SIRINBAI D DARUWALA MRS Vs. EDALJI DHANJISHA ANKLESHARIA DR

JUDGEMENT

(1.) The question which is involved in this matter is whether the learned trial Judge of the 9th City Civil Court Ahmedabad was justified in rejecting the appellants prayer to number the petition for probate filed by the respondent as a suit and to treat the same as such under rule 201 of Ahmedabad City Civil Rules. The order which is attacked in this matter is passed by the learned Judge in Civil Misc. Application No. 176/72 of his file and is sought to be challenged in this appeal.

(2.) Shri Mankad the learned advocate of the respondent has however raised a preliminary objection to this appeal by contending that the order against which the appellant has made the grievance is not appealable and hence this appeal is not competent.

(3.) Short facts of the case are that the respondent has filed an application for probate in the City Civil Court Ahmedabad under sec. 276 of the Indian Succession Act. The probate which is sought is with regard to the will sail to have been executed by one deceased named Mrs. Tehmine Jamshedji Bhajiwala of Ahmedabad. The respondent who has filed this application for probate is one of the brothers of the deceased. The application for probate was filed on 4th April 1972 and it showed the names of next-of-kins of the deceased according to the law of Parsi Intestate Succession. The court after receiving this application issued notices in accordance with law. One such notice was served on the appellant who is the sister of the deceased. The appellant filed her objections to the application of probate on 6-12-72 as found at Ex. 29. By these objections she contended that the will which was propounded by the respondent was not executed by the deceased in sound disposing state of mind.