probate court has no jurisdiction to consider any issue as to title of testator

Citation

CDJ 2011 MHC 3698

P.Dhanalakshmi vs Devikarani @ Devaki & others

Head note

Original Side Rules - Order XXXVI Rule 1 - Indian Evidence Act - Section 68 - Letters Patent - Clause 15 - Benami Transactions (Prohibition) Act, 1988 - Section 4 - Hindu Succession Act - Section 14 - Limitation Act - Section 65(b) - Case of Appellant is that deceased executed his last Will and testament bequeathing all his self acquired properties infavour of Appellant and the Respondents by cancelling the earlier Will and the same was registered - Appellant-Plaintiff being the executor of Will filed petition for grant of probate - order of probate granted - second Respondent filed application for setting aside the order of grant of probate and set aside by an order - Second Defendant filed suit stating that the property described in the "B" schedule of the Will belonged to wife of deceased - By the Judgment, trial Court dismissed suit filed by 2nd Defendant - learned single Judge held that execution of Will proved as per the provisions of Sec.68 of Evidence Act and u/s 4 of Benami Act, testator did not have any right in "B" schedule property to the Will and testator himself was entitled to bequeath only 1/10th share in "B" schedule property - learned single Judge dismissed the suit as against "B" schedule property to Will - Being aggrieved by the dismissal of the suit as against "B" schedule property to Will, Appellant filed appeal - probate of the Will granted by the High Court would be taken into consideration by the Civil Court while deciding the suit for title - learned single Judge fell in error in going to the question of title and refusing to grant probate in respect of "B" schedule property to Will, Judgment of learned single Judge cannot be sustained and appeal is allowed.
Paras (4, 5, 7, 10 & 26).

Cases Referred:
1. AIR 1954 SC 280 [Ishwardeo Narain Singh v. Smt kamta Devi]
2. (1993) 2 SCC 507 [Chiranjilal Shrilal Goenka (deceased) through LRs. v. Jasjit Singh and others]
3. 2008 (1) CTC 80 [Kanwarjit Singh Dhillon v. Hardyal Singh Dhillon and others].

Comparative Citations:
2011 (3) LW 633, 2011 (4) CTC 593

#will

#probate

#jurisdiction

#title