LALLUBHAI CHHOTABHAI Vs. VITHALBHAI PARSHOTTAMBHAI

JUDGEMENT

(1.) This Letters Patent Appeal is directed against the decision rendered on August 16, 1979 in First Appeal No. 514 of 1975 by M. K. Shah, J. The appeal before M. K. Shah, J. was under Section 299 of the Indian Succession Act, 1925 (hereinafter referred to as 'the Act') and it was directed against the decision dated December 30, 1974 rendered by the Second Joint Civil Judge, Senior Division, Nadiad, in Miscellaneous Application No. 7 of 1970 purported to have been made under Section 276 of the Act, thereunder probate of the Will dated April 13, 1961 executed by one Dahyabhai Nanabhai Patel, who died on October 21/22, 1967, was granted to the respondent. M. K. Shah, J. dismissed the appeal and hence the present Letters Patent Appeal.

(2.) On January 29, 1970, the respondent made the application giving rise to this appeal in the Court of the District Judge, Kaira, stating, inter alia, that the document annexed to the application was the last Will and testament of Dahyabhai Nanabhai Patel and that the respondent was the executor named in the said Will. The respondent prayed that the probate of the Will might be granted to him in the interest of justice. The appellants were shown as opponents in the cause title of the said application. The appellants appeared and filed their Written Statement, Ex. 14. In para 4 of the Written Statement, the appellants specifically contended that the respondent was not the executor appointed under the Will. In view of the aforesaid dispute, the respondent made an application, Ex. 53, for amendment and sought permission to amend the application by insertion of an averment to the effect that he was "the sole legatee of all the properties under the Will" and an alternative prayer for the grant of Letters of Administration with the Will annexed. The application was duly granted.

(3.) In the appeal, five contentions were advanced before M. K. Shah, J. on behalf of the appellants. They were: (1) that the application for probate was not maintainable because the Will did not name the respondent as the executor, (2) that assertion of the respondent in the application that he was the executor appointed under the Will was incorrect and there was no due compliance with Section 276(1)(e) of the Act, (3) that there was non -compliance with Section 281 of the Act inasmuch as the application for probate was not verified by at least one of the witnesses to the Will as required by law, (4) that the Will was a forged document and it was not proved to have been duly executed by the testator and (5) that the respondent had failed to clear the suspicious circumstances are surrounding the alleged execution of the Will.