RAOJIBHAI CHHOTABHAI PATEL HEIRS OF DECD CHHOTABHAI LALLUBHAI Vs. VITHALBHAI PARSHOTTAMBHAI
LAWS(GJH)-1979-8-12
HIGH COURT OF GUJARAT
Decided on August 16,1979

RAOJIBHAI CHHOTABHAI PATEL Appellant
VERSUS
VITHALBHAI PARSHOTTAMBHAI Respondents

JUDGEMENT

M.K.SHAH - (1.) The original opponents who opposed the grant of probate to the respondent original petitioner have preferred this appeal aggrieved by the order dated 30th December 1974 passed by the learned second Joint Civil Judge Senior Division Nadiad in Miscellaneous Civil Application No. 7 of 1970 granting a probate with a copy of the will annexed in favour of the petitioner on usual terms. ... ... ... ... ... ... ..
(2.) Mr. R. N. Shah the learned Advocate appearing for the appellants raises three points in this appeal. His first submission is that the application for probate is not tenable at law because the will does not mention the name of the petitioner 3s the executor and as the petitioner is not the executor named in the will inspite of the statement made to that effect in the petition the statement is incorrect and does not amount to compliance with the provisions contained in sec. 276(1)(a) of the Indian Succession Act 1925 (the Act). Another limb of his argument that the application is not tenable at law is that there is also no compliance with the provisions contained in sec. 281 of the Act inasmuch as the petition for probate when filed was not verified by atleast one attesting witness as required under that section. ... ... ... ... ... ... ...
(3.) In order to appreciate he submission on the first point it would be necessary to have a look at the relevant provisions contained in secs. 276 281 and 282 of the Act. Section 276 so far as material for our purpose lays down that :- "276 (1) 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 secs. 237 238 and 239 a copy draft or statement of the contents thereof annexed and stating (a) x x x x x x (b) x x x x x x (c) x x x x x x (d) x x x x x x ( e) When the application is for probate that the petitioner is the executor named in the will. The provisions contained in sub-sections (2) and (3) of sec. 276 are not material for our purpose. "281 Where the application is for probate the petition shall also be verified by at least one of the witnesses to the will (when procurable) in the manner or to the effect following namely: x x x x x x x such. If any petition or declaration which is hereby required to be verified contains averment which the person making the verification knows or believes to be false person shall be deemed to have committed an offence under sec. 193 of the Indian Penal Code. ;


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