KUMAR SHARMA & ANR Vs. JAGDISH MULCHANDANI

JUDGEMENT

(1.) This contentious cause is now sought to be disposed of on the basis of a memorandum of settlement arrived at between the parties.

(2.) The probate court is required to decide the validity and genuineness of the Will. It operates as a declaration in rem. Probate cannot be granted on the basis of the terms of settlement arrived at between the parties. Any such grant would be defective and contrary to law. In AEG Caripeat Vs. A.Y. Derderian, 1961 AIR(Cal) 359 it has been categorically held that a grant of probate cannot be made by the consent of the parties. It is the duty of the Court to satisfy itself whether the Will proposed was really and truly the Will of a capable testator or not. It may be profitable to refer to the following passage from paragraph 28 of the report which reads as follows :-

(3.) What would be the duty of the probate court in a situation where the parties have entered into a settlement to be considered in a probate proceeding is explained in paragraph 29, 30 and 31 which read as follows :-