# Smt. Uma Shashi Verma Memorial Charitable Trust Faizabad v. State of U.P

- **Citation:** (2024) 3 ILRA 251
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-02-28
- **Case number:** First Appeal From Order No. 699 of 2013
- **Bench:** Arun Kumar Singh Deshwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-uma-shashi-verma-memorial-charitable-trust-faizabad-v-state-of-u-p-51646
- **Pages:** 8

## Headnote

Civil Law - Indian Succession Act, 1925 -
Sections 63, 68, 222, 248, 276 & 295 -
Appeal against order dated 22.05.2013 rejecting
probate application for Will dated 01.01.1996 -
Held, trial court erred in rejecting probate due
to
minor
contradictions
in
one
attesting
witness's St.ment - Two attesting witnesses
duly proved execution and attestation of
holographic Will as per Sections 63 and 68 - No
requirement
for
all
witnesses
to
sign
simultaneously - Holographic Will, undisputed in
writing
and
signature,
carries
strong
presumption
of
validity
-
No
suspicious
circumstances established - Impugned order set
aside, probate granted to appellant trust for
purposes specified in Will. (Para 7-17)

Appeal allowed.

List of Cases Cited:

## Text

3 All. Smt. Uma Shashi Verma Memorial Charitable Trust Faizabad Vs. State of U.P.
251
Nos. 599 of 2016 (State of U.P. Vs. Sanjeev
and 6 others) arising out of case crime no.
210 of 2016 under Section 147, 148, 149,
307, 302 IPC, P.S. Kotwali, District
Bareilly, S.T. NO. 600 of 2016 (State Vs.
Ranjeet) arising out of case crime no. 220
of 2016, under Section 3/25 Arms Act, P.S.
Kotwali, District Bareilly and in S.T. No.
603 of 2016 (State Vs. Anshu Arya) arising
out of case crime no. P.S. Kotwali, District
Bareilly, on their furnishing a personal
bond and two sureties each (one of which
of their close relatives) in the like amount
to the satisfaction of the court concerned.

[32] On acceptance of bail
bonds, the lower court shall transmit
photostat copies thereof to this Court for
being kept on record of this appeal.

[33] 100% of the fine awarded by the
Court below under the impugned judgment
shall
be
deposited
by
the
applicant/appellant within a month from
their release on bail.

[34] So far as the accused appellants,
Sanjeev S/o Prakash and Hariom S/o
Late Om Prakash and keeping in view,
their active role in the commission of
offence as they are main author of the
offence, we are not inclined to suspend the
sentence under Section 389(1) Cr.P.C.,
accordingly, their application under Section
389(1)Cr.P.C. stand REJECTED.

(Order on Memo of Appeal)

[1] Office is directed to prepare
the paper book on priority basis.

[2] List this case for final hearing
in the month of May 2024 before
appropriate Court.
----------
(2024) 3 ILRA 251
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 28.02.2024
BEFORE

THE HON'BLE ARUN KUMAR SINGH
DESHWAL, J.

First Appeal From Order No. 699 of 2013

Smt.
Uma
Shashi
Verma
Memorial
Charitable Trust Faizabad ...Appellant
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Sri R.K. Srivastava, Vinod Pandey

Counsel for the Respondent:
Pankaj Kumar Tiwari, Pradeep Kumar
Shukla, Ravi Kishore Joshi

Civil Law - Indian Succession Act, 1925 -
Sections 63, 68, 222, 248, 276 & 295 -
Appeal against order dated 22.05.2013 rejecting
probate application for Will dated 01.01.1996 -
Held, trial court erred in rejecting probate due
to
minor
contradictions
in
one
attesting
witness's St.ment - Two attesting witnesses
duly proved execution and attestation of
holographic Will as per Sections 63 and 68 - No
requirement
for
all
witnesses
to
sign
simultaneously - Holographic Will, undisputed in
writing
and
signature,
carries
strong
presumption
of
validity
-
No
suspicious
circumstances established - Impugned order set
aside, probate granted to appellant trust for
purposes specified in Will. (Para 7-17)

Appeal allowed.

