A.H. SAIKIA, J.— Heard Mr. B.K. Goswami, learned Sr. counsel assisted by Ms. T. Goswami, learned counsel for the appellant. Also heard Mr. C.C. Deka, learned counsel for the respondents. 2. This Letters Patent Appeal has been carried from the judgment dated 18.1.1999 passed by learned Single Judge in M.A(F) No. 1427 1993 dismissing the appeal preferred by the defendant/appellant laying challenge to the judgment and decree dated 19.7.1993 passed by the learned Addl. District Judge, Kamrup in P.T.S. No. 52/1990 decreeing the suit for pro bate in respect of the Will left by one Mrinalini Devi in favour of the respondents. 3. The facts, briefly stated, are that a Will was executed on 26.6.80 by the deceased, Mrinalini Devi, the testatrix, appointing a Trust Board constituting with the present five respondents to operate the entire property both movable and immovable mentioned in the Will. The testatrix died on 23.6.89 after 9 years from the date of execution of the Will. After her death, in the year 1989, an application was filed under Section 276 of the Indian Succession Act, 1925 (for short the 'Act') before the learned District Judge, Kamrup at Guwahati in R.T.S. No. 52/1990 for probate of the Will by all the 5 respondents as the petitioners arraying themselves as members of the Trust Board naming the same as Mrinalini Devi Trust Board. The objector/appellant, being a step son of the testatrix, contested the suit alleging that the said late Mrinalini Devi did not execute the alleged Will and the Plaintiffs/Respondents had no locus standi to file the suit. 4. The trial Court framed as many as three issues which are as under :- “ISSUES 1. Whether the Testator executed the Will in favour of the petitioners? 2. Whether it is a proper and valid Will? 3. To what relief/reliefs are the parties entitled to?" 5. As many as 5 witnesses were examined on behalf of the petitioners/respondents when the appellant/objector adduced 3 witnesses to support his case. On proper appreciation of the testimonies of the witnesses and also after perusal of the respective pleadings of the parties including the contents in the Will, the learned Additional District Judge by judgment dated 19.7.93 decreed the suit for probate in favour of the respondents. On proper appreciation of the testimonies of the witnesses and also after perusal of the respective pleadings of the parties including the contents in the Will, the learned Additional District Judge by judgment dated 19.7.93 decreed the suit for probate in favour of the respondents. Feeling aggrieved by the judgment and decree above mentioned, the appellant took an appeal being numbered as M.A.(F) No. l42/93 before this Court and the learned Single Judge by the impugned judgment and order dismissed the appeal holding that there is no merit in the appeal. Hence, this Letters Patent Appeal. 6. We have carefully perused the impugned judgment and also have gone through the Judgment and decree of the trial Court. On close scrutiny of the impugned judgment, it appears that before the learned Single Judge the following 3 submissions were advanced on behalf of the appellant :- “(i) That the bequest is void one being violative of Section 118 of Indian Succession Act. (ii) That execution and attestation of the Will was not proved; and (iii) That the testatrix has no mental and physical capacity to execute the Will at the relevant time.” It is noticed that all those 3 submissions had received elaborate discussion in the impugned judgment which was passed on consideration of the extensive argument of the rival parties and relying on a catena of precedents. 7. As regards the first submission, the learned Single Judge held that the said Section 118 of the Act which provides for bequest to religious or charitable uses, was not applicable to the Wills made by the Hindus owing to the mandate of Section 57 of the Act which deals with the application of certain provisions of the Act to a class of Wills made by Hindus. In so far as the 2nd and 3rd submissions are concerned, the learned Single Judge, on proper appreciation of the evidence of the witnesses adduced by the parties and also relying on Section 63 of the Act which speaks of execution of unprivileged Wills as well as the judicial opinions rendered in a chain of decisions by the Apex Court, held that the execution and attestation of the Will was adequately proved and both mental and physical capacity of the testatrix who died after 99 years of execution of the Will, to execute the Will at the relevant time, could not be doubted and questioned. Sequel to such findings, the learned Single judge dismissed the appeal holding no merit therein. 8. Assailing the impugned judgment, Mr. B.K. Goswami, the learned Senior counsel, has contended that the learned Single Judge committed grave error of law as well as facts in dismissing the appeal and thereby affirming the decree of probate of the Will in favour of the respondents. The argument of Mr. Goswami is fourfold namely, (1) That there was no proper execution of the Will in question, (2) That there were suspicious circumstances centered round the execution of the Will, (3) That a probate of the Will cannot be granted in piece meal of the property mentioned in the Will, and (4). That probate cannot be granted to an association of individuals under Section 223 of the Act. 9. Be it noted that both the 3rd and 4th submissions of Mr. Goswami, as mentioned above, have been pleaded for the first time before this Court because neither before the trial Court nor before the learned Single Judge those contentions were agitated as reflected from the judgment of the Courts below. 