Court No. - 24
Case :- APPLICATION U/S 482 No. - 3449 of 2002 Applicant :- Narayan Singh Opposite Party :- State Of U.P. & Others Counsel for Applicant :- Dharmendra Singhal Counsel for Opposite Party :- Govt. Advocate
Hon'ble Yashwant Varma,J.
Heard learned counsel for the applicants and the learned A.G.A.
This application challenges an order passed by the revisional court which has set aside the order dated 21 October 2000 passed by the concerned Magistrate accepting the protest petition filed by the applicant. In the First Information Report the applicant had alleged that his uncle, the late Atar Singh had executed a will in favour of his wife Chandrawati on 22 February 1982. Atar Singh is stated to have been afflicted by mental illness as a consequence of which, he was admitted to the Mental Hospital, Agra on 3 January 1999. He is thereafter stated to have been discharged on 20 January 1999. The opposite parties are alleged to have manufactured a will dated 6 January 1999. It was alleged that the said will had been created only for the purposes of divesting Chandrawati of her rights over the properties in question. Initially, a final report was submitted by the police. The protest petition preferred by the applicant was allowed by the Magistrate being satisfied that there did exist prima facie material which warranted investigation. It is this order which has been interfered with by the revisional court in terms of the judgment rendered on 8 February 2002 which stands impugned in the instant petition. One of the primary reasons which has weighed with the revisional court in interfering with the order passed by the Magistrate was that the 1982 will was never probated. The revisional court in the considered view of this Court has clearly committed a manifest illegality since there is no requirement of a will executed within the State of U.P. to be mandatorily probated under the provisions of the Indian Succession Act. The requirement of probate being compulsorily obtained operates in respect of a will executed in the presidency towns alone. Additionally, the Court notes that once the Magistrate had formed the opinion that prima facie there did exist circumstance warranting investigation there arose no occasion for the revisional court to have interfered with the discretion so exercised and the opinion so formed by the Magistrate.
The application is consequently allowed. The order of the revisional 21 October 2000 is hereby quashed. It shall be open to the Magistrate to proceed in the matter afresh and in accordance with law.
Order Date :- 27.7.2018 Arun K. Singh (Yashwant Varma, J.)