Ashok Upadhyay v. Awadhesh Pratap Singh, 2005 SCC OnLine CHH 158

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2005 SCC OnLine Chh 158 : 2005 Cg LT 120 : (2005) 2 CGLJ 314
In the High Court of Chhattisgarh*

(BEFORE V.K. SHRIVASTAVA, J.)
Ashok Upadhyay
Versus
Awadhesh Pratap Singh and Another
Miscellaneous Appeal No. 794 of 2001
Decided on June 22, 2005
ORDER
1. This appeal is directed against the order passed by 7th Additional District Judge,
Raipur, in Misc. Civil case No. 4 of 1999, whereby petition filed by the appellant for
grant of Probate under Section 276 of the Indian Succession Act, 1925 (for short, “the
Act”) has been dismissed.
2. Appellant filed a petition under Section 276 of the Act for grant of Probate on the
ground that Smt. Thakur Devi Bai executed a Will on 5-3-1990 in his favour
bequeathing her entire movable and immovable property. The Will has been duly
attested by witnesses and registered. Pursuant to the institution of the application for
grant of probate, the Probate Court invited objections from public at large.
Respondents filed objections whereby denied the execution of the Will on 5-3-1990 by
Smt Thakur Devi Bai in favour of the appellant Respondent No. 1 further submitted
that Smt. Thakur Devi executed a Will in his favour on 4-4-1990. Respondent No. 2
also raised a collateral
Page: 121
objection that the property described in the Will was not the property held by Smt.
Thakur Devi Bai and challenged the maintainability of the application. Both the parties
led oral and documentary evidence in support of their case. Learned Probate Court vide
impugned order dismissed the petition holding inter alia that the appellant has not
mentioned the amount of asset which are likely to come to his hand as required under
Section 276(1)(d) of the Act. Secondly for a part of the property petition is not
maintainable. Thirdly that the appellant has claimed Probate on a Will executed by late
Smt. Thakur Devi Bai, whereas respondent No. 1 & 2 claiming Will in their favour have
raised objection for grant of Probate in favour of appellant. Therefore, it cannot be
decided by the Probate Court as to which of the Will is the last will executed by late
Smt. Thakur Devi Bai and parties are free to get their rights decided by the Civil Court.
Undisputedly, the appellant in his application for grant of Probate did not furnish the
particulars of the immovable properties and its value though the testator bequeathed
all his movable & immovable property through her Will dated 5-3-1990.
3. Section 276 (1) of the Act reads as below:—

“276. Petition for probate. —(1) Application for probate or for letters of
administration, with the Will annexed, shall be made by a petitioner distinctly
written in English or in the language in ordinary use in proceedings before the Court
in which the application is made, with the Will or, in the cases mentioned in
sections 237, 238 and 239, a copy, draft, or statement of the contents thereof,
annexed and stating—
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(a) the time of the testator's death,

(b) that the writing annexed is his last Will and testament,
(c) that it was duly executed,
(d) the amount of assets which are likely to come to the petitioner's hands, and
(e) when the application is for probate, that the petitioner is the executor named
in the will.”
4. Appellant's contention is that non-mentioning of the said fact does not entail
dismissal of the application, at the most, learned lower Court could have asked the
appellant to furnish the said particulars. On the other hand, respondents contended
that according to Section 276 of the Act, it was necessary to furnish the amount of
assets, which is likely to come to the petitioner's side, and in absence of that, the
application was no application in the eye of law and was liable to be dismissed. It is a
settled law that justice cannot be denied on mere technicalities to person entitled for
the same. Probate is granted in accordance with Section 289 of the Act in the
prescribed form set forth in the schedule VI and the said form of probate is as below:
“Schedule VI
[See section 289]
Form of Probate
I,………………Judge of the District of ………………… (or Delegate appointed forgranting
probate or letters of administration in (here insert the limits of the Delegate's
jurisdiction), hereby make known that on the……………day of……………………in the
year……………the last Will of……………………late of………… a copy whereof is hereunto
annexed, was proved and registered before me, and that administration of the
property and credits of the said deceased, and in anyway concerning his Will was
granted to………………………… the executor in the said Will named, he having
undertaken to administer the same, and to make a full and true inventory of the
said property and credits and exhibit the same in this Court within six months from
the date of this grant or within such further time as the Court may, from time to
time, appoint, and also to render to this Court a true account of the said property
and credits within one year from the same date, or within such further time as the
Court may, from time to time appoint.”
Page: 122
5. It is manifest that the person in whose favour a probate is granted is bound, to