List of Cases Cited:

1. Joyce Primrose Prestor Vs Vera Marie Vas,
(1996) 9 SCC 324

2. Janki Narayan Bhoir Vs Narayan Namdeo
Kadam, AIR 2003 SC 761

3. Yumnam Ongbi Tampha Ibema Devi Vs
Yumnam Joykumar Singh, (2009) 4 SCC 780

4. Ajit Chandra Majumdar Vs Akhil Chandra
Majumdar, AIR 1960 Cal 551
252 INDIAN LAW REPORTS ALLAHABAD SERIES
5.
H.
Venkatachala
Iyengar
Vs
B.N.
Thimmajamma, AIR 1959 SC 443

6. Sridevi Vs Jayaraja Shetty, (2005) 2 SCC 784

7. Niranjan Umeshchandra Joshi Vs Mrudula
Jyoti Rao, (2006) 13 SCC 433

8. Pentakota Satyanarayana Vs Pentakota
Seetharatnam, (2005) 8 SCC 67

9. B. Venkataram Vs B. Venkatesh, (2015) 16
SCC 432

10. Adivekka Vs Hanamavva Kom Venkatesh,
(2007) 7 SCC 91

(Delivered by Hon'ble Arun Kumar Singh
Deshwal, J.)

1. Heard Sri Rakesh Kr. Srivastava,
learned counsel for the appellant and Sri
Pradeep Kumar Shukla, learned counsel for
respondent No.7. No one has appeared on
behalf of the other respondents, despite
service of notice.

2. The present appeal was filed
against the order dated 22.5.2013 passed by
Additional District Judge-I, Court No. 1,
Faizabad in Misc. Non Related Case No. 17
of 2000.

3. The crux of the matter is that one
Dr. Ram Nath Verma, after death of his
wife Smt. Uma Shashi Verma, executed a
trust deed dated 19.12.1995, creating a trust
in the name of his wife viz. Smt. Uma
Shashi Verma Memorial Charitable Trust,
Faizabad. In the said trust deed, it was also
mentioned that he would execute a Will for
the administration regarding the trust. The
above Dr. Ram Nath Verma died on
18.10.1999. Thereafter, an application u/s
276 of Indian Succession Act, 1925 was
filed by the appellant-trust through its
Chairman, Dr. Brijendra Kumar Saxena @
Basantji for grant of probate of Will dated
9.9.1999 claimed to be executed by Dr.
Ram Nath Verma. That application was
contested by respondents No. 2, 3, 4 and 5,
who filed objections regarding the Will
dated 9.9.1999. Therefore, that being a
contentious case, the proceeding was
continued u/s 295 of Indian Succession Act,
in the form of regular suit in accordance
with the provisions of the C.P.C. During
that proceeding, respondent No.6, being the
nephew of Dr. Ram Nath, also filed an
application, mentioning therein that the
Will dated 9.9.1999 was forged and the
correct Will is already lying in the locker of
Late Dr. Ram Nath Verma. Therefore,
learned District Judge by order dated
9.8.2002 directed the bank to open the
locker of Late Dr. Ram Nath Verma and
produce the Will, lying
therein.
In
pursuance of the order dated 9.8.2002, the
Will dated 1.1.1996 was produced before
the court. As the Will dated 1.1.1996 was
not disputed by any of the parties,
therefore, an amendment was made in the
probate application, by the appellant and in
place of Will dated 9.9.1999, the probate
was sought regarding the Will dated
1.1.1996.

4. Except respondent No.1, no one
filed any objection to the Will dated
1.1.1996. However, respondent No.2 filed
an application (Paper No. 38-Ga) wherein
though he did not dispute the Will dated
1.1.1996, he contended that the Will dated
9.9.1999, giving certain benefit to him, is
subsequent to the Will dated 1.1.1996.
Therefore, the probate of the Will dated
9.9.1999 should be granted. In support of
his case, the appellant had produced three
witnesses of the Will dated 1.1.1996,
namely, Ram Kishore Jaiswal (PW-2),
Khushi Ram Verma (PW-3) and R.K.
Shukla (PW-4). One Indrasen, who was
3 All. Smt. Uma Shashi Verma Memorial Charitable Trust Faizabad Vs. State of U.P.
253
power of attorney holder of the Chairman
of the appellant trust, was examined as PW1 and Ram Ratan Verma, who was a family
member of Late Dr. Ram Nath Verma was
also produced as PW-5. None of the
contesting parties have produced any
witness in support of their respective Wills.
After considering the evidence on record,
the learned District Judge, by order dated
22.5.2013, rejected the probate petition of
the appellant. Feeling aggrieved by the said
order, the present appeal has been filed.

