- (1.) By this petition, the petitioner has assailed an order dated 25 th November 2009 whereby the learned trial court refused the petitioner to lead additional evidence to prove the Will dated 18th September 1998. It is submitted by the petitioner that the petitioner was entitled to the estate of the deceased on the basis of the Will left behind by the deceased. The petitioner was impleaded as legal heirs on the basis of the Will and the petitioner, therefore, has a right to prove the Will. The learned trial court observed that Will could not be a subject matter of the suit filed by the deceased/ plaintiff in whose place defendant no.3 was brought on record as an LR. Therefore, no additional evidence to prove the Will can be allowed.
(2.) It is submitted by the petitioner that no probate of the Will was required, therefore, he could lead evidence to prove the Will before the Civil Court. He relied upon Santosh Kakkar & Ors. v. Ram Prasad & Ors. 1998 I AD (Delhi) 938.
(3.) I consider that the contention of the petitioner is misconceived. The only court which has jurisdiction to adjudicate about the genuineness and validity of the Will is the Probate Court. The Probate Court has exclusive jurisdiction to decide about the Will and the Civil Court does not have jurisdiction to adjudicate about the genuineness of the Will. It is clear from the judgment of the Supreme Court in Binapani Kar Chowdhury v. Sri Satyabrata Basu & Anr. AIR 2006 SC 2263, wherein the Supreme Court observed as under: "4. Section 213 of the Indian Succession Act (`Act' for short) provides as to when the right of the executor or legatee is established. Sub-section (1) thereof provides that no right as executor or legatee can be established in any court 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 the Will annexed.) It is not in dispute that the said Section applies in the case of Wills made by a Hindu who is a resident of Calcutta. The trial court and the High Court have proceeded on the basis that having regard to section 213 of the Act, the suit cannot be decided unless the executor of the Will produces the probate. Section 213 clearly creates a bar to the establishment of any right under a Will by the executor or legatee unless probate or letters of administration of the Will have been obtained. This Court in Mrs. Hem Nolini Judah v. Mrs. Isolyne Sarojbashini Bose, AIR(1962) SC 1471, held as follows : "The words of S.213 are not restricted only to those cases where the claim is made by a person directly claiming as a legatee. The section does not say that no person can claim as a legatee or as an executor unless he obtains probate or letters of administration of the will under which he claims. What it says is that no right as an executor or legatee can be established in any Court of Justice, unless probate or letters of administration have been obtained of the will under which the right is claimed, and therefore, it is immaterial who wishes to establish the right as a legatee or an executor. Whosoever wishes to establish that right whether it be a legatee or an executor himself on somebody else who might find it necessary in order to establish his right to establish the right of some legatee or executor from whom he might have derived title, he cannot do so unless the will under which the right as a legatee or executor is claimed has resulted in the grant of a probate or letters of administration." 5. Therefore, where the right of either an executor or a legatee under a Will is in issue, such right can be established only where probate (where an executor has been appointed under the Will) or letters of administration (where no executor is appointed under a Will) have been granted by a competent court. Section 213 does not come in the way of a suit or action being instituted or presented by the executor or the legatee claiming under a Will. Section 213, however, bars a decree or final order being made in such suit or action which involves a, claim as an executor or a legatee, in the absence of a Probate or Letters of Administration in regard to such a will. Where the testator had himself filed a suit (seeking a declaration and consequential reliefs) and he dies during the pendency of the suit, the executor or legatee under his will, can come on record as the legal representative of the deceased plaintiff under Order 22 Rule 3 CPC and prosecute the suit. Section 213 does not come in the way of an executor or legatee being so substituted in place of the deceased plaintiff, even though at the stage of such substitution, probate or letters of administration has not been granted by a competent court".;