Krishna Appa Pedanekar and Ors. Vs Parvati @ Vasanti Shankar Pedanekar and Ors.

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 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
 APPELLATE SIDE

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 FIRST APPEAL NO. 1021 OF 2004

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 Krishna Appa Pedanekar & ors. ... Appellants
 V/s

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 Parvati @ Vasanti Shankar Pedanekar
 & ors. ... Respondents

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 Shri S.B. Shetye for the appellants.

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 Shri K.L. Parab for the respondents.

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 CORAM: P.V. KAKADE, J.

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 DATED: 15TH DEC., 2004.
P.C.:

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 1. The appellants - petitioners have preferred this
 appeal against the judgment and order passed by the
 Joint Civil Judge, S.D., Ratnagiri, on 8.8.1994
 dismissing the application for seeking probate in Misc.
 Application No. 40 of 1991.

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 2. I have heard the learned counsel for both parties.

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 Perused the record.

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 3. The miscellaneous application was filed under Sec.

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 276 of the Indian Succession Act for grant of probate of
 a will dated 1.4.1985 executed by deceased Appa Laxman
 Pedanekar in favour of the applicants. The learned
 Trial Judge adjudicated the application on merits and
 dismissed the same holding that applicants have proved
 that deceased Appa Laxman Pedanekar had executed a will
 on 1.4.1985. It was further held that the applicants
 have proved that deceased Appa Laxman Pedanekar had
 right to bequeth the suit property to them. However, it
 was held that applicants did not prove that
 non-applicant No.5 is not the legal heir of deceased
 Appa Pedanekar and finally it was held that the
 application was untenable for want of proper parties.
 Therefore, in other words, what was held in favour of
 the appellants that the will was legal and proper which
 was executed by Appa Laxman Pedanekar in proper manner
 and it was in favour of the applicants. It was further
 observed that deceased had right to bequeth the suit
 property to the applicants. Further, the reasoning
 adopted by the learned Trial Judge appears that he has
 taken the view that probate could not be granted because
 there was no executor appointed by the will.

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 In this connection, I must note that the learned Trial

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 Judge overlooked the basic legal position that the

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 probate is not required under Sec. 276 of the Indian
 Succession Act in the Mofussil area. In other words,
 the requirement of obtaining probate is compulsory if
 the probate is to be obtained regarding the will
 executed within the jurisdiction of Presidency town i.e.
 Bombay and three towns in the country. It was
 adjudicated finally by this Court in the case of
Bhagwansang Bharaji v/s Bechardas Harjivandas reported
in I.L.R. Vol. VI Bom. 73. It was observed that

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 there is no law in force in the Mofussil which obliges a
 person, claiming under a will, to obtain probate of the
 will, or otherwise establish his right as executor,
 administrator, or legatee, before he can sue in respect
 to any property which he claims under the will. In any
 suit or proceeding instituted by him, it is for the
 Court, in which the suit or proceeding is pending, to
 determine, for the purposes of such suit or proceeding,
 whether the will is genuine and valid, and confers upon
 the plaintiff or applicant the right which he claims.
 In other words, the provison to compulsory obtain the
 probate within the presidency towns is not applicable in
 the Mofussil of Bombay Presidency i.e. local area
 beyond the towns Calcutta, Madras and Bombay.

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 In view of this position, the learned Judge should have

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 proceeded with question of issuance of letter of
 administration under the provisions of the Indian
 Succession Act and the question of issuance of probate
 was in fact irrelevant. No doubt that the applicants
 moved for probate, obviously due to their ignorance of
 this legal position but it was the duty of the lower
 Court to convert the application for granting of probate
 into a letter of administration especially when it was
 established that the will was genuine and was issued in
 favour of the applicants and the deceased had right to
 bequeth his property in favour of the applicants.

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 4. Therefore, under the circumstances, the proper
 course, in my view, would be to remand the matter to the
 lower Court for re-adjudication in order to consider
 whether the applicants are entitled to letter of
 administration on the basis of the will on record. For
 that purpose, the applicants-appellants are at liberty
 to make proper amendment by way of alternative plea in
 the said application.

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 The appellants-applicants shall move the lower Court for

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 such amendment which would be granted by the lower
 Court.

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 The matter shall be adjudicated by the lower Court
 within three months from the date of receipt of the
 Court writ in this regard.

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 With these observations, the appeal stands disposed of

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 with no order as to costs.

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 Authenticated copy be supplied.

Krishna Appa Pedanekar and Ors. v. Parvati @ Vasanti Shankar Pedanekar and Ors.

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Krishna Appa Pedanekar and Ors. v. Parvati @ Vasanti Shankar Pedanekar and Ors.

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