5. Contention of learned counsel for
the appellant is that the court below
rejected his probate application merely on
the ground that there is minor contradiction
in the statement of attesting witness Ram
Kishore Jaiswal (one of the attesting
witnesses) who initially filed the probate
petition on behalf of appellant as his
counsel. It is further submitted that other
witnesses, namely, Khushi Ram Verma and
R.K. Shukla, duly proved the Will dated
1.1.1996 as per Section 63 of the Indian
Succession Act and Section 68 of the
Evidence Act. It is also submitted that the
Will dated 1.1.1996, being a hand written
Will of Late Dr. Ram Nath Verma, which is
termed as Holographic Will, has more
evidentiary value if there is no dispute
about the signature and writing of the
executor. In the present case, none of the
parties has disputed the aforesaid facts. In
support of his contention, learned counsel
for the appellant has also relied upon the
judgement of the Apex Court in the case of
Joyce Primrose Prestor (Mrs.) (Nee Vas)
vs. Vera Marie Vas (Ms) and others;
(1996) 9 SCC 324. In that judgement the
Apex Court observed that the Holograph
Will presumption is of more value than the
ordinary Will, if the writing of the Will and
the signature of the testator are admitted. It
is further submitted that the Will dated
1.1.1996 was produced before the court in
pursuance of the order of the District Judge
from the locker of Late Dr. Ram Nath
Verma and that Will was also having
reference in the trust deed itself, therefore,
that Will cannot be disputed and there is
apparent error in the impugned order.

6. Per contra, though the learned
counsel for respondent No.7 has not
opposed the Will and actually admitted the
Will dated 1.1.1996, but submitted that as
per the trust deed as well as the Will dated
1.1.1996, there is specific condition that the
present Chairman of the appellant trust Will
induct any of the family members of Late
Dr. Ram Nath Verma as trustee, therefore,
even if a probate is granted that should be
for the limited purpose as required u/s 248
of Indian Succession Act; for the purpose
specified in the Will itself.

7. After hearing the parties and on
perusal of record, this fact is clear that none
of the parties has disputed the writing and
signature of Late Dr. Ram Nath Verma over
the Will dated 1.1.1996. However, during
the proceeding before the District Judge,
Faizabad, the statement of one of the
attesting witnesses of the Will, namely,
Ram Kishore Jaiswal, has some minor
contradictions. So far as other witnesses of
the Will, namely, Khushi Ram Verma and
R.K. Shukla, are concerned, they clearly
stated that the above Will was written and
signed by Late Dr. Ram Nath Verma and
this fact was acknowledged by Late Dr.
Ram Nath Verma in their presence and also
in presence of Late Dr. Ram Nath Verma
they also witnessed the Will. In the
impugned
judgement,
learned
District
Judge also observed that the witness of the
Will dated 1.1.1996 Sri Ram Kishore
Jaiswal had admitted that other witnesses
had not signed before him. The main thrust
254 INDIAN LAW REPORTS ALLAHABAD SERIES
of the District Judge while rejecting the
probate application of the appellant, is the
contradiction in the statement of Ram
Kishore Jaiswal, one of the witnesses of the
Will. From the perusal of the statement of
attesting witness Ram Kishore Jaiswal, it
appears that contradictions are not such
which
could
create
suspicious
circumstances which are required to be
removed by the propounder.

8. Section 63 of the Indian Succession
Act provides the execution of unprivileged
Wills requires that the testator shall sign or
shall affix his mark on the Will so as to
give effect to the writing in the Will, and
the Will shall be attested by two or more
witnesses. However, it is also provided in
Section 63(c) of the Indian Succession Act
that it shall not be necessary that more than
one witness Will be present at the same
time. For reference, Section 63 of the
Indian Succession Act, 1925 is being
quoted below:-

"63. Execution of unprivileged
Wills.- Every testator, not being a soldier
employed in an expedition or engaged in
actual warfare, or an airman so employed
or engaged, or a mariner at sea, shall
execute his Will according to the following
rules:?

(a) The testator shall sign or shall
affix his mark to the Will, or it shall be
signed by some other person in his
presence and by his direction.

(b) The signature or mark of the
testator, or the signature of the person
signing for him, shall be so placed that it
shall appear that it was intended thereby to
give effect to the writing as a Will.

(c) The Will shall be attested by
two or more witnesses, each of whom has
seen the testator sign or affix his mark to
the Will or has seen some other person sign
the Will, in the presence and by the
direction of the testator, or has received
from
the
testator
a
personal
acknowledgement of his signature or mark,
or the signature of such other person; and
each of the witnesses shall sign the Will in
the presence of the testator, but it shall not
be necessary that more than one witness be
present at the same time, and no particular
form of attestation shall be necessary."

