KAIDAR NATH Vs. AMARNATH

JUDGEMENT

(1.) HEARD learned counsel for the appellants.

(2.) THE appellants-applicants filed an application before the Court of Additional District Judge, Phalodi ('the trial court') under Section 276 of the Indian Succession Act, 1925 ('the Act') seeking probate of the Will dated 21.05.2003 executed by one V.N. Agarwal, who expired on 04.05.2006. The citation of the said application was published in newspaper. No one appeared before the trial court to oppose the grant of probate. The propounder of the Will i.e. the applicants examined three witnesses and exhibited five documents. However, the trial court after hearing the applicant, noticed the judgments of this Court in Sultan Singh Vs. Brajraj Singh : 1987 (1) WLC (Raj.) 368 and Mukund Singh Bihari Sharma Vs. Satyanarain : 2007 (2) DNJ (Raj.) 585, observed that it is not necessary to obtain probate in the State of Rajasthan in view of the provisions of Section 57 of the Act and went on to reject the application filed by the appellants-applicants seeking probate of the Will dated 21.05.2003.

(3.) THE approach of the trial court is apparently not legal. The legal position that under Section 57 of the Act probate is not required to be obtained in the State of Rajasthan does not create a bar under the said provision against instituting a proceeding before a Court of competent jurisdiction seeking probate of a Will. Once the propounder of the Will, in his discretion, files an application under Section 276 of the Act, seeking probate of a Will, it is well within the jurisdiction of the Court to decide the probate proceedings, which requires the Court to decide whether the Will is the last Will of the deceased and whether the same was surrounded by suspicious circumstances, if any.