Hari Shankar Prasad, J.
1. This appeal at the instance of plaintiff-appellant is directed against the judgment dated 28.6.1997 passed in Original Suit No. 2/96/Probate Case No. 161/93 whereby and whereunder the learned IVth Additional Judicial Commissioner, Ranchi granted the Probate of Will of Late Lachhman Prasad Agarwal in favour of the plaintiff-appellant in part.
2. The case of the plaintiff-appellant (hereinafter to be referred as 'appellant'} is that the appellant has filed an application in the Court of learned Judicial Commissioner. Ranchi for grant of Probate of the Will executed by Late Lachhman Prasad Agarwal who was her husband and which was his last Will executed on 31.3.1992 and the same day it was registered also in the office of the District Sub-Registrar. Ranchi within the jurisdiction of this Court. By his last Will, Late Lachhman Prasad Agarwal bequeathed all his estate, properties, moneys rights and assets belonging to him to his wife-appellant. By that Will, he bequeathed all his moveable and immoveable properties to the appellant. Late Lachhman Prasad Agarwal died on 18.10.1992 leaving behind the following heirs :-
1. Smt. Urmila Agarwal
2. Lav Kumar Agarwal
3. Mrs. Geeta Agarwal
4. Mrs. Mudita Agarwal
5. Dr. Kush Kumar Agarwal
Except eldest son of Lachhman Prasad Agarwal, Lav Kumar Agarwal, all the heirs and legal representatives filed a petition in the Court that they did not have any direction to the grant of Probate with regard to the Will left by their father Notices were issued and Lav Kumar Agarwal filed a Caveat contesting the claim of the appellant for grant of Probate. Since a caveat was filed on behalf of the appellant for grant of Probate. Since a caveat was filed on behalf of Lav Kumar Agarwal, application filed for grant of Probate was converted into title suit No. 2 of 1997. Previously the property under the Will was valued at Rs. 75.000/-and accordingly Probate Duty of Rs. 4,680/- was paid. After appearance of the objector and hearing the Caveator-respondent No. 1 the valuation of the properties was fixed at Rs. 3,00,000/- and appellant further paid Probate Duty of Rs. 21.450/-. The Caveator has raised objection that Will was not genuine and the properties bequeathed by Late Lachhman Prasad Agarwal were the ancestral and joint property and as such, Late Lachhman Prasad Agarwal have no right to bequeath the property and he had done so because the appellant was in a dominating position and she influenced her husband. It is further stated that Caveator also filed a Suit in the Court of Sub-ordinate Judge, Patna for the partition of the property left behind by Late Lachhman Prasad Agarwal and the Suit has been registered as Partition Suit No. 314 of 1991 in the Court of Sub-ordinate Judge, Patna and the learned Sub ordinate Judge, Patna has issued an injunction against the appellant restraining her from transferring the property during the pendency of the suit. On the basis of the pleadings of the parties, the learned trial Court of 4th Additional Judicial Commissioner, Ranchi framed the following issues :-
1. Is the suit property described in schedule-1 of the plaint, joint family properties or not?
2. Is the Will dated 31.3.1992 last voluntary desire of the testator Late Lachhman Prasad Agarwal?
3. Is the petitioner/plaintiff entitled to the relief claimed regarding grant of probate of the above mentioned will or not?
3. The learned 4th Additional Judcial Commissioner, Ranchi after recording the evidence of the sides and after considering the evidence both oral and documentary came to a finding and decided the issue No. 2 in favour of the appellant, but no finding in respect of issued No. 1 was given or discussed and issue No. 3 was decided in favour of the appellant but in part and the learned Court below while decreeing the suit in part, directed the office to issue Letter of Probate in favour of the appellant only to the extent of her being appointed Executor of the properties mentioned in Schedule-1 of the plaint, but put restrictions on appellant that she will not dispose-off or in any manner act which may be detrimental to the interest of heirs of Late Lachhman Prasad Agarwal.
