BRIJITA NONGBRI Vs. JASINTA NONGBRI

JUDGEMENT

(1.) This Civil Revision Application filed under Rule 6 of the High Court of Meghalaya (Jurisdiction over District Council Courts) Order 2014, read with Article 227 of the Constitution is with a prayer for setting aside the impugned order dtd. 24/7/2023, passed by the Additional Judge, District Council Court, Shillong, in Probate (Misc.) Case No. 1 of 2018.

(2.) The brief facts are that the respondent had filed an application for probate of a will dtd. 1/9/2017, allegedly executed by the mother of both the parties herein, and the same was registered as Probate (Misc.) Case No. 1 of 2018. The petitioners on receipt of notice, then contested the probate application by filing a common show cause, and also the suggested issues. By order dtd. 1/2/2022, the probate court framed 13 issues and on the basis of the issues, the petitioners had then challenged the maintainability of the probate petition, on the ground that the respondent could not have filed for probate, as the Testatrix had appointed an Executor for the will, and that as per Sec. 222 of the Indian Succession Act, 1925, only an Executor can file for probate. The Lower Court however, dismissed the challenge of maintainability, on the ground that the issue was required to be determined through evidence, and also that the Testatrix had expressly named the petitioner in the will. The preliminary issues as framed therefore, were in the view of the Lower Court, to be decided through evidence. The petitioners being aggrieved thereby are before this Court, assailing the impugned order.

(3.) Mr. L. Khyriem, learned counsel for the petitioners has submitted that the Court below, came to a perverse finding in rejecting the plea of maintainability raised by the petitioners, inasmuch as, the deceased mother of the party during her lifetime was in absolute possession of two plots of land, which she disposed of by way of sale to the petitioner No. 7, vide Sale Deeds dtd. 8/10/2007 and 12/7/2006, respectively. The purported will dtd. 1/9/2017 he submits, could not have been executed as by this time, the property was already vested with the petitioner No. 7, and as such, in view of the aforesaid facts, the probate case should have been rejected. It is further submitted that all the parties in the instant Revision, being the children of the Testatrix including the respondent, had issued a No Objection Certificate dtd. 25/1/2008, certifying the ownership of the petitioner No. 7, over the suit properties, and as such, the respondent herself being well aware of the fact that the property no longer vested with her mother, there is no question of a will being executed for the said properties, and it is clear that the will was fabricated and manufactured. He submits that the finding of the Court below that the Testatrix had expressly named the respondent in the will, and hence, she was competent to apply for probate is contrary to law, inasmuch as, probate can be granted only to an Executor, as per Sec. 222 of the Indian Succession Act, 1925, in this case being one Shri. Arch Angelo Syndor, who was appointed as an Executor of the purported will dtd. 1/9/2017.