI SABHA

JUDGEMENT

(1.) One Smt. Chanderwati made a will of her property on 27-4-67 in favour of Respondent. Latter applied for grant of probate after her death on 30-8-67. Appellant questioned the will and raised other objections. Trial Court held the will genuine and held that other objections could not be gone into in probate proceedings. Appellant appealed to High Court. Para 3 onwards, judgment is :

(2.) Mr. R.K. Sharma, counsel for the appellent has raised two questions of law, namely. (1) in view of section 222 of the Act, probate could not be granted to a person, who was not named an executor by the will and as such the impugned order is illegal and without jurisdiction ; and (2) the respondent is an association and so neither probate nor letters of administration can be granted to it. These points had not been raised in the court below or in the grounds of appeal in this court. But by my order dated 21st April, 1976, I have allowed them to be raised and given an opportunity to Mr. Marwaha to meet them. One of the questions raised at the bar is that the order of the court below is without jurisdiction under section 222 of the Act as by the will the testator had not appointed any executor. Section 222 of the Act reads :

(3.) In Edward Waston Coleston v. Theresa Chitty. AIR 1934 All. 1053, and Smt. Sushilabai v. Govind Ganesh, AIR 1958 M.P. 372, it has been held that a probate cannot be granted to any person unless and until he has been named an executor in the will. As such it is contended that the grant of probate was illegal and without jurisdiction.