TMI Blog2000 (3) TMI 1125X X X X Extracts X X X X X X X X Extracts X X X X ..... Codicil. The said Nirmal Nalini Dassi bequeathed all her Immovable properly to Dwijendra Kumar Basu and Dlpundra Kumar Basu in equal shares and declared that they both will become the owners of all her property in absolute right. Nirmal Nalini Dassi claimed to be the sole owner of the immovable properly being House at No. 35/C, Dr. Rajendra Road, Calcutta. This property is at the centre of controversy between the parties. After the death of Nirmal Nalini Dassi on or about 28th May 1986, Dlnendra Kumar Bose claiming to be the sole executor under the aforesaid Will dated 11th November, 1983 filed an application for taking out probate in respect of the said Will. In this proceedings the Respondents filed Caveat supported by the Affidavit of Ta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eriod of her life only, but shall not be entitled to transfer or alienate my estate including the movables or any part thereof, and after the death of my said wife my nephews Anil Kumar Bose son of my eldest brother Dwarka Nath Bose deceased, Amarendra Nath Bose son of my third brother Surendra Nath Bose and Rabindra Nath Bose son of my youngest brother Hira Lal Bose or the survivor or survivors and they shall get the whole of my estate moveable and immovable in equal shares absolutely. My said wife is to get a life interest only in my said properties as stated above after my death, provided she ordinarily resides In my said house and promises which have been allotted to me as aforesaid or live under the protection of the members of the fam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th a grant of administration to the estate of the Testator. The Will in the same section has been defined as under : Will' means the legal declaration of the intention of the testator with respect to his properly which he desires to be carried into effect after his death. 5. Section 30 of the Hindu Succession Act 1956 reads as under :-- Any Hindu may dispose of by Will or other testamentary disposition any property, which is capable of being so disposed of by him, in accordance with the provisions of the Indian Succession Act, 1925 (39 of 1925), or any other law for the time being in force and applicable to Hindus. 6. Mr. P. K. Roy, learned Advocate for the Appellant submitted that it was not open to the trial Court at all to go into an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prescription, or in any other manner whatsoever, and also any such property held by her as stridhana immediately before the commencement of this Act. (2) Nothing contained in sub-section(1) shall apply to any property acquired by way of gift or under a Will or any other instrument or under a decree or order of a Civil Court or under an award where the terms of the gift, Will or other instrument or the decree, order of award prescribe a restricted estate in such property, 8. The learned Advocate appearing for the Respondents has, on the other hand submitted that it is not only open but mandatory for the Court seized of probate proceedings to inquire into and find out as to whether testatrix had the title 16 the property in question because ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of going into all simple and intricate questions relating to the title in respect of the properly, whether possessed by the Testatrix or not, with all its effects and consequences, in the light of the Will executed by the Testatrix. The position however is different when one comes to the probate proceedings because the grant of probate in respect of the will of a deceased by itself is not any adjudication by the Court with regard to any question relating to the title as the grant of probate by itself does not confer any right or title upon any person in respect of any properly since all such questions are subject to adjudication by an appropriate Civil Court. The scope of probate proceedings is limited only to decide as to whether the Testa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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