Bom HC | Not open to Probate Court to exceed its jurisdiction by enquiring into issues of title in probate proceedings

Bombay High Court: Sandeep K. Shinde, J. examined the scope of jurisdiction to be exercised by the Probate Court, and allowed an appeal filed against the order of the Probate Court whereby the appellant’s application under Section 276 of the Indian Succession Act for probate of will of her deceased husband was rejected.

Aggrieved by the said rejection, the appellant preferred the present first appeal. T.S. Ingale, counsel for the appellant submitted that in the proceedings for grant of probate with a will annexed, the Court exercising testamentary jurisdiction is not concerned with title to the property.

Having considered the facts of the case and the settled law as regards the scope of jurisdiction of the Probate Court, the High Court was of the view: “the learned Judge while deciding the application for probate has exceeded his jurisdiction by enquiring into the issues of title in the probate proceedings. The learned Judge while deciding the application for probate ought not to have made enquiry about the  competency of the deceased to bequeath the pensionary benefits to the appellant and ought to have only enquired into, whether the appellant has proved execution of the will  and the deceased was in sound state of mind at the time of executing the will.”

It was also stated that the appellant had proved the genuineness of the will and its due execution. In such circumstances, the Court was of the view that the Probate Application filed by the appellant was required to be allowed. Order was made accordingly, and the impugned order was set aside. [Kamal Mahaling Patil v. Indubhai Mahaling Patil, 2019 SCC OnLine Bom 954, decided on 26-04-2019]

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