The main legal point established is that the Probate Court's jurisdiction is limited to deciding the last Will's due and valid execution, not the title of the property, and that the provisions of Section 276 of the Indian Succession Act are procedural and not mandatory.

1. This appeal is directed against the order passed by 7th Additional District Judge, Raipur, in Misc. Civil case No.4 of 1999, whereby petition filed by the appellant for grant of Probate under Section 276 of the Indian Succession Act 1925 (For short, "the Act") has been dismissed.

2. Appellant filed a petition under Section 276 of the Act for grant of Probate on the ground that Smt. Thakur Devi Bai executed a Will on 05-031990 in his favour bequeathing her entire movable and immovable property.

The Will has been duly attested by witnesses and registered. Pursuant to the institution of the application for grant of probate the Probate Court invited objections from public at large. Respondents filed objections whereby denied the execution of the Will on 05-03-1990 by Smt. Thakur Devi Bai in favour of the appellant. Respondent No.1 further submitted that Smt. Thakur Devi Bai executed a Will in his favour on 04-04-1990. Respondent No.2 also raised a collateral objection that the property described in the Will was not the property held by Smt. Thakur Devi Bai and challenged the maintainability of the application. Both the parties led oral and documentary evidence in support of their case. Learned Probate Court vide impugned order dismissed the petition holding inter alia that the appellant has not mentioned the amount of assets which are likely to come to his hand as required under Section 276(1)(d) of the Act. Secondly for a part of the property petition is not maintainable. Thirdly that the appellant has claimed Probate on a Will executed by late Smt. Thakur Devi Bai. whereas respondent No.1 & 2 claiming Will in their favour have raised objection for grant of Probate in favour of appellant. Therefore it cannot be decided by the Probate Court as to which of the Will is the last will executed by late Smt. Thakur Devi Bai and the parties are free to get their rights decided by the Civil Court.

3. Undisputedly, the appellant in his application for grant of Probate did not furnish the particulars of the immovable properties and its value though the testator bequeathed all his movable & immovable property through her Will dated 05-03-1990.

4. Section 276 (I) of the Act reads as below -

"276. Petition for probate - (1) Application for probate or for letters of administration with the Will annexed, shall be made by a petition distinctly written in English or in the language in ordinary use in proceedings before the Court in which the application is made, with the will or, in the cases mentioned in sections 237, 238 and 239, a copy, draft, or statement of the contents thereof, annexed and stating-

(a) the time of the testator's death,

(b) that the writing annexed is his last Will and testament,

(e) that it was duly executed,

(d) the amount of assets which are likely to come to the petitioner's hands and

(e) when the application is for probate, that the petitioner is the executor named in the will.

5. Appellant's contention is that non-mentioning of the said fact does not entail dismissal of the application, at the most learned lower Court could have asked the appellant to furnish the said particulars. On the other hand, respondents contended that according to Section 276 of the Act, it was necessary to furnish the amount of assets, which is likely to come to the petitioner's side, and in absence of that, the application was no application in the eye of law and was liable to be dismissed. It is a settled law that justice cannot be denied on mere technicalities to person entitled for the same. Probate is granted in accordance with Section 289 of the Act in the prescribed form set forth in the schedule VI and the said form of probate is as below:

"SCHEDULE VI

(See section 289)

Form of probate

I,……..Judge of the District of……….(or delegate appointed for granting probate or letters of administration in (here insert the limits of the Delegate's jurisdiction), hereby make known that on the….. day of.......In the Year...... the last Will