JUDGMENT :

NIKHIL S. KARIEL, J.

1. Heard learned Advocate Mr. Jamshed Kavina on behalf of the appellants.

2. By way of the present appeal, the appellants challenge judgment and order passed by the learned Civil Judge, Junior Division, Halvad, in probate application being Civil Misc. Application No. 3 of 1999, dated 31.07.2002, whereby the learned Civil Court had rejected the probate application.

3. Learned Advocate Mr. Jamshed Kavina for the appellants would submit that the impugned judgment and order requires interference, more particularly since the learned Civil Court had completely misdirected itself. Learned Advocate Mr. Kavina, at the outset, would draw the attention of this Court to the probate application and would submit that the cause title of the probate application would show the applicants No. 1 to 3 had preferred the probate application through applicant No. 4-power of attorney holder Smt. Jyotiben. Learned Advocate would thereafter draw the attention of this Court to the prayer sought for in the probate application, which would show that the probate with regard to the properties mentioned in a Will dated 02.05.1991 of deceased Muktaben Acharya was requested to be granted in favour of the applicants of the probate application. Learned Advocate would submit that a perusal of the cause title and prayer clause making it abundantly clear that the applicants-appellants herein had preferred the probate application through their power of attorney and whereas the prayer clause made it specifically clear that the probate was to be granted in favour of the applicants. Learned Advocate would submit that inspite of the same, one of the considerations on which the probate application had been rejected by the learned Civil Court was that in some of the exhibits with the probate application, the power of attorney appears to have stated that probate may be issued in her favour.

4. Learned Advocate Mr. Kavina would also draw the attention of this Court to the second consideration which weighed with the learned Civil Court was that the applicants-appellants herein did not produce any material to show that the properties of which probate was sought for, were of the ownership of the testator or not. Learned Advocate in this regard would rely upon the observations of the Hon'ble Apex Court in case of Pasupati Nath Das (Dead) vs. Chanchal Kumar Das (Dead) by legal Representatives and Others, (2018) 18 SCC 547. Learned Advocate would submit that the Hon'ble Apex Court has in the above judgment observed that while examining an application for grant of probate in a probate proceedings, the scope of the matter is primarily and principally regarding the genuineness of the Will in question and whereas a question of title cannot be gone into at that stage. Learned Advocate relying upon the law laid down by the Hon'ble Apex Court has requested this Court to set aside the impugned decision passed by the learned Civil Court.

5. Heard learned Advocate Mr. Kavina and perused the record and proceedings.

6. The following questions arise for consideration of this Court:

(i) Whether the learned Civil Court had erred in not granting probate in favour of the applicants with regard to the properties as mentioned in the probate application.

(ii) Whether the learned Civil Court ought to have gone into the aspect of title in an application for grant of probate.

(iii) What would be the final order.

6.1 My answers to the issues raised hereinabove are as follows:

(i) In Affirmative.

(ii) In Negative.

(iii) As per final order.

7. Since the above issues are co-relatable, the reasons for arriving at the conclusion would be discussed jointly herein-below:

8. Issue Nos. 1 and 2: It appears that the probate application was filed by the applicants-appellants herein with regard to the last Will and testament of deceased Muktaben Acharya. It would further appear that no one had objected to grant of the probate, rather some of the legal heirs of late Muktaben Acharya had tendered affi