Section 276 in The Indian Succession Act, 1925
276. Petition for probate.-
(1) Application for probate or for letters of administration, with the will annexed, shall be made by a petition distinctly written in English or in the language in ordinary use in proceedings before the Court in which the application is made, with the will or, in the cases mentioned in sections 237, 238 and 239, a copy, draft, or statement of the contents thereof, annexed, and stating–
(a) the time of the testator’ s death.
(b) that the writing annexed is his last will and testament,
(c) that it was duly executed,
(d) the amount of assets which are likely to come to the petitioner’ s hands, and
(e) when the application is for probate, that the petitioner is the executor named in the will.
(2) In addition to these particulars, the petition shall further state,–
(a) when the application is to the District Judge, that the deceased at the time of his death had a fixed place of abode, or had some property, situate within the jurisdiction of the Judge; and
(b) when the application is to a District Delegate, that the deceased at the time of his death had a fixed place of abode within the jurisdiction of such Delegate.
(3) Where the application is to the District Judge and any portion of the assets likely to come to the petitioner’ s hands is situate in another State, the petition shall further state the amount of such assets in each State and the District Judges within whose jurisdiction such assets are situate.
HIGH COURT OF DELHI AT NEW DELHI
% Date of Judgment: 21.1.2010
+ TEST CAS.No.35/1999
SHAMA SETHI ……Petitioner Through: Mr. Anil K. Kher, Senior
Advocate with Mr.Rishi
STATE & OTHERS …….Respondents Through: None.
HON’BLE MS. JUSTICE INDERMEET KAUR
1. Whether the Reporters of local papers may be allowed to see the judgment?
2. To be referred to the Reporter or not?
3. Whether the judgment should be reported in the Digest? Yes
INDERMEET KAUR, J. (Oral)
1. This is a petition under Section 276 of the Indian Succession
Act for grant of probate of the Will of late Sh.Din Dayal Kaicker.
Sh.Din Dayal Kaicker had died on 22.12.1985. Petitioner is the
daughter of the deceased and she is seeking a probate of the Will
dated 18.9.1978 duly registered with the Sub-Registrar.
2. The details of the property of which probate is sought are
mentioned herein as follows:
Test cas.35/1999 Page 1 of 8 A. House No.C-155, Greater Kailash Part I, New Delhi.
B. 1/3rd share in Commercial Building No.AB-4, Safdarjang Development Scheme, Near Kamal Cinema, New Delhi
9. On 17.5.2006, the following issues were framed:
1. Is the petitioner entitled to grant of probate of the Will dated 18.9.1978?
2. Were there family settlements on 22.8.90 and 31.3.98?
3. Does the family settlements on 22.8.90 and 31.3.98 stand in the way of the grant of probate?
10. On 13.10.2006 issues no.2 and 3 relating to the family
settlement had been deleted. Court had held that the issue
relating to the title of the property stated to be belonging to the
deceased could not be gone into in a petition under Section 276 of
the Indian Succession Act.
11. The only issue which remained for adjudication was issue
no.1. The parties had led evidence by way of affidavits. Objector
no.4 did not support his objections with any evidence; he did not
file any evidence by way of affidavit; Objector no.7 and 9 had filed
evidence by way of affidavit. On 15.12.2009, objector no.7 had
made a statement on oath in court that he has no objection if the
probate of the Will is granted.
12. Evidence of Objector no.9 only remains to be considered by
this court. None has appeared
had executed this Will. On 18.9.1978 she has reiterated that the
probate of the Will cannot be granted in view of aforestated family
17. It is well settled proposition of law that in a petition for grant
of probate the court only has to see as to whether the testator had
in fact made the Will voluntarily and of his own volition; it was a
genuine document, properly executed and attested as per law and
the testator at the time of executing the said Will had the capacity
to execute it. The petition under Section 276 of the Indian
Succession Act cannot go beyond this. It is not within the scope of
such a petition to go into the subsequent family settlement or
18. In this case Objector No.9 is the only contesting objector.
She has however admitted the execution of the Will dated
18.9.1978 by her deceased father. All the legal heirs have in fact
admitted this document.
Test cas.35/1999 Page 5 of 8
19. There is no dispute that this Will had in fact been executed
by the deceased Din Dayal Kaicker bequeathing his property both
movable and immovable in favour