ASHWANI KUMAR MISHRA,J. - (1.) This appeal is preferred under section 229 of the Indian Succession Act read with section 96 of Civil Procedure Code against an order passed by the Additional District Judge, Court No. 7, Kanpur Nagar, whereby the appellants' application filed for issuance of probate stands rejected.
(2.) According to appellants, a will was executed on 8.10.2008 by late Nagendra Jain, which was his last will. By the will certain properties situated at Kanpur was bequeath upon the appellants. The testator died on 18.2.2009. An application for grant of probate accordingly was filed. The defendants-respondents, who are the wife and daughters of testator, entered appearance and have supported the plea setup by the appellants for grant of probate. One of the daughters and wife of deceased testator have also appeared personally before the Court, and their statements have been recorded, as is indicated from the proceedings of court below dated 24.1.2017. Power of Attorney by the other daughter was also issued and statement on her behalf was also made. The court below, however, has rejected the application on the ground that there exists no justification for issuance of probate for the reasons set out in the application. In para 5 of the probate case filed before the court below, it was stated that grant of probate is required for securing better title over the property in question, which has devolved upon the appellants pursuant to will. The court below, however, has taken the view that possessing of better title would not be a sufficient ground to grant probate to the appellants. Justification for issuance of probate apparently is thus doubted by the court below.
(3.) Learned counsel for the appellants submits that being a beneficiary of will, probate is necessary for perfecting their title over the property in question and rejection of application for grant of probate is misconceived. Reliance is placed upon a Division Bench judgement of this Court in Ashish Kumar Pandey v. Bajrang Bali Pandey, reported in 2017 (5) ADJ 45 (DB) .;