HIGH COURT OF JAMMU AND KASHMIR AT JAMMU CIMA No. 116/2008 CMP No. 164/2008 Date of Decision: 20.11.2008 Thoru Ram Vs. Rattan Lal & Ors. Coram: Mr. Justice J.P.Singh, Judge. Appearing counsel: For Appellant : Mr. Vikram Sharma, Advocate. For Respondents : Mr. J.P.Sharma, Advocate for respondent No.1. i) Whether to be reported in Press/Journal/Media : Yes/No ii) Whether to be reported in Digest/Journal : Yes/No This Civil Miscellaneous Appeal under Section 6 of the Probate and Administration Act, 1977 (1920 A.D) is directed against learned Additional District Judge, Reasi’s judgment of March 27, 2008 granting Probate to respondent No.1 for Sh. Devi Ditta’s Will of March 10, 1997. 2 Calling in question the judgment impugned in the appeal, appellant’s learned Counsel Sh. Vikram Sharma submitted that the Additional District Judge had acted in violation of the provisions of Section 6 of the Act in granting Probate to respondent no.1 when Devi Ditta, the testator, had not appointed anyone as the executor of his Will. He submitted that appointment of an executor by a testator being the sine-qua-non for entertaining a petition to grant Probate of the Will, respondent no.1’s application seeking grant of Probate to him in the absence of his having been nominated as an executor by the testator’s appointment was liable to be rejected. Per contra, Sh. J.P.Sharma submitted that being the beneficiary under the Will, respondent no.1 had every right to seek Probate for testator’s last will. I have considered the submissions made at the Bar. The Probate and Administration Act, hereinafter referred to be as the “Act”, contemplates Probate of a Will to a person whom the execution of the last Will of a deceased, is, by the testator’s appointment confided. This appointment may in terms of Section 7 of the Act be express or implied by necessary implication. The phraseology employed in Section 6 of the Act may not contemplate grant of Probate to anyone other 3 than the executor(s) appointed by the Will. Section 6 of the Act, for ready reference, is reproduced hereunder:- “6. Probate only to appointed executor:- Probate can be granted only to an executor appointed by the Will.” That apart, Section 61 of the Act too indicates that to maintain an application for grant of Probate, an applicant, desirous of seeking such grant in his favour is required to specifically plead in his application that he is the executor, named as such, in the Will. In view of the above legal position flowing from the provisions of Sections 6 & 61 of the Act, it needs to be ascertained as to whether or not Devi Ditta, the testator, had named anyone to whom the execution of his last will had, by testator’s appointment, been confided. Perusal of the Will indicates that Devi Ditta, the father of the parties, owned an old house besides 56 kanals of land, 32 kanals whereof is in Bhagot Jagir whereas rest of the land measuring 24 kanals is in village Bhambla. It has been categorically recorded in the Will that Devi Ditta had devised all his property including land, after his death, amongst his six sons, in equal shares. Regarding his old house, it has been provided in the Will that it would go to his two sons namely Bishamber Dass and Bansi Lal. Besides permitting 4 Bishamber Dass to stay in the old house, it has been provided in the Will that as and when Bansi Lal would come from Delhi where he had gone to earn his living, for settlement in the Village, Bishamber Dass would help him in constructing a new house by spending half of the amount which may be needed for construction. The Will indicates that barring one of the shares in the land, rest stood distributed equally amongst his sons and this one share had to go to that son or sons who would spend on the last rites of the deceased. Perusal of the testamentary disposition of the testator, therefore, indicates that he had not confided in anyone for the execution of the Will. In the absence of any one having been appointed as executor in the Will, law may not permit grant of Probate for Devi Ditta’s Will. I, therefore, find sufficient force in appellant’s counsel’s contention that the learned Additional District Judge had erred in granting Probate of Devi Ditta’s Will to respondent no.1 when he had not been appointed as executor therefor. Learned Additional District Judge has thus erred in allowing respondent no.1’s application in granting Probate to him for Devi Ditta’s Will. 5 Learned Additional District Judge, Reasi appears to have further erred in reiterating in paragraph no. 25 of the judgment that Devi Ditta deceased had declared Rattan Lal respondent no.1 to be the sole owner of 12 kanals 10 marlas of land falling under Khasra no. 197 after his death. This reiteration of Rattan Lal’s having become sole owner of 12 kanals 10 marlas of land falling under Khasra no. 197 is wholly unwarranted besides being unjustified, in that, being a Court of limited jurisdiction, such a reiteration by the learned Additional District Judge was impermissible. Such a declaration may be granted only by a Civil Court seized of such dispute and that too after proper adjudication. I do not find any merit in respondent no.1’s counsel’s submission that in the absence of respondent’s nomination as executor in the Will, any of the beneficiaries could seek Probate therefor. This is so because no provision of law has been cited by learned counsel to support such a contention. For all what has been said above, I am of the view that learned Additional District Judge, Reasi’s order of March 27, 2008 reiterating respondent Rattan Lal to be the sole owner of 12 kanals 10 marlas of land falling in Khasra no. 197 and granting Probate of Devi Ditta’s Will 6 of March 10, 1997 in his favour, is without jurisdiction and illegal. Allowing this appeal, judgment dated 27th of March, 2008 of learned Additional District Judge, Reasi, is, accordingly, set aside. No order as to costs. ( J. P. Singh ) Judge Jammu 20.11.2008 Pawan Chopra