10. It is pertinent to mention herein that admittedly the present Letters Patent Appeal has been filed against the concurrent findings of the Courts below wherein all the materials available on record including the evidence had been taken into consideration in arriving at the just decision of granting probate in favour of the respondents. 11. Arguing his first point, Mr. Goswami has contended that according to the respondents, Will was duly executed by the testatrix in the office of Sub-Registrar at Guwahati in presence of the witnesses, but surprisingly P. W.2 Boloram Hazarika, the scribe of the Will and P.W.3 Renendra Prasad Kakati, the attesting witness, in their depositions stated that the Will was executed in the residence of late Mrinalini Devi at Chenikuthi. It is also submitted that there was no proper attestation of the Will inasmuch as the testatrix did not sign Exhibit-1, the Will, in presence of the two witnesses and as such it cannot be said that there was proper attestation of the Will. More so, the Will was not duly executed by the testatrix as the signatures i.e. Ext. 1(1) to Ext. 1(7) were not the signatures of late Mrinalini Devi. According to him, the learned Single Judge failed to appreciate those aspects in its true perspective. More so, the Will was not duly executed by the testatrix as the signatures i.e. Ext. 1(1) to Ext. 1(7) were not the signatures of late Mrinalini Devi. According to him, the learned Single Judge failed to appreciate those aspects in its true perspective. We do not find any force in the said submissions as the trial Court as well as the learned Single Judge, as noted above, had already decided that the Will was duly attested and executed on correct understanding of the evidences of PW-1,2,3 and 4. Be it noted here that PW-2, the scribe of the Will; categorically stated that he wrote Ext-1, the Will, as per dictation of the testatrix and the said was read over to her and on being satisfied the testatrix signed the Will in his presence. PW-3 also specifically deposed that the Ext-1 was executed in her residence in his presence by putting her signature. It is also seen that the PW-1 Sri Promath Chandra Bordoloi and PW-3 were the attesting witnesses in the Will. In view of the same, it can be safely held that the execution of the Will was complete. 12. With regards to the second limb of his submission, Mr. Goswami has urged that there was a great doubt regarding the capability of the testatrix in executing the Will because at the time of the Will the lady was aged about more than 75 years with her various serious ailments and more importantly she was a heart patient. That apart, 18 lechas of land which was mentioned in the Will was under the occupation of one of the trustees, i.e. Narendra Nath Bordoloi, the respondent No. 1, since deceased and the said plot of land was intentionally excluded in the application for probate sought by the respondents. As such, the entire action as regards the execution of the Will was clouded with doubt and suspicion. This submission also does not impress us a wee bit. In the light of the clear findings on this point in the impugned judgment itself and also on an ordinary reading of the Will as well as pleadings of the parties, it is manifestly noticed that there is no scope for such suspicion or doubt. 13. Advancing his third submission, Mr. Goswami has ardently argued that probate cannot be granted in part of the property so bequeathed under the Will. 13. Advancing his third submission, Mr. Goswami has ardently argued that probate cannot be granted in part of the property so bequeathed under the Will. His contention is that the testatrix by the Will in question bestowed her entire immovable property i.e. 2 Kathas 7 lechas of land situated near M.GJ. Road and 18 Lechas of land situated on the back side of her residential house. But the propounder of the Will prayed for probate only in respect of 2 Kathas 7 lechas of land intentionally excluding 18 Lechas of land in the scheduled annexed to the application for probate. The reason for such exclusion of 18 lechas of land is obvious. Sri Narendra Nath Bordoloi, the respondent No. 1 (since deceased), had interest on the plot of land in question. That being so, the grant of probate in respect of the land in part of the Will property to the exclusion of 18 Lechas of land is not permissible under the law. We are totally disinclined to approve this contention. 