The High Court dismissed an appeal challenging the rejection of a probate application. The trial court held the application premature because the Will stipulated the testator's wives must survive before the grant, and no proof of their death was on record.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF JUDICATURE AT PATNA
Miscellaneous Appeal No.1017 of 2017
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... ... Appellant/s Versus
... ... Respondent/s ====================================================== Appearance : For the Appellant/s : Mr.Sharda Nand Mishra, Advocate For the Respondent/s : None. ====================================================== CORAM: HONOURABLE MR. JUSTICE RAJIV ROY ORAL JUDGMENT Date : 01-12-2022
I.A. No. 01 of 2019.
The aforesaid Interlocutory Application has been
preferred to inform the Court that original appellant, Bhola Raut died on 29.6.2003 and his heirs are already on record as appellants having filed the appeal.
Patna High Court MA No.1017 of 2017 dt.01-12-2022 2/5
Accordingly, prayer has been made to keep the
said facts on record.
In the particular facts and circumstances, the I.A. No. 01 of 2019 is hereby allowed.
M.A. No. 1017 of 2017:
Heard Mr. Sharda Nand Mishra, learned counsel
for the appellants.
7 Dhurs joint dwelling house standing near Khesra
167 appertaining to Khata No. 11 situated in
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Mohalla-Gopalpur, Balua Chauk, P.S.-Motihari Town, Dist. East Champaran bounded and butted as North:- Ramdeo lal, South-Deonandan Ram, East-District Board Road, West-Braj Bihari Singh (1/3rd share).
"9. I do not find any pleading made by the applicant that his two wives are alive or dead. No death certificate of two wives of the testator is on record to show that they are dead. Under the aforesaid facts and circumstances discussed above, this Court find that the application filed by the application is prematured and the application is not maintainable as the applicant has got no cause of action at this stage. The applicant is directed to file application for probating the deed after the death of his two wives of testator, so that the intention of the maker of the
Patna High Court MA No.1017 of 2017 dt.01-12-2022
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deed can be protected. If is paramount duty of the Court to take care intention of the maker of the deed as the maker of the Will is not present in the Court when the will is filed in the Court for grant of probate. Under the aforesaid facts and circumstances stated above this Court find that the application filed by the applicant is not maintainable and the same is hereby dismissed.
10. So far as decision of other issues are concerned, this court has already observed that the application filed by the applicant is prematured and the applicant will have cause of action to file the case for grant of probate after death of two wives of the testator. So when the next application will be filed the Court will decide the genuineness of the Will.
11. In result, the application filed by the applicant for grant of probate is hereby dismissed on contest."
appellant although tried to challenge the order passed by the learned Court, he failed to provide answer on the fact whether both the wives of Testator, Ram Chandra Prasad are dead or alive and in the event of they being alive, whether the course undertaken was premature or not.
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appellants herein is/are premature and thus rejected the same.
and the same is accordingly dismissed.
(Rajiv Roy, J)
Ravi/Ajay-
| AFR/NAFR | NAFR |
|---|---|
| CAV DATE | NA |
| Uploading Date | 07.12.2022 |
| Transmission Date | NA |
2 issues framed by the court
Whether the appeal against the rejection of a probate application is maintainable when the pre-requisite condition of the testator's wives' death has not been established.
Whether the court below was correct in holding that the grant of probate was premature as per the terms of the Will.
Shambhu Prasad
Mohan Prasad
Rameshwar Prasad
Chandra Kali Devi
Rita Kumari
Geeta Kumari
Rajiv Roy
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
