Allahabad High Court

RAJBALI BHAGAURI KOHAR AND 2 OTHERSversusASHOK KUMAR AND 2 OTHERS

Decided: 11 May 2026
Bench: PANKAJ BHATIA

Holding

The appeal is dismissed as the Bombay High Court judgment upholding the Will stands and no error is found in the probate order.

Summary

The appellants challenged a probate order dated 17 April 2011 that granted probate to a Will executed by Sumaribai on 2 December 1942 in favour of her grandsons. They argued that Bhagelu, who claimed to be Sumaribai's adopted son, was not a valid adoptee, rendering the Will defective and necessitating a hearing before probate could be granted. The respondents contended that the Will was genuine, a position previously affirmed by the Bombay High Court in a 1951 judgment concerning the same Will. The Allahabad High Court noted that the Bombay High Court judgment had not been challenged and therefore the Will remained valid, leaving the appellants without a subsisting succession claim. Consequently, the court found no error in the lower court’s order and dismissed the appeal, while indicating that the appellants could pursue other legal remedies.

Issues considered

Whether the probate order granting probate to the Will of Sumaribai dated 02-12-1942 can be recalled on the ground that the alleged adopted son Bhagelu was not a valid adopted heir.
Whether the earlier Bombay High Court judgment upholding the validity of the 1942 Will bars the appellants' claim.
Whether the appellants were entitled to a hearing before the probate was granted.

Subjects

probate
will
succession
adoption
recall of order
inheritance dispute
judicial review

Judgment

HIGH COURT OF JUDICATURE AT ALLAHABAD
FIRST APPEAL FROM ORDER No. - 283 of 2015

Rajbali Bhagauri Kohar and 2 others
…..Appellant(s)

Versus

Ashok Kumar and 2 others
…..Respondent(s)

Counsel for Appellant(s) : Anil Kumar Rai, Kavindra Singh,
Mahendra Singh, Prabhat Kumar
Singh, Vishnu Singh
Counsel for Respondent(s) : Anand Prakash Srivastava, Ashok
Kumar Srivastava, Ashutosh Shukla,
Dharmendra Kumar Singh,
Dharmendra Kumar Tripathi, Dinesh
Chandra Mishra, Kapil Dev Tiwari,
Prateek Sinha, Rakesh Kumar
Shukla

Court No. - 50

HON'BLE PANKAJ BHATIA, J.

1. Heard learned counsel for the appellants and Shri Kapil Dev

Tiwari, learned counsel for the respondents.

2. Present appeal has been filed challenging the order dated

01.11.2014 whereby the application filed by the appellants seeking recall

of the order dated 17.04.2011 came to be rejected.

3. The family tree of the family which has led to the dispute arising

inter se in between the parties is as under:
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FAFO No. - 283 of 2015

4. The claim of the appellants was based upon succession after the

death of second wife Sumaribai who died on 03.03.1997 whereas the

claim of the respondents is based upon a Will executed in favour of

Sumaribai by the original owner on 02.12.1942. It was claimed that after

the death of Sumaribai one Bhagelu, the adopted son, succeeded to the

properties. It is also claimed that during her lifetime, Sumaribai had

executed a Will in favour of her grandchildren namely Ashok and Om

Prakash. Respondents had filed an application for grant of probate in

respect of the Will executed by Sumaribai in favour of Ashok and Om

Prakash on 14.12.1981 and after considering the relevant claims, the

probate was granted by the District Judge vide order dated 17.04.2011.

The appellants claiming the rights flowing in their favour by virtue of

succession moved an application for recall of the said order which has

been rejected.

5. Contention of learned counsel for the appellants is that as the son

of Sumaribai namely Bhagelu claims to be an adopted son was not an
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FAFO No. - 283 of 2015

adopted son, the Will executed in favour of his son namely Ashok and

Om Prakash on 14.12.1981 itself was bad in law and thus, the appellants

ought to have been heard prior to grant of probate.

6. Learned counsel for the respondents, on the other hand, argues

that initially the claim of the appellants was based upon a will allegedly

executed in the year 1940 in favour of Fulsibai and Sulsibai by Lurkhur

Angan whereas the claim of the respondents was based upon a Will

executed by original owner on 02.12.1942 in favour of his second wife

Sumaribai.

7. The said issue was agitated before the Bombay High Court and

vide its judgment dated 17.01.1951 wherein it was specifically held that

the Will executed in favour of Sumaribai in the year 1942 was a genuine

Will. The said order was passed by the Bombay High Court on its

original side in Cross Appeal No.185 and 313 of 1946. There is no

challenge to the said judgment of the Bombay High Court.

8. In the absence of any challenge to the judgment of the Bombay

High Court, the claim of the appellants based upon succession loses

relevance as the Bombay High Court has categorically held with regard

to veracity of the Will executed on 02.12.1942.

9. In the absence of any challenge to the Will executed by Sumaribai

in favour of her grandsons or any declaration suit by the appellants, no

claim of the appellants appears to be subsisting on the basis of

succession.
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FAFO No. - 283 of 2015

10. In view thereof, no error can be seen in the impugned order

warranting interference. The appeal preferred by the appellants is liable

to be dismissed and is accordingly dismissed.

11. It is, however, made clear that this Court has not restrained the

appellants from available such remedies as may be available under law.

(Pankaj Bhatia,J.)

May 12, 2026
nishant

Digitally signed by :-
NISHANT MOHAN
High Court of Judicature at Allahabad

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