- (1.) AMITAVA Lala, J. An order of Probate Court, Jalaun, granting probate on 4th March, 2008, appointing an Administrator except a shop in question being subject matter of the pending suit of the appellant/. e. Suit No. 256 of 1990, is under challenge herein.
(2.) LEARNED Counsel appearing for the appellant contended before this Court that the Probate Court has no right to decide the title of the property. The Probate Court is only convinced about grant the probate. The order impugned granting probate seems to be decision of the title amongst the contesting parties. In favour of his argument, he has cited several judgments, which are to be considered one after another. In Ishwardeo Narain Singh v. Srimati Kamta Devi and others, 1953 A. L. J. 691 the Supreme Court held as follows : "the dismissal of the application for probate on the ground that the disposition in favour of Thakurji is void for uncertainty can on no principle be sup-ported and indeed learned Counsel appearing for the respondent has not. sought to do so. The Court of Probate is only concerned with the question as to whether the document put forward as the last will and treatment of a deceased person was duly executed and attested in accordance with law and whether at the time of such execution the testator had sound disposing mind. The question whether a particular bequest is good or bad is not within the purview of the Probate Court. It is surprising how this elementary principle of law was overlooked by both the Courts below. However, as learned Counsel appearing for the respondents has not sought to support this ground nothing further need be said on that" In Mrs. Hem Nolini Judah (since deceased) and after her legal representative Mrs. Marlean Wilkinson v. Mrs. Isolyne Saroj bashini Bose and others, AIR 1962 SC 1471 it has been held by three Judges Bench of the Supreme Court that Section 213 of Indian Succession Act, 1925, creates bar to the establishment of any right under will by an executor or legatee unless probate or letters of administration of the will have been obtained.
(3.) IT has been contended by the learned Counsel on the basis of such judgment that raising of proceedings of probate or letters of administration are not concerned with the title of property but merely with the due execution of the will. He has cited another judgment reported in (1985) 1 SCC 144, Smt. Rukmani Devi and others v. Narendra Lal Gupta, from which it appears that a probate granted by a competent Court is conclusive of the validity of such will unless it is revoked and no evidence can be admitted to impeach it except in a proceeding for revocation. A decision of the probate Court would be a judgment in rem, which would not only be taking on the parties to the proceeding but will be binding on the whole work. Therefore, the solemn duty is cast on the probate Court. By citing these judgments, the learned Counsel has again reiterated the same submission as before that at the time of granting probate the Court illegally passed an order with regard to title. On inquiry, we have come to know that the aforesaid suit, which has been mentioned under the order impugned granting probate, has been instituted by the appellant with regard to his possessory right, which according to him, flows from undivided property of one Hari Shankar (since deceased ). Therefore, when the will of Hari Shankar (since deceased) has been probated, it will affect the title of property of the appellant not only in respect of shop but where from the right accrued by him in respect of undivided property. We are of the view that the appellant has proceeded in a wrong premises. The order impugned does not say that it will interfere with the title dispute, if any, of the appellant in the pending suit being Suit No. 256 of 1990. On the other hand, the order granting probate said that the administrator, which is appointed therein directed to refrain from interfering with the property under question in the suit. Therefore, the Court never wanted to interfere with the disputed title of the appellant, if any, by virtue of order for grant of probate.;