Decided on June 22,2005

Ashok Upadhyay Appellant
Awadesh Pratap Singh Respondents


- (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 05-03- 1996 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 05-03-1990 by Smt. Thakur Devi Bai in favour . of the appellant. Respondent No.1 further submitted that Smt. Thakur Devi Bai executed a Will in his favour on 04-04-1990. Respondent No.2 also raised a collateral 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 assets 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 the 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 05-03-1990.
(3.) SECTION 276 (1) of the Act reads as below - "276. Petition for probate - (7) Application for probate or for letters of administration, with the Will annexed, shall be made by a petition 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 - (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. ;

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