RAM KISHAN Vs. BABULAL CHAUDHARI

JUDGEMENT

(1.) THE appellants had preferred this letters patent appeal against the judgment and decree dated 15th of February, 1985 passed by learned Single Judge of this Court in Civil First Appeal No.5 of 1977.

(2.) THE brief facts are that a Will was claimed to have been executed by one Durga Prasad in favour of respondent No. I on 15th of November, 1969. The respondent Babulal Chaudhary had filed a petition under section 276 of the Indian Succession Act for grant of a probate before District Judge, Guna, on 18th of January, 1971. The District Judge of Guna refused to grant a probate by his judgment dated 10th of November, 1976 giving certain reasons. Against that judgment first appeal was preferred before this Court being appeal No.5 of 1977 which was heard and decided by the then Hon. Mr. Justice Rampal Singh on 15th November, 1985 whereby the judgment of District Judge was set aside and learned Single Judge of this Court allowed the petition and granted a probate in favour of the respondent. Against that judgment of the learned Single Judge the present letters patent appeal was preferred. At the time of hearing of this letters patent appeal before a Division Bench of this Court consisting of Hon. Mr. Justice Dr. T.N. Singh and Hon. Mr. Justice R.C. Lahoti, a preliminary objection was raised by the respondents that the letters patent appeal was not maintainable as no letters patent appeal could lie against the judgment of a single Judge granting probate on an appeal against the order of District Judge, under section 299 of the Indian Succession Act, 1925.

(3.) THE other member of the Division Bench, Brother R.C. Lahoti, J. did not agree with Brother Dr. T.N. Singh, J. and gave a separate judgment holding reasons that the letters patent appeal against judgment of Single Judge alongwith the appeal under section 299 of the Indian Succession Act was maintainable before a Division Bench of this Court under Clause 10 of Letters Patent.