SHIVENDRA GOSWAMI Vs. STATE OF UTTARAKHAND

JUDGEMENT

(1.) A very peculiar, but though an interesting question, which emerges for consideration in this Appeal from Order, which has been preferred under Sec. 299 of the Indian Succession Act, 1925 by the appellant herein, is while challenging the part of the judgement and orders dtd. 25/8/2015 and 26/8/2015, which had been passed by the learned Additional District Judge, Almora, while deciding the Probate Application No. 9 of 2013, filed by respondent No. 2 herein, under Sec. 217 of the Indian Succession Act of 1925, for the grant of probate of the estates of late Mr. Babu Ram Sharma, on the basis of an alleged Will dtd. 2/10/1989, which was an unregistered document, claimed to have been executed in favour of respondent No. 2.

(2.) In case, if the probate application itself, which was instituted on 21/10/2013, before the Court below, is taken into consideration, in fact, the applicant thereto, i.e. responder No. 2 herein, had contended for issuing of a probate in her favour in relation to the estates of late Mr. Babu Ram Sharma, which was based upon the Will dtd. 2/10/1989. But, while raising pleading pertaining to the claim of the estate of late Mr. Babu Ram Sharma based upon an unregistered Will, a very strange pleading has been taken in para 3 of the probate application under Sec. 217 of the Indian Succession Act, to the effect that the testator of the Will i.e. late Mr. Babu Ram Sharma, who had a right over the property, which was admittedly executed in his favour under the Government Grant Act, in relation to the land lying in khasra No. 63M, having an area of 11870 i.e. 12/16 nali, which is said to have been executed in favour of late Mr. Babu Ram Sharma; on the basis of the provisions of Government Grant Act, wherein a leasehold right was alleged to have been executed in his favour for a period of 30 years but, the adoption deed which was executed in favour of the present appellant. In fact, there was no specific contention ever raised for the adoption deed paper No. 31 (ka), which was admittedly registered on 23/11/1992 in favour of the present appellant.

(3.) The probate proceedings were carried on merits and the parties led their respective evidences and ultimately, the probate application, which was registered as Case No. 9 of 2013, Kamla Goswami Vs. Shivendra Goswami and Another, wherein she has sought a probate of the Will and which was on the basis of an unregistered Will dtd. 12/10/1989, in relation to the property, already detailed hereinabove, which was the subject matter of Government Grant Act being Act No. 15 of 1895, the learned Court of Additional District Judge, Almora, vide its judgement dtd. 25/8/2015, had rejected the probate application, preferred by respondent No. 2 herein, under Sec. 217 of the Indian Succession Act of 1925.