Probate petition cannot be rejected due to pending subsequent civil suit challenging will's validity; proceedings must be consolidated for joint trial by District Judge.

JUDGMENT :

SANDEEP JAIN, J.

1. The instant appeal has been filed by the appellants under Section 299 of the Indian Succession Act, 1925 against the impugned judgment and order dated 21.07.2025 passed by the court of District Judge, Firozabad in Misc. Probate Petition No.2 of 2023 (Amit Gupta and another vs. Smt. Kalpana Gupta and others), whereby the petition seeking probate of registered Will dated 31.03.2022 executed by Indra Prakash Gupta has been rejected on the ground that regarding the same Will, Original Suit No.369 of 2025 (Dinesh Kumar Gupta and others vs. Amit Gupta and others) is pending in the court of Civil Judge (Senior Division), Firozabad, in which the issue will be decided.

2. Factual matrix is that the appellants filed Misc. Probate Case No.2 of 2023 (Amit Gupta and another vs. Smt. Kalpana Gupta and others) with the averments that Indra Prakash Gupta was the owner in possession of the disputed property regarding which, he executed a Will on 31.03.2022 in favour of the appellants, which was registered on 01.04.2022, who subsequently died on 12.10.2022 and as such, on the basis of Will, the appellants are the owner in possession of the disputed property. With these averments, it was prayed that the probate regarding the above Will be granted in favour of the appellants.

3. From the perusal of the record of the lower court, it is evident that initially, the contesting respondent no.1 Dinesh Chandra Gupta raised no objection regarding the grant of probate in favour of the appellants but subsequently, the contesting respondents no.1 & 2 Dinesh Chandra Gupta and Dilip Kumar Gupta filed their objection to the probate petition on the ground that the testator Indra Prakash Gupta was suffering from cancer and was not in a fit mental condition to execute a Will. The execution of the Will was disputed by the contesting respondents.

4. It is apparent that the respondent nos.3, 4, 5, 6 and 7, who are the married sisters and brother of the contesting respondents did not challenge the grant of probate to the appellants.

5. It is also apparent that subsequently, the contesting respondent nos.1 and 2 moved an application before the lower court that they have also filed an Original Suit No.369 of 2025 (Dinesh Kumar Gupta and others vs. Amit Gupta and others), for the cancellation of the alleged Will on the basis of which probate was claimed by the appellants. In the above suit, the contesting respondents averred that the alleged Will of Indra Prakash Gupta, which was executed on 31.03.2022 and registered on 01.04.2022, was a forged and fabricated document, which was never executed by Indra Prakash Gupta, who was suffering from serious illness and was not in a fit mental condition to execute the Will. The contesting respondents claimed that the above registered Will be cancelled by decree of this Court and also the disputed property be partitioned and they each be granted their 1/7th share in the disputed property and accordingly, a preliminary decree of partition be prepared. It was also claimed that on the basis of preliminary decree subsequently, a final decree be also prepared by which the disputed property be divided by metes and bounds and during the pendency of the suit, the defendants be permanently restrained from interfering in the peaceful possession of the plaintiffs and from alienating it to third party.

6. The lower court by impugned order dated 21.07.2025 has concluded that the probate petition has been filed reg