UMA AGGARWAL Vs. YADVINDER THAKAR

JUDGEMENT

(1.) THIS Letters Patent Appeal is directed against the judgment of Single Judge of this Court dated April 16, 1991, delivered in Probate Case No. 4/1989 whereby probate was ordered to issue in respect of Will and condicil executed by Seth Bagirath Dass, the deceased, in favour of Sh. Yadvinder Thakur as executor. The challenge in this appeal is not to the relief granted as aforesaid but to the orders passed in two miscellaneous applications which were also disposed of vide aforesaid judgment. In Civil Misc. No. 6350-CII/1990, a direction was given to Shmt Uma Aggarwal, the present appellant to deliver possession of bungalow No. 31, Sector 9-A, Chandigarh to Sh Yadvinder Thakur To this, there was no objection raised by Shmt. Uma Aggarwal, as mentioned in the order. In Civil Misc. 109-CII/1991, it was agreed that Shmt Uma Aggarwal would retain certain documents relating to charitable trust created by the deceased and the remaining documents in original as detailed in Schedules A and B annexed to the main petition were to be handed over to Sh. Yadvinder Thakur.

(2.) PROBATE case was instituted by Shmt. Uma Aggarwal Under Section 278 of the Indian Succession Act for the granted of letters of administration of Will dated January 21, 1985, and codicill dated December 28, 1988 of late Seth Bhagirath Dass, Advocate, who died on November 25, 1989. It was alleged that Sh. Yadvinder Thakur was named as executor under the Will dated January 21 1985 but he had- declined to act as such. Further details of the properties with respect to which the relief was claimed are not necessary for the decision of this appeal. Suffice it to say that during pendency of the aforesaid petition, Sh. Yadvinder Thakur was transposed as one of the petitioners who also claimed relief. The following issues were framed in the case as Shmt. Soni Bai, widov of the deceased Seth Bhagirath Dass, had challenged the Will and the codicil: -

(3.) SH. Jagan Nath Kaushal, Senior Advocate, appearing on behalf of the appellant Shmt. Uma Aggarwal, has argued that the directions given in the aforesaid two miscellaneous applications for delivery of possession of the house at Chandigarh and the documents relating to properties as per Schedules A and B attached to the petition were beyond jurisdiction of the Court. The court was only required to determine the genuineness of the Will and the codicil executed by the deceased and holding the same to be genuine, rightly directed issue of probate in favour of Sh. Yadvinder Thakur. As already stated, the findings on the issue aforesaid with respect to the execution of the Will and the codicil and the grant of the relief of probate in favour of Sh. Yadvinder Thakur are not in challenge in this appeal. A further contention of Sh Kaushal in this respect in that the consent given by the appellant for giving such directions in the impugned judgment will not clothe the court with jurisdiction. In support of these contentions, reliance has been placed on some judicial decisions. In The United Commercial Bank Ltd. v. Their Workmen, A. I. R. 1951 S. C. 230 in para 15 the following observations were made :-