- (1.) THIS is revocation application, moved by applicant Smt. Geeta Prashad, under Section 263 of Indian Succession Act, 1925, in the Testamentary Case filed by the Executor for grant of probate in re spect of the Will of Smt. Ram Kaur Prashad, which was granted on 29-04-1982.
(2.) HEARD learned counsel for the parties. Brief facts of the case are that as per the Testamentary Petition filed by the Executor I. L. Dass before Allahabad High Court in the year 1979, Smt. Ram Kaur Prashad W/o Late Dr. Baini Prashad ex ecuted a Will dated 13-11-1975 (Ext. A to tht petition) bequeathing her property which included her movable and immovable properties in Dehradun to her Daugh ter Nirmal Verma, Son Romesh Prasad, grand sons Arjun Prashad and Vijay Prashad. The Will was said to have been attested by the witnesses- Sri D. R Puri, Lt. Col. (Retired), R/o 34 Rajinder Nagar, Kaulagarh Road, Dehradun, and Sri Raj Kishore Badwar, R/o 52 A, New Con-naught Place Chakrata Road, Dehradun. Smt. Ram Kaur Prashad died at Dehradun on 30-11-1978, copy of her death certifi cate is annexed as Ext. B to the petition filed by Executor. From the record received from the Allahabad High Court it is clear that notices were issued to the Adminis trator General and other affected persons. Compliance as re aired under the Rules was also made. The notices were also is sued to Geeta Prashad W/o Romesh Prashad, who was represented by her counsel since September 1980 in the testamentary proceedings. Vide order dated 29-04-1982 probate was issued under Sec tion 276 of Indian Succession Act, 1925, by the Allahabad High Court in this case. The record further reveals that certain di rections as to apportionment of properties were issued by Allahabad High Court from time to time after issuance of the probate, one of which contained in order dated 03-12-1985. Dissatisfied by said order Smt. Geeta Prashad filed a Special Appeal No. 408 of 1998 before Allahabad High Court. Vide order dated 27-05- 1998, passed in said Special Appeal proceedings of the tes tamentary case were stayed. Revocation Application No. 63974 filed in the year 1996 by Smt. Geeta Prashad W/o Romesh Prashad before Allahabad High Court also stood stayed due to the stay order passed in the Special Appeal. After creation of State of Uttarakhand w. e. f. 09-11-2000, testamentary case was trans ferred to this Court under Section 35 of U. P Reorganisation Act, 2000. However, the stay order passed in the Special Appeal stood vacated only on 20th Novem ber 2007, when the Allahabad High Court dismissed the Special Appeal No. 408 of 1998, as not maintainable before it. In the revocation application, ap plicant Smt. Geeta Prashad has stated that Smt. Ram Kaur Prashad (Executant) was a house wife and had no income or property of her own. She inherited the property of her husband Dr. Baini Prashad, who died intestate. As such Ram Kaur Prashad had no authority to execute the Will of the entire property left by her husband Dr. Baini Prashad. At the most she could have made Will of only l/4"th share. It is further alleged in the revoca tion application that the probate has been obtained by the Executor concealing the material facts from the Court. It is also pleaded that only in March 1996 appli cant Geeta Prashad came to know that her father-in-law died intestate.
(3.) BEFORE further discussions it is per tinent to mention here that proceedings under Section 276 of Indian Succession Act, 1925, are summary in nature and its object is the certification of the genuine ness of the Will executed by the Executant. Determination of disputed shares in the properties and partition are not within the scope of such proceedings, which can be sought by filing civil suit before the competent civil court. Cases of Chiranjilal Shrilal Goenka Vs. Jasjit Singh and others, (1993) 2 Supreme Court Cases 507, and Hem Nolini Judah Vs. Isolyne Sarojbashini Base and others, AIR 1962 Supreme Court 1471, relied by the appli cant Geeta Prashad, itself corroborate said position of law. From the record it is apparent that Romesh Prashad son of the Executant was served with the notices and after his death Smt. Geeta Prashad W/o Romesh Prashad contested the testamentary pro ceedings before the Allahabad High Court. The record further reveals that she was contesting the proceedings since Septem ber 1980. Thereafter, the probate was granted on 29-04-1982. Now after almost 14 years of issuance of probate revocation application has been moved by applicant Geeta Prashad for revocation of the pro bate. __;