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Basanti Devi v. Suraj Deen Singh (Dead) Substituted By I.B. Singh & Others - SPECIAL APPEAL No. 284 of 2006 [2006] RD-AH 6923 (30 March 2006)


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CJ's Court

Special Appeal No.284 of 2006

Smt. Basanti Devi


Surajdeen Singh (dead)  and others

Hon'ble Ajoy Nath Ray, CJ.

Hon'ble Ashok Bhushan, J.

This appeal is filed against two orders of an Hon'ble Single Judge, being Hon'ble Mr. Justice Sunil Ambwani dated 19.1.2006 and 13.2.2006.

We overlook the matter of there being one appeal from two orders. The first of the orders dismisses the application of the appellant for recall of a grant of probate, and by the second order, the condonation of delay is allowed and permission is granted for execution of the administration bond.

The probate had been granted as early as on the 16th of November, 1987 in respect of the registered will of the deceased Sarjudeen, which is dated 22.9.1977. Thus, the probate was in respect of a will, which had been executed by the deceased six years before of his death, and got registered at the Registrar's Office.

The grant was made as a  non contentious cause without examining the witnesses from the box, but on the basis of the requisite affidavit proving attestations.

The appellant before us is one Smt. Basanti, who is the daughter-in-law of the deceased's brother.

The probate had been granted to one Surajdeen, who was the first cousin of the deceased.

The properties left are substantially one house and some agricultural land. All the parties reside in the same village; the records show that attempts were made for citation, but that being unsuccessful, the probate was granted after advertisement in the papers.

The application for recall has been made 15 years later and his Lordship has held that the residuary Article of the limitation Act is applicable.

We are in respectful agreement with his Lordship; nor are we convinced with the appellant's case that she neither had real nor constructive knowledge at the material time.

She is aged about 67 years and illiterate; apparently she or people behind her have woken up when mutation proceedings are about to come to an end and close.

We accept the appellant's submission that probate could not have been granted to Surajdeen, who was not named as an executor, but only letters of administration. It has been so directed to be done now, and luckily neither has probate been issued nor has the original will gone out of custody of the Court.

This correction is eminently desirable and we also do not see why we should interfere with this correction regarding grant of time for administration bond. We are of the opinion that for regularising the proceeding, such time is almost compulsorily to be granted; it would be in conflict with the principles of the probate Court to refuse extension of time and thereby render the will of the deceased inoperative; the probate Court tries its best to give effect to the wishes of the deceased, once its conscience is satisfied about the genuineness of the will.

In these circumstances, the appeal from both the orders is dismissed.




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