URMILA AGARWALA Vs. LAV KUMAR AGARWAL

JUDGEMENT

(1.) THIS appeal at the instance of plaintiff -appellant is directed against the judgment dated 28.6.1997 passed in Original Suit No. 2/96/Probate Case No. 161/93 whereby and whereunder the learned IVth Additional Judicial Commissioner, Ranchi granted the Probate of Will of Late Lachhman Prasad Agarwal in favour of the plaintiff -appellant in part.

(2.) THE case of the plaintiff -appellant (hereinafter to be referred as appellant} is that the appellant has filed an application in the Court of learned Judicial Commissioner. Ranchi for grant of Probate of the Will executed by Late Lachhman Prasad Agarwal who was her husband and which was his last Will executed on 31.3.1992 and the same day it was registered also in the office of the District Sub -Registrar. Ranchi within the jurisdiction of this Court. By his last Will, Late Lachhman Prasad Agarwal bequeathed all his estate, properties, moneys rights and assets belonging to him to his wife -appellant. By that Will, he bequeathed all his moveable and immoveable properties to the appellant. Late Lachhman Prasad Agarwal died on 18.10.1992 leaving behind the following heirs : -

(3.) LEARNED counsel appearing for the appellant submitted that Court was not justified in granting conditional Probate of Will without appreciating legal -position. Learned counsel further pointed out that learned Court below committed an error in framing issue No. 1 as whether property is ancestral or joint property, although no decision has been given on this point. Learned counsel further pointed out that finding of the learned Court below that this Court cannot grant Probate in respect of the property lying outside the jurisdiction of the Court is wrong. Learned counsel further pointed out that Court is competent enough to grant probate in favour of the appellant even in respect of the properties which outside the jurisdiction of the Court. In this connection, learned counsel placed reliance on 1998 (2) All PLR 348 wherein jurisdiction of District Court has been discussed and it has been held that District Court has jurisdiction to grant Probate even when such Probate is inoperative in relation to the properties situate -outside the province of the District Court. 1996 (1) PLJR 878 wherein it has been held that Probate proceeding is limited only to the extent can examine genuineness of execution of Will and competence of testator but cannot decide Title of respective parties arising out of sale and purchase. Hence, it was submitted that the Probate Court cannot put condition while granting Probate in favour of the appellant.