9. Therefore, from the perusal of
Section 63 of the Indian Succession Act, it
is clear that for the signing of the Will by
the witnesses, it is not necessary that all the
witnesses should be present at the same
time. Therefore, view of the District Judge
that one of the witnesses Ram Kishore
Jaiswal admitted that the other persons had
not signed before him, is not a legal
requirement of Section 63 of Indian
Succession Act. Even Section 68 of the
Evidence Act provides that even if the Will
is attested by two or more witnesses, it is
not necessary for all the attesting witnesses
to prove the execution of the Will and same
can be proved by calling only one attesting
witness. For reference Section 68 of
Evidence Act is quoted as under:-

"68. Proof of execution of
document required by law to be attested.

If a document is required by law
to be attested, it shall not be used as
evidence until one attesting witness at least
has been called for the purpose of proving
its execution, if there be an attesting
witness alive, and subject to the process of
the Court and capable of giving evidence :

Provided that it shall not be
necessary to call an attesting witness in
proof of the execution of any document, not
being a Will, which has been registered in
accordance with the provisions of the
Indian Registration Act, 1908 (XVI of
3 All. Smt. Uma Shashi Verma Memorial Charitable Trust Faizabad Vs. State of U.P.
255
1908), unless its execution by the person by
whom it purports to have been executed is
specifically denied."

10. From the reading of Section 63 of
the Indian Succession Act and Section 68
of the Evidence Act, it is clear that
requirement of the law is that at least one
attesting witness to come before the court
to prove due execution and attestation of
Will. It is also clear from Section 63 of the
Indian Succession Act that even if the
attesting witness has not seen the testator
signing the Will, but if he received the
personal
acknowledgement
from
the
testator about his signature on the Will,
then it Will be sufficient for attesting
witness to sign the Will in the presence of
the testator.

11. Hon'ble Apex Court in the case of
Janki
Narayan
Bhoir
vs.
Narayan
Namdeo Kadam; AIR 2003 SC 761, while
laying down guidelines for proof of
execution of the Will, in paragraphs No. 10
and 11, observed as underp:-

"10. Section 68 of the Evidence
Act speaks of as to how a document
required by law to be attested can be
proved. According to the said section, a
document required by law to be attested
shall not be used as evidence until one
attesting witness at least has been called
for the purpose of proving its execution, if
there be an attesting witness alive, and
subject to the process of the court and
capable of giving evidence. It flows from
this section that if there be an attesting
witness alive capable of giving evidence
and subject to the process of the court, has
to be necessarily examined before the
document required by law to be attested
can be used in an evidence. On a combined
reading of Section 63 of the Succession Act
with Section 68 of the Evidence Act, it
appears that a person propounding the will
has got to prove that the will was duly and
validly executed. That cannot be done by
simply proving that the signature on the
will was that of the testator but must also
prove that attestations were also made
properly as required by clause (c) of
Section 63 of the Succession Act. It is true
that Section 68 of the Evidence Act does not
say that both or all the attesting witnesses
must be examined. But at least one
attesting witness has to be called for
proving due execution of the will as
envisaged in Section 63. Although Section
63 of the Succession Act requires that a will
has to be attested at least by two witnesses,
Section 68 of the Evidence Act provides
that a document, which is required by law
to be attested, shall not be used as evidence
until one attesting witness at least has been
examined for the purpose of proving its due
execution if such witness is alive and
capable of giving evidence and subject to
the process of the court. In a way, Section
68 gives a concession to those who want to
prove and establish a will in a court of law
by examining at least one attesting witness
even though the will has to be attested at
least by two witnesses mandatorily under
Section 63 of the Succession Act. But what
is significant and to be noted is that one
attesting witness examined should be in a
position to prove the execution of a will. To
put in other words, if one attesting witness
can prove execution of the will in terms of
clause (c) of Section 63 viz. attestation by
two attesting witnesses in the manner
contemplated therein, the examination of
the other attesting witness can be dispensed
with. The one attesting witness examined,
in his evidence has to satisfy the attestation
of a will by him and the other attesting
witness in order to prove there was due
execution of the will. If the attesting witness
256 INDIAN LAW REPORTS ALLAHABAD SERIES
examined besides his attestation does not,
in his evidence, satisfy the requirements of
attestation of the will by the other witness
also it falls short of attestation of will at
least by two witnesses for the simple reason
that the execution of the will does not
merely mean the signing of it by the testator
but it means fulfilling and proof of all the
formalities required under Section 63 of the
Succession Act. Where one attesting
witness examined to prove the will under
Section 68 of the Evidence Act fails to
prove the due execution of the will then the
other available attesting witness has to be
called to supplement his evidence to make
it complete in all respects. Where one
attesting witness is examined and he fails to
prove the attestation of the will by the other
witness there will be deficiency in meeting
the mandatory requirements of Section 68
of the Evidence Act.

