KESHAB PRASAD Vs. RAM PUJAN SHAH

JUDGEMENT

(1.) Can the Probate Court decide any question of title "or the existence: of the property allegedly bequethedby will ? Is the core question that arises for determination in this case.

(2.) The brief facts giving rise to the aforesaid question may be noted -- Rampujan Prasad Shah filed a petition-before the District Judge for grant of probate of a Will alleging that his father Sahadeo Prasad Shah died on 21st March, 1978 at'Dhubri'leaving the major portion of his property within-the jurisdiction of that Court. Prior to his death the deceased had executed a registered will on 29th December/66 wherein the deceased had appointed the petitioner as the sole executor of the will. The opp. parties before tli Distrigt Judge, namely, Keshab Prasad, Madanlal and Ramaswarupi Devi, submitted written statement wherein it was averred that they had divided the whole properties by registered deed of partition dated 15.5.67, However, the petitioner before the District Court denied any such partition. Sahadeo Prasad and Nagnarayan were the brothers. iSahadeo Prasad, the testator had adopted the petitioner, Rampujan, as a son. Sahadeo Prasad and Nagnarayan owned property and . Nag Narayan had several sons. Out of his share, i.e. 8 annas, Sahadeo Prasad in the partition had kept to himself 6 annas share and gave 2 annas share to the heirs of Nag Narayan Prasad. Accordingly, the heirs of Nag Narayan got 10 annas share of the entire Dhubri properties and 6 annas share was retained by Sahadeo Prasad. It was contended in the written statement that the will which was executed on 29.12.66 could not be enforced owing to the execution of the partition deed by Sahadeo Prasad and heirs of Nag Narayan on 13.5.67. as the will stood revoked and therefore no probate could be granted to Rampujan petitioner. As many as 6 issues were framed which were as follows :

(3.) 0n the basis of the evidence led before the District Judge on Issue Nos. 1,2 and 3 it was held that the will had not been revoked fully and will had been executed by Sahadeo Prasad. It was further held on Issue No. 4 that there was a partition, but by that partition the will had not been fully revoked and it was operative to the extent of share of 6 annas belonging to testator Sahadeo Prasad Shah. The probate was granted to Rampujan Shah in the following terms: