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TMI Blog2006 (4) TMI 549X X X X Extracts X X X X X X X X Extracts X X X X ..... ndrakala Joshi widow of Shri Basant Kumar Joshi. (2) Gunjan Joshi d/o Shri Basant Kumar Joshi. (3) Siddharth Joshi s/o Shri Basant Kumar Joshi. III. Dr. Sahib Swarup Joshi s/o Shri H.L. Joshi. IV. Shri Gurswarup Joshi s/o Shri H.L. Joshi. V. Shri Prem Swarup Joshi s/o Shri H.L. Joshi. VI. Smt. Beena Sharma d/o Shri H.L. Joshi. VII. Smt. Shanti Devi d/o Shri H.L. Joshi 2. In 1984, the 1st respondent herein filed an application purported to be under Section 276 of the Indian Succession Act, 1925 ('the Act', for short) for grant of probate in respect of the said Will. Objections were filed thereagainst. By an order dated 28.2.1996, the learned Additional District Judge, Delhi held that the said Will executed by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce there is an unusual clause in the Will couched in a slightly vague words, arguments on the point that what shall be the effect of such a clause in a Will, which cannot be implemented on account of unwillingness of a person in a reasonable time, who has just accepted an onerous will to raise the construction. It may be part and parcel of the Will. Appellant No. 4 Sahib Swaroop Joshi shall remain present in person for it appears that he is responsible for causing the problem by not constructing his portion. This court may be inclined to stuck off his defence in case he fails to appear to answer specific question about the date when he intends to construct his portion. If he is not ready to construct, then the counsel for all parties sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Will is still pending. The learned Counsel appearing on behalf of respondent Nos. 2, 3, 5 and 6 supported the contention of the appellant. 4. Mr. L.D. Adhlakha, the learned Counsel appearing on behalf of the 1st respondent, on the other hand, would submit that the appellant herein having accepted the genuineness of the Will in the Court of the Additional District Judge, now cannot turn round and question the validity thereof. It was urged that the appellant was neither an appellant, nor any order had been passed against him and, thus, this appeal should be dismissed. It is not in dispute that the legality or otherwise of the judgment of learned Additional District Judge, directing grant of probate in respect of the Will dated 3.1.1980 ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fore- mentioned premise, in our opinion, therefore, suffers from manifest error. [See Union of India and Ors. v. Modiluft Ltd. AIR2003SC2218 , Para 11 and Srikrishna and Ors. v. Aniruddha Singh and Ors. (2005) 12 SCC 389. In any event, the order of the learned Additional District Judge would merge in the order of the Appellate court which may ultimately be passed and thus, it is necessary that before the stipulations made in the said Will are directed to be given effect to, the contentions raised by the appellant, as also the respondent Nos. 2, 3, 5 and 6 should receive proper consideration by the High Court. In Chandi Prasad and Ors. v. Jagdish Prasad and Ors. (2004)8SCC724 , this Court held that when an Appellate court exercises its power ..... X X X X Extracts X X X X X X X X Extracts X X X X
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