11. Section 71 of the Evidence Act
is in the nature of a safeguard to the
mandatory provisions of Section 68 of the
Evidence Act, to meet a situation where it is
not possible to prove the execution of the
will by calling the attesting witnesses,
though alive. This section provides that if
an attesting witness denies or does not
recollect the execution of the will, its
execution may be proved by other evidence.
Aid of Section 71 can be taken only when
the attesting witnesses, who have been
called, deny or fail to recollect the
execution of the document to prove it by
other
evidence.
Section
71
has
no
application to a case where one attesting
witness, who alone had been summoned,
has failed to prove the execution of the will
and other attesting witnesses though are
available to prove the execution of the
same, for reasons best known, have not
been summoned before the court. It is clear
from the language of Section 71 that if an
attesting witness denies or does not
recollect execution of the document, its
execution may be proved by other evidence.
However, in a case where an attesting
witness examined fails to prove the due
execution of will as required under clause
(c) of Section 63 of the Succession Act, it
cannot be said that the will is proved as per
Section 68 of the Evidence Act. It cannot be
said that if one attesting witness denies or
does not recollect the execution of the
document, the execution of will can be
proved by other evidence dispensing with
the evidence of other attesting witnesses
though available to be examined to prove
the execution of the will. Yet another reason
as to why other available attesting
witnesses should be called when the one
attesting witness examined fails to prove
due execution of the will is to avert the
claim of drawing adverse inference under
Section 114 Illustration (g) of the Evidence
Act. Placing the best possible evidence, in
the given circumstances, before the Court
for consideration, is one of the cardinal
principles of the Indian Evidence Act.
Section 71 is permissive and an enabling
section permitting a party to lead other
evidence in certain circumstances. But
Section 68 is not merely an enabling
section. It lays down the necessary
requirements, which the court has to
observe before holding that a document is
proved. Section 71 is meant to lend
assistance and come to the rescue of a
party who had done his best, but driven to
a state of helplessness and impossibility,
cannot be let down without any other
means of proving due execution by ?other
evidence? as well. At the same time Section
71 cannot be read so as to absolve a party
of his obligation under Section 68 read
with Section 63 of the Act and liberally
allow him, at his will or choice to make
available or not a necessary witness
otherwise available and amenable to the
3 All. Smt. Uma Shashi Verma Memorial Charitable Trust Faizabad Vs. State of U.P.
257
jurisdiction of the court concerned and
confer a premium upon his omission or
lapse, to enable him to give a go-by to the
mandate of law relating to the proof of
execution of a will."

12. Similarly, in the case of Yumnam
Ongbi Tampha Ibema Devi vs. Uumnam
Joykumar Singh and others; (2009) 4
SCC 780, Hon'ble Apex Court observed
that attesting witness should speak not only
about testator's signature to the Will but
also that each of the witnesses had signed
the Will in presence of testator. Paragraphs
No. 12 and 13 of the aforesaid judgement
are being quoted as under:-

"12. The attestation of the will in
the manner stated above is not an empty
formality. It means signing a document for
the purpose of testifying of the signatures of
the executant. The attested (sic attesting)
witness should put his signature on the will
animo attestandi. It is not necessary that
more than one witness be present at the
same time and no particular form of
attestation is necessary. Since a will is
required by law to be attested, its execution
has to be proved in the manner laid down
in the section and the Evidence Act which
requires that at least one attesting witness
has to be examined for the purpose of
proving the execution of such a document.

13. Therefore, having regard to
the provisions of Section 68 of the Evidence
Act and Section 63 of the Succession Act, a
will to be valid should be attested by two or
more witnesses in the manner provided
therein and the propounder thereof should
examine one attesting witness to prove the
will. The attesting witness should speak not
only about the testator's signature or
affixing his mark to the will but also that
each of the witnesses had signed the will in
the presence of the testator."

