MHAM020058782023 1 RMJC No.
2283/2023
Presented on : 25.10.2023
Registered on : 25.10.2023
Decided on : 28.03.2025
Duration : 01Y 05M 03D
IN THE COURT OF 12th JT. CIVIL JUDGE SENIOR DIVISION,
AMRAVATI, : AT AMRAVATI :
(Presided over by M.R. Yadav)
RMJC No.2283/2023 Exh. No.25
Rahul Ramkrishna Lahudkar, ...Petitioner
Age : 63 years, Occ. : Retired,
R/o. Pundlikbaba Nagar,
Tower Line, Amravati-444604.
Versus
Nil ...Respondent
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CLAIM : PETITION FOR PROBATE UNDER SECTION 276 OF THE
INDIAN SUCCESSION ACT, 1925.
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APPEARANCES : Shri. H. M. Gwalani : Ld. Advocate for the petitioner.
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JUDGMENT
(Delivered as on 28th day of March, 2025)
1) The present petition is for probate under Section 276 of the
Indian Succession Act, 1925.
MHAM020058782023 2 RMJC No.2283/2023
Case of the petitioner in nutshell is as under :-
2) Petitioner is the son of Shilabai Ramkrushna Lahudkar.
Shilabai expired on 19.07.2004. She was the owner and in possession of
the immovable properties described in will executed on 22.05.2004 and
in in schedule-A attached herewith. Shilabai was Hindu and she was
executed will on 22.05.2004 in presence of two witnesses namely
Mohan Nagare and Chandrashekhar Chore. At the time of will she was
aged about 78 years and she was physically fit and conscious state of
mind. She bequeathed her immovable property i.e. agricultural land
bearing Field Gut No. 776, [Link]. 217/20, 218/1, Occupant- Class I,
assessed at Rs. 25.20, admeasuring total area of 4 H 91 R, at mouje
Pusda, Tq. Dist. Amravati to her son i.e. the present petitioner. Deceased
had legal heirs viz. two sons and three daughters. It is submitted that,
when the petitioner approached the mutation of his name on the basis
of will deed he was asked for probate of the will. Therefore, probate
petition is filed.
3) Paper publication was issued to public at large. No
objection are received from anyone.
4) Heard learned Advocate for petitioner.
5) Following points arise for my determination. I have
recorded my findings alongwith reasons as under :-
[Link]. Point Findings
1. Whether the petitioner proves that, the In the
deceased Shilabai Ramkrushna Lahudkar affirmative.
executed Will dated 22.05.2004 ?
MHAM020058782023 3 RMJC No.2283/2023
2. Whether the petitioner is entitled for In the
probate? affirmative.
3. What order ? As per final
order.
REASONS
6) The petitioner has adduced following oral and documentary
evidence: -
ORAL EVIDENCE :-
[Link] Name of Witness Exhibit Number
1. Rahul Ramkrushna Lahudkar (PW1) Exh.10
2. Mohan Mangalrao Nagare (PW2) Exh.02
DOCUMENTARY EVIDENCE :-
Sr. Documents Exhibit
No. Number
1. Death Certificate of Shilabai Lahudkar Exh. 11
2. Gaon Namuna 7 Exh.12
3. Will Deed Exh.13
4. Paper Publication and Receipt Exh.14 & 15
As To Point No. 1 and 2 :-
7) For proving the genuineness and legality of the will initially,
the petitioner has filed his evidence affidavit Exh. 10. He deposed as per
Exh 1. All the contents are not reproduced here in again.
8) According to the petitioner deceased Shilabai bequeathed
her properties to him by way of will dated 22.05.2004. Deceased was
MHAM020058782023 4 RMJC No.2283/2023
having two sons including petitioner and three daughters. She executed
the will in presence of witnesses.
9) The petitioner had filed death certificate of Shilabai Raulkar
at Exh.11 and will deed at Exh.13. Will bears the signature of two
attesting witnesses Mohan Nagare and Chandrashekhar Chore.
Accordingly, the petitioner had issue summons to both these witnesses.
But meanwhile the witness Chandrashekhar expired on 17.02.2025.
Hence, the petitioner has examined only one attesting witness Mohan
Nagare through Court Commissioner.
10) The witness Mohan deposed that Shilabai Raulkar was his
neighbour. He had went to her house at the time of will and Shilabai
requested to him for sign on will. At that time Chandrashekhar was also
present who was the neighbour. Shilabai told that will is prepared as per
her wish. They both signed on the will. Chandrashekhar also signed the
will. Shilabai affixed her thumb impression.
11) The learned Advocate for the petitioner argued that, though
probate is not necessary for will relating to property situated outside the
original ordinary civil jurisdiction of Bombay High Court such
application of probate in outside area is not barred under any law but,
when the petitioner approached the Talathi in October 2022 for
mutation of the property in his name on the basis of will the revenue
authority asked for probate.
12) In this case paper citation was issued but no objection was
received from public at large. Petitioner has filed original will deed
MHAM020058782023 5 RMJC No.2283/2023
(Exh.13) on record. It is unregistered and unstamped document. The
will deed is typed and it bears the signature of Mohan Nagare and
Chandrashekhar Chore. The will is typed by and drafted by Satish
Kalekar, Amravati and it bears his signature. Immediately after a month
of execution of will the deceased expired on 19.07.2004. The question
to be considered whether the probate of unregistered will can be
granted.
13) As per law there is no specified format to make a will and it
is not mandatory to make it on stamp paper or registered will. The
important aspect is that the will should be signed by the testator and
must be signed by the two or more attesting witnesses. In this case one
of the witness has testified and the other witness is expired.
14) Perusal of the evidence of the petitioner and attesting
witness it seems that, the deceased executed the will and it appears a
genuine document. The deceased has bequeathed her property to the
petitioner. Public Citation was issued to the public at large. No objection
has been received from any one till date.
15) The learned Advocate submitted that the probate is
required for mutation of the property in the name of petitioner and the
Revenue Authorities are seeking for probate. As per section 293 of the
Indian Succession Act, 1925 though probate of will shall be granted
until after the expiration of seven days. Article 137 of the Limitation Act
provides that any other application for which no period of limitation is
provided then the application can be filed within three years when the
right to apply accrues.
MHAM020058782023 6 RMJC No.2283/2023
16) In this case it seems that, the will is executed in the year
2004 but it seems that the cause of action arose when the revenue
authority sought probate of the will. 7/12 extract filed on record shows
that the property is still standing in the name of deceased. It seems that
right to apply accrued has occurred when the revenue authority asked
for probate of will.
17) Considering the entire evidence and documentary evidence
to shows that the deceased has executed the will in sound disposing
state of mind. There is no reason to disbelieve the genuineness of
document. The will appears to the legal and genuine document. Hence,
the petitioner is entitled for probate. Therefore, I answered as to point
No. 1 and 2 in affirmative and point No. 3 I pass the following order.
ORDER
1) Petition is hereby allowed.
2) Probate be issued in the name of petitioner namely
Rahul Ramkrishna Lahudkar.
3) The petitioner shall pay the requisite court fees as per
Rules.
4) The original will shall be preserved among the other
record of the court as per section 294 of theDigitally
Act. signed
by MAYURA
RAJARAM
YADAV
Date:
2025.04.03
13:31:53 +0530
( M.R. Yadav )
Date : 28.03.2025. 12th Jt. Civil Judge (Sr. Dn.),
Amravati.