JUSTICE S.RAVINDRA BHAT

1. This judgment will dispose of a reference dated 19.04.2010 under Section 113 read with Order 46 Rule 1 of Code of Civil Procedure (hereafter referred to as “the CPC”) received from learned Additional Judge Shri Rajender Kumar Shastri which are in the following terms:

(1) Could a petition seeking probate of a will, be treated as an ordinary civil suit?

(2) Was it not contrary to law to pass a decree on a petition, in which court does not decide title or even rights of parties?

(3) If not, what type of civil suit, such a petition could be treated and how the court will decide as what court fee should be fixed and by which from the parties?

2. The brief facts of the case are that one Shri Harinder Singh Kochar (hereinafter referred as “the petitioner”) sought the grant of probate in respect of the estate of Late Shri Saran Singh Kochar, propounding a Will dated 30.08.2006. The proceedings were contested primarily by third respondent, Shri Jatinder Singh Kochar who had filed objections. The other respondents to the probate proceedings included the testator’s widow (Smt. Manmohan Kaur Kochar) and his daughters Smt. Ramandeep Kalra and Smt. Hardeep Kaur Sarna (Respondent Nos. 4 and 5). Respondents 6 to 8 were the husband and children of the said Hardeep Kaur Sarna, respectively. Hardeep Kaur Sarna was arrayed as Respondent No.5 and was represented by her husband Shri Satinder Singh (respondent No.6). At the time when petition was filed, the widow of Shri Saran Singh Kochar i.e. Manmohan Kaur (who was arrayed as second respondent) had indicated her No Objection by filing an affidavit in Court, to the grant of probate in respect of the Will. Likewise Smt. Ramandeep Kaur had also indicted her No Objection by filing an affidavit in Court.

3. The testator, had, in the Will (which was a registered one) mentioned about his assets in para 6; it comprised of two immovable properties and had description of bank accounts and stock and shares held by him. The first immovable property was House No.27, South Patel Nagar which had a built-up construction. The second immovable property was 7 kilas of land in Ganganagar, Rajasthan. The dispositions in the Will were to the effect that the South Patel Nagar property was to go to the widow i.e. Smt. Manmohan Kaur who was to hold it during her lifetime. The Will provided that in case she pre-deceased the testator or in another eventuality i.e. after her death the property was to be shared in such a manner that Jatinder Singh Kochar (third respondent) was entitled to exclusive ground floor rights and the remaining portions of the property, including terrace rights -and outhouse -were to be enjoyed by Harinder Singh Kochar. He was also conferred with the right to put up further constructions, on the said South Patel Nagar property. The property at Ganganagar was bequeathed jointly to the sons Jatinder Singh and Harinder Singh in equal shares. The testator also made dispositions in favour of wife and his daughters as far as the movable properties and securities were concerned.

4. Apparently during the pendency of the proceedings the testator's widow expired. On 23.05.2009 the Court was informed that the parties to the probate proceedings had compromised their disputes; an application under Order 23 Rule 3 CPC for recording the compromise was moved. The Court on that day took on record the said joint application and recorded statement of the petitioner (Harinder Singh Kochar), the objector (Jatinder Singh Kochar) Smt. Ramandeep Kalra and Satinder Singh (Respondent No.6 and attorney of Respondent No.5 as well as respondents 7 and 8). The said statement is in the following terms :

“We the above mentioned legal heirs of late Sh. S.S. Kochhar and Smt. Manmohan Kaur Kochhar have entered into a family settlement and by accepting the Wills of our parents and the compromise in writing is filed by way of application under Order 23 Rule 3 CPC which is ex. C-1. The affidavit of the p