IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR BEFORE HON'BLE SHRI JUSTICE ACHAL KUMAR PALIWAL st ON THE 21 OF FEBRUARY, 2024 MISC. APPEAL No. 1690 of 2021 BETWEEN:-

AVINASH PATIDAR S/O SHRI NARAYAN PATIDAR, AGED ABOUT 37 YEARS, GANGA SADAN, POST MISROD BHOPAL MP (MADHYA PRADESH)

.....APPELLANT (BY SHRI KAPIL DUGGAL - ADVOCATE)

AND GENERAL PUBLIC NOT MENTION NOT MENTION (MADHYA PRADESH)

.....RESPONDENT (NONE)

This appeal coming on for order this day, the court passed the following:

ORDER

This miscellaneous appeal has been filed by the appellant under section

384 of Indian Succession Act against order dated 10.09.2020 passed in MJC(SUC) No.156/2018 and order dated 08.03.2021 passed in MJC No.240/2020 passed by 7th ADJ, Bhopal whereby appellant application for Probate of the Will under Section 376 of Indian Succession Act/Review Petition has been dismissed.

2. Learned counsel for the appellant, after referring to Kanwarjit Singh Dhillon Vs. Hardyal Singh Dhillon and others, reported in (2007) 11 SCC 357 and Chiranjilal Shrilal Goenka Vs. Jasjit Singh and Others, reported Signature Not Verified Signed by: SARSWATI in (1993) 2 SCC 507 and para -3 of impugned award, submits that learned trial Court has held that execution of Will is proved but it is proved that testator was competent to execute Will with respect to petrol pump. Learned counsel for the appellant submits that Probate Court is not required to decide the issue of competency of testator to execute Will with respect to any particular property. Probate Court is required to decide factum of execution of Will only. On above grounds, It is urged that appeal filed by appellant be allowed and impugned order be set aside.

3. I have heard learned counsel for the appellant and perused the record of the case.

4. Sole issue involved in the case is whether, Probate Court has erroneously dismissed the appellant's application under Section 376 of Indian Succession Act on the ground that appellant failed to prove that testator of Will, was not competent to execute Will with respect to petrol pump situated on survey No.268/2.

5. Perusal of para 13 of impugned order reveals that Probate Court has found that appellant has succeeded in establishing execution of Will as per provisions of Section 63 of Indian Succession Act but dismissed the application on the ground that appellant failed to prove that the Testator was owner of petrol pump and it was situated on disputed property.

6. With respect to issue involved in the case para 15 of Chiranjilal (supra) is relevant and the same is reproduced as under :

"15. In Inswardeo Narain Singh v. Smt. Kanta Devi & Ors., AIR 1954 SC 280 this court held that the court of probate is only concerned with the question as to whether the document put forward as the last will and testament of a deceased person was duly executed and Signature Not Verified Signed by: SARSWATI attested in accordance with law and whether at the time of such execution the testator had sound disposing mind. The question whether a particular bequest is good or bad is not within the purview of the Probate Court. Therefore the only issue in a probate proceeding relates to the genuineness and due execution of the Will and the court itself is under duty to determine it and preserve the preserve the original Will in its custody. The Succession Act is a self contained code in so far as the question of making an application for probate, grant or refusal of probate or an appeal carried against the decision of the probate court. This is clearly manifested in the fasecule of the provision of Act. The probate proceedings shall be conducted by the probate court in the manner prescribed in the Act and in no other ways. The grant of probate with a copy of the Will annexed establishes con-clusively as to the appointment of the executor and the valid execution of the will. Thus it does no more than establish the factum of the will and the legal character of the executor. Probate court does not decide any quest