SHANTI DEVI Vs. URMILA DEVI

JUDGEMENT

(1.) HEARD Sri G.N. Verma, Senior Advocate assisted by Dr. Madhu Tandon, learned counsel appearing for the appellants and Sri M.K. Gupta, learned counsel who appears for respondent No.1 only. The dispute is in respect of a registered will dated 8.11.1982 alleged to have been executed by one Smt. Baikunthi Devi. One suit for the cancellation of the above will was instituted. Besides the above suit, Smt. Urmila Devi respondent No.1 in whose favour the will was executed, applied for probate of the will. Both the proceedings were clubbed together and decided by common judgment. The suit for cancellation of the will was dismissed against which First Appeal 277 of 2009 is pending in this Court which has been admitted on 22.4.2009. The miscellaneous case for the probate of the will has been allowed and, therefore, appellants have preferred this First Appeal From Order. Since the judgment in both the proceedings is same and the other appeal has been admitted, this appeal also requires to be admitted and heard along with the aforesaid appeal. Admit and connect with the above referred First Appeal No. 277 of 2009 (Smt. Shanti Devi and another Vs. Smt. Urmila Devi) Issue notice to the respondent Nos.2 to 8. Notice need be issued to the respondent No.1 who is duly represented. The contention of the appellants is that the property involved is joint family property which is subject matter of partition in respect whereof a preliminary decree has already been passed but final decree has not been prepared. Therefore, Smt. Baikunthi Devi had no legal right to execute the will in respect of the said property. In support he has relied upon AIR 1872 SC 1279 M.N. Arya Murthi and another Vs. M.L. Subbaraya Setty (dead) by his LR's and others. In reply Sri M.K. Gupta has submitted that in a proceeding for probate only two things are required to be considered i.e. whether the person executing the will was competent and in a sound disposing mind at the time of the execution of the will and secondly, as to whether the will was duly executed and proved to have been so executed and as such the question as to whether executor was legally entitled to execute the will in respect of the properties involved or the question of title of the properties is not the subject matter of the probate proceedings. There is no dispute to the proposition of law that a coparcener cannot devise jointly family property or part thereof by will but it is equally settled that in probate proceedings only the genuineness of the due execution of the 'will' is to be seen. Besides, in view of Section 57 of the Indian Succession Act, 1925 vide AIR 2004 Allahabad 329 Smt. Bimla Gaindhar Vs. Smt. Uma Gaindher and another probate of a 'will' is not necessary in the State of U.P. Therefore, when probate is not necessary, the will even if un-probated will stand and the judgment and order granting probate to the will would not be very material to the rights of the parties in the property. Apart from the above in view of the Apex Court decision in 2007 (11) SCC 357 Kanwarjit Singh Dhillon Vs. Hardyal Singh Dillon and others and 2008 (4) SCC 300 Krishna Kumar Birla Vs. Rajendra Singh Lodhe and others, the question of title of the property involved under the will is altogether alien to be probate proceedings. The perusal of the stay application with affidavit reveals that no case for grant of any interim order has been pleaded or made out. The appellants have no where stated and described the manner in which they would suffer any loss much less irreparable loss in the even the impugned judgment and order is allowed to stand. In view of the above, I find no justification for grant of any interim order at this stage. However, it is made clear that the grant of probate to the will shall in no way adversely affect the rights of the parties involved in the partition suit and it would be open for the parties to take recourse to whatever legal remedies that may be available to them under law for getting their title over the properties said to be involved decided independently. The stay application as such stands rejected with the above observations.