4. Learned counsel appearing for the appellant submitted that Court was not justified in granting conditional Probate of Will without appreciating legal -position. Learned counsel further pointed out that learned Court below committed an error in framing issue No. 1 as whether property is ancestral or joint property, although no decision has been given on this point. Learned counsel further pointed out that finding of the learned Court below that this Court cannot grant Probate in respect of the property lying outside the jurisdiction of the Court is wrong. Learned counsel further pointed out that Court is competent enough to grant probate in favour of the appellant even in respect of the properties which outside the jurisdiction of the Court. In this connection, learned counsel placed reliance on 1998 (2) All PLR 348 wherein jurisdiction of District Court has been discussed and it has been held that District Court has jurisdiction to grant Probate even when such Probate is inoperative in relation to the properties situate-outside the province of the District Court.
5. It was also pointed out that Probate Court cannot put condition, as in the instant case, conditions have been put that appellant will not dispose of the property or like that. The Probate Court has only to see whether there was due execution of the Will, whether the testator was in a sound mind and he was understanding nature and effect of such disposition and in support of that, he put his signature and it is not for the Probate Court to dictate testator as to how he/she should dispose. of the property, nor the Court can introduce its own ethics. In this connection, reliance has been placed upon AIR 1991 Cal 166. Learned counsel further placed reliance upon 1996 (1) PLJR 878 wherein it has been held that Probate proceeding is limited only to the extent can examine genuineness of execution of Will and competence of testator but cannot decide Title of respective parties arising out of sale and purchase. Hence, it was submitted that the Probate Court cannot put condition while granting Probate in favour of the appellant.
6. On the other hand, learned counsel appearing for the respondents-caveator submitted that in view of the injunction passed in Title Partition Suit by the Court of Sub-ordinate Judge, Ranch!, the appellant cannot dispose of the properties.
7. On consideration of facts and on going through the evidence and documents, it is clear that Late Lachhman Prasad Agarwal, at the time of execution of Will, was in sound mind and he was not influenced by any other consideration and he was competent enough to execute the Will with respect to the properties mentioned in Will, although no details of properties have been given in the Will but that will not invalidate the Will and the finding of the learned Court below that Probate Court cannot grant Probate of Will in respect of the properties outside the province, is not proper in view of judgment passed in 1998 (2) All PLR 348 (Supra). Further the condition, which have been put by the learned Probate Court while granting Probate in favour of the appellant, are not proper and just. On the other hand, on a careful reading of Ext. 1 which is Will, it appears that appellant-plaintiff is not the executor of the Will and under Section 276 of the Indian Succession Act, 1925 under which this petition was filed before the learned Court below for grant of probate of the Will, it is clearly mentioned that petition for probate will contain one of the items of the details mentioned in Clause (c) of Section 276 which says that when the application is for probate, that the petitioner is the executor named in the Will but from perusal of Ext. 1 which is the Will, it appears that petitioner has not been named as executor of the Will rather two other persons have been named as executor of the Will. Further, on reading of Section 222 of the Indian Succession Act. 1925, it will appear that probate of the Will can be granted only to appointed executor. Section 222 is quoted herein below :-1-
'222, Probate only to appointed executor.-(1) Probate shall be granted only to an executor appointed by the Will;
(2) The appointment may be expressed or by necessary implication.'
Therefore, in the instant case, since this petition for grant of probate has not been filed by the executor; rather a petition for grant of probate has been filed on behalf of a lady who is the wife of executant of the Will and in whose favour will has been executed, the probate cannot be granted in favour of the appellant. However, alternative argument has been made on behalf of the learned counsel for the appellant that letters of administration can be granted to the legatee. In this connection, he has placed reliance upon 2000 (9) SCC 714. In this very case, a petition for grant of probate was filed but with the death of the applicant, a substitution petition as well as a petition for amendment of the application from grant of probate to grant of letters of administration was filed. The learned Court below rejected the prayer and when he went to the High Court, the prayer was also rejected. But when matter came up before the Apex Court, the same was allowed and the case was remanded back with a direction to the learned Court below to allow the substitution and amendment petition and decide the matter in accordance with law. But, here in the instant case, no such amendment petition appears to have been filed in the learned Court below so that petition for grant of probate may be converted for grant of letters of administration. However, considering the lapse of time, the judgment of the learned Court below is hereby set aside and the case is remanded back to the learned Court below where applicant will file a petition for amendment of the petition is ay discussed aboveand the learned Court below will allow the petition and will also allow opportunity to the par-tics to lead evidence, if necessary and thereafter will proceed in the matter in accordance with law.
8. In the result, this appeal is disposed of with the aforesaid observations and directions.