make a full and true inventory of the property and credits and to exhibit the same in
the Court, therefore, appellant cannot escape from furnishing details of immovable
property after grant of probate. The provisions contained in Section 276 of the Act are
procedural and also not mandatory, therefore, the Court had a duty cast on it to afford
an opportunity to the appellant for rectification of the defect and after affording
opportunity to obey, to pass suitable orders.
6. Further contention of the appellant is that of course Probate Court has no.
jurisdiction to decide title over any property, but is empowered to decide the issues as
to the last Will and its due and valid execution. On the other hand, objectors’
contention is that they have challenged the title as well as the validity of Will dated 5-
3-1990. Therefore, Probate Court has no jurisdiction to decide the petition filed by the
appellant under Section 276 of the Act for grant of probate.
7. Hon'ble Apex Court in Ishwardeo Narain Singh v. Smt. Kamta Devi1 has held
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that:—
“Succession Act (1925), S. 222—Jurisdiction of Probate Court.
The Court of Probate is only concerned with the question as to whether the
document put forward as the last will and testament of a deceased person was duly
executed and attested in accordance with law and whether at the time of such
execution the testator had sound disposing mind. The question whether a particular
bequest is good or bad is not within the purview of the Probate Court.”
8. In view of the law laid down above by Hon'ble the Apex Court; it is clear that
probate Court has nothing to do with the title of the property but has concerned with
the question as to whether the document put forward is the last Will and executed
according to law.
9. Learned counsel for the respondent relying on Phool Singh v. Smt. Kosa Bai2
contended that probate is not necessary for establishing right over any immovable
property, therefore, appellant has no right to pray for grant of probate. On the other
hand, appellant contended that although for establishing right over immovable
property in Civil Court, it is not compulsory, but neither the said decision nor the
provisions relating to probate bar obtaining probate if the property bequeathed
includes immovable property. In Phool Singh v. Smt. Koso’ Bai (supra), the Hon'ble
High Court has further decided that grant of probate establishes the Will from the
death of testator.
10. Sections 213 and 214 of the Act read as below:
“213. Right as executor or legatee when established. —(1) No right as
executor or legatee can be established in any Court of Justice, unless a Court of
competent jurisdiction in (India) has granted probate of the Will under which the
right is claimed, or has granted letters of administration with the Will or with a copy
of an authenticated copy of the Will annexed.
(2) This section shall not apply in the case of Wills made by Muhammadans (or
Indian Christians), and shall only apply—
(i) in the case of Wills made by any Hindu, Buddhist, Sikh or Jaina where such
Wills are of the classes specified in clauses (a) and (b) of section 57;
(ii) in the case of Wills made by any Parsi dying, after the commencement of the
Indian Succession (Amendment) Act, 1962 (16 of 1962), where such Wills are
made. within the local limits of. the civil jurisdiction.
214. Proof of representative title a condition precedent to recovery
through the Courts of debts from debtors of deceased persons. —(1) No
Court shall—
Page: 123
(a) pass a decree against a debtor of a deceased person for payment of his debt
to a person claiming on succession to be entitled to the effects of the
deceased person or. to any part thereof, or
(b) proceed, upon an application of a person claiming to be so entitled, to
execute against such a debtor a decree or order for the payment of his debt,
except on the production, by the person so claiming of—
(i) a probate or letters of administration evidencing the grant to him of
administration to the estate of the deceased, or
(ii) a certificate granted under section 31 or section 32 of the Administrator-
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General's Act, 1913 (3 of 1913), and having the debt mentioned therein, or
(iii) a succession certificate granted under Part X and having the debt
specified therein, or
(iv) a certificate granted under the Succession Certification Act, 1889 (7 of
1889), or
(v) a certificate granted under Bombay Regulation No. VIII of 1827, and, if
granted after the first day of May, 1889 having the debt specified therein.
(2) The word “debt” in sub-section (1) includes any debt except rent, revenue or
profits payable in respect of land used for agricultural purposes.”.
11. From reading both the provisions together it is clear that though for
establishing a right as enumerated in Section 213 of the Act, the Probate is not
necessary but for the properties mentioned in Section 214 of the Act, for
establishment of right Probate can be obtained, therefore, where testator has
bequeathed movable as well as immovable properties, Probate for both the properties
can be applied for and there is no restriction in granting the probate for both the
properties together.
12. The appeal is partly allowed, the impugned order passed by the Court below is
set aside and the case is remanded back with a direction to decide the application filed
by the appellant under Section 276 of the Indian Succession Act on merit in
accordance with law. Parties are directed to appear before the Court below on 20th
July, 2005. No notice for appearance of the parties will be required to be issued by the
Court.
13. Appeal partly allowed.
———
* Bilaspur
1.
AIR 1954 SC 280.
2.
MPJR 1990 Page No. 352.
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Ashok Upadhyay v. Awadhesh Pratap Singh, 2005 SCC OnLine CHH 158

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SCC Online Web Edition, © 2023 EBC Publishing Pvt. Ltd.

Page 1 Wednesday, June 14, 2023

In the High Court of Chhattisgarh*

3. Section 276 (1) of the Act reads as below:—

(a) the time of the testator's death,

5. It is manifest that the person in whose favour a probate is granted is bound, to

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