JUDGMENT - OKA ABHAY S., J.: -

On July, 27th and 29th July, 2004 this appeal was heard finally. The order impugned in the appeal is an order rejecting an application for Probate filed by the appellants. Considering the facts and circumstances of the case and in view of the case made out in the Civil Application No. 1437 of 2002, this appeal was taken up for final hearing out of turn.

2.The appellants applied for grant of Probate in respect of the alleged last Will dated 29th April, 1998 of late Dr. (Miss) Indu Shankarrao Patwardhan. The Will is a registered Will. The application under section 276 of the Indian Succession Act, 1925 (hereinafter referred to as "the said Act") was filed by the appellants claiming to be the Executors appointed under the said Will. The Testator died on 8th February, 1999. It is stated in the application that the only real brother of testator passed away 40 years ago and the said brother is survived by his widow Mrs. Laila Parwardhan, his sons Shri Pranay Patwardhan and Pratik Patwardhan and a daughter Mrs. Pravasini Sawhney. The respondents who were impleaded as opponents in the application are the alleged beneficiaries under the Will alongwith the appellant Nos. 4 and 5. It appears from the application that the deceased left behind large and valuable moveable and immoveable properties. The respondents filed a pursis stating therein that they had no objection if the Probate was granted.

3.The learned trial Judge directed that a citation be published in a Newspaper which was published in Daily Prabhat. Citation was not issued to the legal representatives of the deceased brother of the Testator. The appellants examined on oath the appellant No. 5, the alleged attesting witnesses and a Medical Practitioner.

4.The learned trial Judge by his judgment and order dated 29th July, 2002 rejected the application for Probate. The learned trial Judge rejected the application on the ground that (i) the averments in the application were vague, (ii) averments in the applicant were not proved as required by Order VI, Rule 2 of the Code of Civil Procedure, 1908 (iii) the Schedule of the property annexed to the application is not signed by the Advocate for the appellant, (iv) the description of the property mentioned in the Will and the description of the property mentioned in the Schedule was not identical, (v) it was not proved that the testator was the owner of the property mentioned in the Will, (vi) relatives of the deceased Testator who were named in the application were not impleaded as parties, (vii) the death certificate of parents of the deceased testator were not filed on record and (vii) the contents of the Will were not proved.

5.The submission of the learned Counsel Mrs. Agarwal for the appellant is that the execution of the Will was duly proved after a citation was published in a Newspaper. No one had filed a caveat in the proceedings and the Court did not receive any objection on the basis of publication of the citation. She submitted that the application was supported by the respondents and therefore, the same should have been allowed. She pointed out that a Probate Court cannot decide the issue of title. It was not necessary to prove that the deceased was the owner of the properties mentioned in the Will. The learned Counsel for the respondent supported the appellant.

6.I have considered the rival submissions. The trial Court has found fault with the appellants on the ground that the title or ownership of the deceased in respect of the property subject-matter of the Will is not established. The Apex Court in a judgment reported in 1993(2) S.C.C. 507 (Chiranjilal Shrilal Goenka since deceased through L.Rs. v. Jasjit Singh others)1, held that the grant of Probate with will annexed establishes conclusively as to the appointment of executor and the valid execution of the Will. The Probate Court does not decide any question of title or of existence of the property itself. This Court in a judgment reported i

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