13. In the present case out of four
attesting witnesses of the Will dated
1.1.1996, two witnesses, namely, R.K.
Shukla and Khushi Ram Verma, clearly
stated that the Will had been signed by the
testator Late Dr. Ram Nath Verma in their
presence and the Will was read over to
them and thereafter they have also signed.
Therefore, execution of the Will dated
1.1.1996 was duly proved by the witnesses
and issuance of probate cannot be denied
only on the ground that the third witness,
namely, Ram Kishore Jaiswal, had some
contradiction in his statement.

14. Once, it is undisputed that the
Will was written and signed by the testator
Late Dr. Ram Nath Verma and two attesting
witnesses very clearly proved that the Will
dated 1.1.1996 was signed in their presence
and subsequently, they had also signed the
same as attesting witnesses, is sufficient to
prove the execution of the Will dated
1.1.1996. Hon'ble Apex Court in Joyce
Primrose Prestor (supra) has observed that
once writing and signature of testator in
holograph Will is admitted then it Will be
deemed
to
be
properly
executed.
Paragraphs No. 15 & 16 of the judgement
is quoted as underp:-

"15. While the presumption in the
case of ordinary Wills is as stated above, in
the
case
of
"holograph
Wills",
the
presumption is all the more ? a greater
presumption. Ex. P-1 is a "holograph Will".
It is one which is wholly in the handwriting
of the testator. The Calcutta High Court in
Ajit Chandra Majumdar v. Akhil Chandra
Majumdar [AIR 1960 Cal 551 : 64 CWN
576] (AIR Cal at p. 552) stated about such
a Will, thus:

"The whole of this Will was
written in the hand by the testator himself
in English. The handwriting is clear and
258 INDIAN LAW REPORTS ALLAHABAD SERIES
firm. The law makes a great presumption in
favour of the genuineness of a holograph
Will for the very good reason that the mind
of the testator in physically writing out his
own Will is more apparent in a holograph
Will than where his signature alone
appears to either a typed script or to a
script written by somebody else."

(emphasis supplied)

The writing of the Will and
signature of the testator are admitted.
There is also due and proper attestation in
accordance with the relevant statutory
provisions. No suspicious circumstance
appears on the face of the document, Ex. P1. The Will appears to be moderate and
rational. Viewed from the above angle,
there is a great presumption ? even
bordering on actual proof of the due
execution and attestation of the Will.

16. Defendants have urged a few
suspicious circumstances and have alleged
that the Will was executed by the undue
influence
exercised
by
the
plaintiff.
Notwithstanding
the
high
degree
of
presumption available in the case of a
holograph Will, which on the face of it,
appears to be properly and duly executed
and attested, have the defendants let in
cogent
evidence
to
offset
the
said
presumption and/or have succeeded in
proving the special plea set up by them,
falls
for
our
consideration.
In
our
considered view, the answer can be only in
the negative."

15. So far as the right to receive
probate of the Will dated 1.1.1996 is
concerned, it is not disputed that in the trust
deed dated 19.12.1995, Basantji was
appointed as Chairman/Caretaker Trustee
and even in the Will dated 1.1.1996, it was
clearly mentioned that Basantji, being the
Caretaker Trustee would enforce the Will
by appointing the trustee from the family of
Late Dr. Ram Nath Verma. Therefore,
Basantji being Caretaker Trustee as well as
Chairman of the trust, has right to seek
probate of the Will dated 1.1.1996 for the
purpose, specified in the Will dated
1.1.1996 as per Section 248 read with
Section 222 of the Indian Succession Act.

16. In view of the above, this Court is
of the view that the order dated 22.5.2013
passed by Additional District Judge-I,
Court No. 1, Faizabad in Misc. Non-related
Case No. 17 of 2000 is erroneous and,
therefore, deserves to be set aside.

17. Accordingly, the impugned order
dated 22.5.2013 is set aside with further
direction to Additional District Judge-I,
Court No. 1, Faizabad to issue probate in
favour of the appellant as per Sections 248
read with Section 222 of the Indian
Succession Act for the purpose specified in
the Will dated 1.1.1996.

18.

With
the
aforesaid
observation, the appeal is allowed.

19. The office is directed to remit the
record of the court below.
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(2024) 3 ILRA 258
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 30.01.2024

BEFORE

THE HON'BLE SHEKHAR B. SARRAF J.

First Appeal No. 30 of 2024

Pankaj Rastogi ...Appellant
Versus
Mohd. Sazid & Anr. ...Respondent

Counsel for the Appellant:
Sri Mohd. Arif

Counsel
for
the
Respondent: