Shri Ashok Shankarrao Katke v. Shri Suresh S. Katke & Anr.

Mr. Anirudha Valsangkar i/by Shri Pankaj J. Das for the Petitioner. --- CORAM : V.C. DAGA, J. CORAM : V.C. DAGA, J. CORAM : V.C. DAGA, J. DATED : 29th JULY, 2008. DATED : 29th JULY, 2008. DATED : 29th JULY, 2008. P.C.: P.C.: P.C.: . This petition is directed against the order dated

18.04.2008, whereby the probate application was converted in the suit for being tried as regular suit.

The learned counsel appearing for the petitioner submits that if it is tried as a regular suit the possibility of raising dispute of title cannot be ruled out and then trial court may be forced to try the question of title and investigation thereof.

The apprehension cannot be said to be ill- founded. It is, therefore, necessary to clarify that the trial court while trying the probate suit- proceedings, shall bear in mind the law laid down by the Apex Court in Ishwardeo Narain Singh vs. Smt. Kamta Devi (AIR 1954 SC Ishwardeo Narain Singh vs. Smt. Kamta Devi (AIR 1954 SC Ishwardeo Narain Singh vs. Smt. Kamta Devi (AIR 1954 SC -: 2 :- 280). In that case the Apex Court held that the court of 280). 280). probate is only concerned with the question as to whether the document put forward as the last will and testament of a deceased person was duly executed and attested in accordance with law and whether at the time of such execution the testator had sound disposing mind. The question whether a particular bequest is good or bad is not within the purview of the probate court. Therefore, the only issue in a probate proceedings relates to the genuineness and due execution of the will and the court itself is under duty to determine it and preserve the original will in its custody. The Succession Act is a self- contained code insofar as the question of making an application for probate, grant or refusal of probate or an appeal carried against the decision of the probate court. This is clearly manifested in the fascicle of the provisions of the Act. The probate proceedings shall be conducted by the probate court in the manner prescribed in the Act and in no other ways. The grant of probate with a copy of the will annexed establishes conclusively as to the appointment of the executor and the valid execution of the will. Thus, it does no more than establish the factum of the will and the legal character of the executor. Probate court does not decide any question of title or of the existence of the property itself. -: 3 :- . The above view is affirmed in another judgment in hrough Chiranjilal Shrilal Goenka (deceased) through the case of Chiranjilal Shrilal Goenka (deceased) hrough Chiranjilal Shrilal Goenka (deceased)