ROMESH CHANDER MAGOTRA Vs. M M KHAJURIA

JUDGEMENT

(1.) Through the currency of this petition, the petitioners seek the reversal of the order dated 9-2-2002 formulated by the learned District Judge, Jammu on an application of the objectors, herein petitioners in Probate Petition commenced by respondent M. M. Khajuria under Section 62 of the Probate and Administration Act.

(2.) It appears that a petition to probate the Will dated 24-3-1993, alleged to have been executed by one O.P. Khajuria in bequeathing 'Daya Bhawan' located in Gandhi Nagar, Jammu came to be commenced by M. M. Khajuria, claiming to be the beneficiary under the Will. During the course of the proceedings in the Probate Petition an application came to be preferred by the objectors, herein petitioners in stating that a civil suit filed to challenge the Will stated to have been executed by O.P. Khajuria pending in the Court of 2nd Addl. District Judge, Jammu in assailing the competency of the testator to execute the Will and that the present proceedings under Section 62 of the Probate and Administration Act cannot continue simultaneously and be kept in abeyance till the determination of the suit. It was further contended by the objectors that the matter in controversy both in the Probate Proceedings and the Civil Suit is identical and pertain to the execution of the alleged Will.

(3.) The propounder of the Will Mr. M. M. Khajuria in controverting the contention of the objectors for stay of the Probate Proceedings submitted that scope of the proceedings for the grant of Probate in respect of a Will is to decide whether the Will has been duly executed and attested as required under law. Once the Will is probated it dispense with the proof of the execution of the Will for all times to come and is a judgment in rem. It is also submitted that the question relating to the property, if any, bequeathed or the competency of the testator to bequeath the property by executing a Will, cannot be looked into in the Probate Proceedings. The propounder also denied to have any knowledge of the commencement of the Civil Suit by the objectors in assailing the competency of O.P. Khajuria, testator in executing the Will regarding the property specified therein. Lastly, it is submitted that the Probate Proceedings cannot be stayed solely on the objectors' filing an application in stating that a Civil Suit is pending in which the competency of the testator to bequeath the property by executing the Will is questioned.