14. A bare perusal of the pleadings in the application of the probate especially the prayer portion, makes it ample clear that the respondents prayed for grant of probate of the Will as a whole and it was not that 18 Lechas of the land was excluded from the prayer. The prayer portion of the probate application reads as follows :- “Under the circumstances, it is prayed that your honour may be pleased to grant probate of the Will annexed hereto” It is also noticed that in the Schedule only the said plot of land was not included. Once it is found that the probate is prayed for the entire Will, such omission in the Schedule on the part of the respondents, in our considered opinion, cannot be fatal and such defect is curable. Under clause (d) of Section 276 of the Act, in the application for the grant of the probate, the petitioner is required to state the amount of assets which are likely to come to the petitioner's hands only for the purpose of Court fees. According to Section 19-1 of the Court Fees Act, 1870 which provides for payment of Court fees in respect of probate and letters of administration, the petitioner is required to pay Court fees on such valuation of the property mentioned in the Will. According to Section 19-1 of the Court Fees Act, 1870 which provides for payment of Court fees in respect of probate and letters of administration, the petitioner is required to pay Court fees on such valuation of the property mentioned in the Will. Therefore, it appears that though in the instant case, the respondents asked for probate for the Will as a whole and Court also granted for the entire Will, the exclusion of 18 Lechas of land in the Schedule of the application of the probate, cannot vitiate the grant of probate inasmuch as the mistake can be cured by payment of Court fees for the amount of assets left out in the Schedule. In a case of grant of probate, in our careful view, Schedule of property should not be part of probate. In terms of Section 289 of the Act, being mandatory one, prescribing the form for the grant of the probate, the probate is required to be granted by the District Judge under the seal of his Court in the form set forth in Schedule VI to the Act. Besides, in our considered opinion, there is no jurisdictional error in granting probate, if entire property mentioned in the Schedule of the Will is not included in the application. In a recent decision in KM. Varghese and Others vs. KM Oommen ( AIR 1994 Ker. 85 ), a Division Bench of the Kerala High Court held that the Court is not totally devoid of jurisdiction in the matter of grant in probate even if the entire property scheduled in the Will is not included in the application. In paragraphs 11 and 15, the Court did observe as follows:- “11. Section 278 of the Act deals with petition for letters of administration. This section lays down the requirements of a petition for letters of administration as contrasted with, and distinguished from, an application for probate or letters of administration with the Will annexed, dealt with in S. 276. In this section also clause (d) provides that the application should contain a statement regarding the amount of assets which are likely to come to the petitioner's hands. From the statutory provisions Ss 276 and 278 of the Act, it is clear that there is no mandatory direction that the petitioner for letters of administration should contain the entire assets scheduled in the Will. From the statutory provisions Ss 276 and 278 of the Act, it is clear that there is no mandatory direction that the petitioner for letters of administration should contain the entire assets scheduled in the Will. The sections also do not provide any provision for dismissal of the application for the reason that the entire assets shown in the Will are not schedule in the petition”. 15. However, we do not want to discuss this matter elaborately, since we feel that the Division Bench of this Court in 1974 KIT 865 has held that the court is not totally devoid of jurisdiction in the matter of granting probate even if the entire property scheduled in the will is not included in the application...” 15. In a probate case, the Delhi High Court in In re Anita Rewal, reported in AIR 1980 Delhi 57 had the occasion to deal with such issue. In the said decision, relying on a decision in Channan Devi V. Des Raj Ramchand (AIR 1965 Punj 138), it was held that the Registry was required to prepare the probate in accordance with Form in Schedule VI of the Act by annexing the copy of the Will and not attaching Annexures appended to the application because Schedule of property should not be part of probate. In that case after the grant of probate of the Will to the petitioner, the Registry prepared the probate annexing details of property as Annexures 'A' & 'B' to the said probate, which was held to be contrary to the provisions of Section 289 read with Schedule VI of the Act. 16. Lastly and finally it is argued that a probate cannot be granted to any association of individuals in violation of Section 223 of the Act. In the instant case, the probate has been sought by Mrinalini Devi Trust Board represented by the respondents and as such, the Trust Board, being consisted of individuals with the respondents is debarred from getting a decree of probate in terms of Section 223 of the Act. 17. Before delving upon this contention of the learned Sr. Counsel, it will be appropriate and necessary to refer to Section 223 which reads as follows :- “Section 223. 17. Before delving upon this contention of the learned Sr. Counsel, it will be appropriate and necessary to refer to Section 223 which reads as follows :- “Section 223. Persons to whom probate cannot be granted:-Probate cannot be granted to any person who is a minor or is of unsound mind nor to any association of individuals unless it is a company which satisfies the conditions prescribed by rules to be made by notification in the official Gazette by the State Government in this behalf.” 