Point of Law: The law is well settled that conscience of Court must be satisfied that Will in question was not only executed and attested in manner required under Act, 1925 but should also be found that said Will was product of free volition of executant who had voluntarily executed same after knowing and understanding contents of Will.

JUDGMENT :

1. This First Appeal is directed against the Judgment and order dated 16/04/2005 passed by the Civil Judge, Senior Division, Khamgaon in Probate Case No.7/1993. The petition for probate was preferred by respondent Nos.1 and 2, who are daughters, applying for probate in respect of Will dated 22/10/1991 executed by their father Chhotalal Patel, who died on 13/05/1992 at Khamgaon, whereunder various movable and immovable properties, as per Schedule-A, B and C, annexed to the probate petition, have been bequeathed in their favour.

2. According to respondent Nos.1 and 2, all the abovesaid movable and immovable properties were owned by their father as owner and the same were bequeathed in their favour by registered Will dated 22/10/1991. Therefore, they prayed for issuance of probate in their favour.

3. The said petition was resisted by the appellants.

They denied that their father personally owned any movable or immovable property either at Khamgaon or at Jalundh, Tq. Khambat, Dist. Khede in the State of Gujarat. According to them, properties were held by the deceased - father as Karta of Joint Hindu Family consisting of themselves along with others. The other properties acquired by the deceased - father were the result of the joint acquisition and joint labour of deceased, appellants and others. Some of the properties were also partitioned during their life time and the same was acted upon.

4. As far as Will is concerned, according to the appellants, no such Will was ever executed by their father as he had no right to execute any Will. Moreover, the deceased was incompetent to physically and mentally execute the Will. The said document is the result of fraud practised by respondent Nos.3 & 4. Therefore, they sought dismissal of the probate petition.

5. It appears from the record that respondent Nos.3 and 5 admitted the contents of probate petition and gave their no objection, if probate claimed by respondent Nos.1 and 2 is granted. It appears that during the pendency of the proceedings, respondent No.5 died and her legal representatives were brought on record. Out of them, respondent Nos.5-A filed his written statement (Exh.75) and supported the reply filed by the appellants herein.

6. On the basis of pleadings filed before the learned Trial Judge, the learned Trial Judge framed various issues on the point of ownership of the properties and execution of Will in question. The learned Trial Judge answered the issues pertaining to the Will and the nature of property in favour of respondent Nos.1 and 2 that is to say the learned Judge held that the properties in question were the self-acquired property of deceased-Chhotalal and that he bequeathed the same in favour of respondent Nos.1 and 2. Accordingly, learned Trial Judge allowed the probate petition and directed issuance of Probate Certificate after compliance of Section 291 of the Indian Succession Act, 1925 (Hereinafter referred to as “the Act”) and on payment of Court fees. This decision is challenged by the appellants by way of present First Appeal.

7. Before I enter into the controversy in respect of execution of Will in question, I may point out that the title or ownership of the deceased in respect of properties that is the subject matter of the Will could not have been gone into by the learned Trial Judge. The Hon'ble Apex Court in the case of Chiranjilal Shrilal Goenka (Deceased) through LRs Vrs. Jasjit Singh and others, reported in (1993) 2 SCC 507 ; 1993 AIR SCW 1439 has held that the grant of probate with a copy of 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 properties itself. It may also be noted that in the Judgment of Baban Rambhau Jagdale Vrs. Hanmant Rambhau Jagdale, reported in 2003 (1) Mh.L.J. 113, it is held that it is well settled law that it is not the duty of Probate Court to consider any issue as to the title of the t