Allowed

Kaidar Nath and Ors. v. Amar Nath and Ors.

Rajasthan HC22 Feb 2013CMA/207/2013

Case brief

AI extract

What is this about?

In an appeal against the dismissal of a probate application, the High Court held that while probate may not be mandatory under Section 57, the Court retains jurisdiction under Section 276 to verify the Will's validity and detect suspicious circumstances. The impugned order was set aside and the matter remanded for a merits-based hearing.

What did the court decide?

The impugned order dated 13.08.2012 is set aside; the matter is remanded to the trial court to hear applicants and decide afresh on merits.

Kaidar Nath and Ors. Vs Amar Nath and Ors. — Succession and Inheritance | Rajasthan HC (2013)

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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

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: J U D G M E N T :

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S.B. CIVIL MISC. APPEAL NO.207/2013

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Kaidar Nath & Ors. Vs. Amarnath & Ors.

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Date of Order

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^nd February, 2013

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PRESENT

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HON'BLE MR. JUSTICE ARUN BHANSALI

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Mr. Mahesh Joshi, for the appellants.

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BY THE COURT:

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Heard learned counsel for the appellants.

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The appellants-applicants filed an application before the Court of Additional District Judge, Phalodi ('the trial court') under Section 276 of the Indian Succession Act, 1925 ('the Act') seeking probate of the Will dated 21.05.2003 executed by one V.N. Agarwal, who expired on 04.05.2006. The citation of the said application was published in newspaper. No one appeared before the trial court to oppose the grant of probate. The propounder of the Will i.e. the applicants examined three witnesses and exhibited five documents. However, the trial court after hearing the applicant, noticed the judgments of this Court in Sultan Singh Vs. Brajraj Singh : 1987 (1) WLC (Raj.) 368 and Mukund Singh Bihari Sharma Vs. Satyanarain : 2007 (2) DNJ (Raj.) 585, observed that it is not necessary to obtain probate in the State of Rajasthan in view of the provisions of Section 57 of the Act and went on to reject the application filed

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by the appellants-applicants seeking probate of the Will dated 21.05.2003.

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I have heard learned counsel for the appellants.

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As the trial court has rejected the application only on the basis of its understanding of implication of judgments of this Court and as none appeared to oppose the grant of probate before the trial court, no useful purpose would be served in issuing notices.

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The approach of the trial court is apparently not legal. The legal position that under Section 57 of the Act probate is not required to be obtained in the State of Rajasthan does not create a bar under the said provision against instituting a proceeding before a Court of competent jurisdiction seeking probate of a Will. Once the propounder of the Will, in his discretion, files an application under Section 276 of the Act, seeking probate of a Will, it is well within the jurisdiction of the Court to decide the probate proceedings, which requires the Court to decide whether the Will is the last Will of the deceased and whether the same was surrounded by suspicious circumstances, if any.

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In that view of the matter, the order impugned dated 13.08.2012 passed by the trial court is set aside and the matter is remanded back to the said court to hear the applicants and decide the matter afresh on merits.

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The appeal is allowed with the above directions. No costs.

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(ARUN BHANSALI), J.

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A.K.Chouhan/- 78

Kaidar Nath and Ors. v. Amar Nath and Ors.

Case brief

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Kaidar Nath and Ors. v. Amar Nath and Ors.

Case brief

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