18. The language of Section 223 is very clear and simple. Probate needs to be denied to an association of individuals. Now it is to be seen whether the respondents are an association of Individuals. A bare perusal of the application of the probate shows that probate has been asked by Mrinalini Devi Trust Board represented by the respondents. But an ordinary reading of the Will does not speak of any such Mrinalini Devi Trust Board save and except the Trust Board so constituted with the respondents by the testatrix only to carry out the intention and purpose of the testatrix. As it appears, the respondents have mentioned the name of Mrinalini Devi Trust Board in the application for probate merely for the purpose of identifying the name of the Trust formulated by the testatrix in the Will executed by her but the entire text of the application clearly indicates that the probate was asked for by individual members and not in the capacity of association of individuals. Individual member-s claimed probate for the properties mentioned in the Will for the proper management of the same to fulfill the wish and desire of the testatrix, further on a discreet scrutiny of the judgment and decree of the trial Court, it seemingly transpires that in decreeing the suit, the probate was not granted in the name of Mrinalini Devi Trust Board but to the respondents in their individual names. The learned Additional District Judge granted the probate to the respondents in clear terms as follows:- “I am the considered opinion the Probate can be and should be granted in the names of the plaintiffs/petitioners, Sri Narendra Nath Bordoloi, Sri Sachidananda Barua, Sri Nishi Nath Changkakati, Sri Arun Ch. The learned Additional District Judge granted the probate to the respondents in clear terms as follows:- “I am the considered opinion the Probate can be and should be granted in the names of the plaintiffs/petitioners, Sri Narendra Nath Bordoloi, Sri Sachidananda Barua, Sri Nishi Nath Changkakati, Sri Arun Ch. Changkakati and Sri Sachindra Bordoloi...” In that view of the matter, it maybe clearly and unhesitatingly held that prohibition in granting of probate to any association of individuals as provided under Section 223 of the Act is not applicable in this case. 19. Supporting the impugned Judgment, Mr. C.C. Deka, the learned counsel appearing on behalf of the respondents, has trenchantly pleaded that the contentions and submissions addressed on behalf of the appellant, cannot be sustained because except third and fourth point of arguments, other issues were convincingly set at rest by the impugned judgment. It is submitted that once the probate of the entire Will, as prayed for, has been granted, the question of grant of probate in piece meal of the property of the Will cannot be raised. According to him, assuming but not conceding that the respondents are an association of individuals in the name of Mrinalini Devi Trust Board, the respondents being the joint trustee, as named by the testatrix, cannot be accepted as an association of individuals but must be taken as a single unit. Reliance has been made to judicial decision in Income Tax matters in Suhashini Karuri and Another v. Wealth Tax Officer, Calcutta, and another reported in ITR 1962 Vol 46 page 953 (Calcutta High Court) and Abhay L. Khatau and others v. Commissioner of Wealth Tax, Bombay City II reported in ITR 1965 Vol 57 page 202 (Bombay High Court). In those two cases it was held that joint trustees must be taken to be a single unit in law and not as an 'association to persons. ' It is further contended that in order to attract the prohibition of Section 223 of Act, the association of persons must have common interest for profitable purpose with an object to produce income. But in the instant case, the status of the trust in question does not aim to make any profit or to produce income inasmuch as the Trust Board itself is a creation of the testatrix for proper management of her both movable and immovable properties. But in the instant case, the status of the trust in question does not aim to make any profit or to produce income inasmuch as the Trust Board itself is a creation of the testatrix for proper management of her both movable and immovable properties. Reference has also been made to a decision of Apex Court in Commissioner of Income Tax, Bombay North, Kutch and Saurashtra vs. Smt. Indira Balkrishna ( AIR 1960 SC 1172 ) wherein it was observed that an “Association of persons” must be one in which two or more persons join in common purpose or common action, the object of which is to produce income, profit or gains. Taken on board the submissions of Mr. Deka, we find sufficient force on the same and accordingly, we are of the considered view that the same may be accepted. In view of what has been observed hereinabove, we do agree to disagree with the contentions put forward on behalf of the appellant in support of this Letters Patent Appeal. 20. For the reasons, discussions and observations indicated above, we find no reason to upset the findings arrived at by the Hon'ble Single Judge. 21. In the result, the appeal fails. The probate shall be issued on payment of additional court fees on the value of the property i.e. 18 Lechas of land situated at the back side of testatrix's residential house. However, no order is passed as regards costs.