Keshab Prasad Shah vs Ram Pujan Shah and Others

R.S. Mongia, Actg. C.J.

Can the Probate Court decide any question of title or the existence of the property allegedly bequethedby will ? Is the core question that arises for determination in this case.

The brief facts giving rise to the aforesaid question may be noted - Rampujan Prasad Shah filed a petition-before the District Judge for grant of probate of a Will alleging that his father Sahadeo Prasad Shah died on 21st March, 1978 at Dhubri leaving the major portion of his property-within the jurisdiction of that Court. Prior to his death the deceased had executed a registered will on 29th December/66 wherein the deceased had appointed the Petitioner as the sole executor of the will. The opp. parties before the District Judge, namely, Keshab Prasad, Madanlal and Ramaswarupi Devi, submitted written statement wherein it was averred that they had divided the whole properties by registered deed of partition dated 15.5.67, However, the Petitioner before the District Court denied any such partition. Sahadeo Prasad and Nagnarayan were the brothers. Sahadeo Prasad, the testator had adopted the Petitioner, Rampujan, as a son. Sahadeo Prasad and Nagnarayan owned property 1/2 and 1/2. NagNarayan had several sons. Out of his share, i.e. 8 annas, Sahadeo Prasad in the partition had kept to himself 6 annas share and gave 2 annas share to the heirs of Nag Narayan Prasad. Accordingly, the heirs of Nag Narayan got 10 annas share of the entire Dhubri properties and 6 annas share was retained by Sahadeo Prasad. It was contended in the written statement that the will which was executed on 29.12.66 could not be enforced owing to the execution of the partition deed by Sahadeo Prasad and heirs of Nag Narayan on 13.5.67 as the will stood revoked and therefore no probate could be granted to Rampujan Petitioner. As many as 6 issues were framed which were as follows:

i) Whether the will has been revoked as alleged in the written statement ?

ii) Whether the will is disposition of the property of Sahadeo Prasad ?

iii) Whether the properties had been allegedly shown in partition ?

iv) Whether by the Deed of partition Sahadeo Prasad retained only 6 (six) annas share and it is binding on the Petitioner?

v) Whether by the Deed of partition Sahadeo Prasad retained only 6 (six) annas share and it is binding on the Petitioner?

vi) -Whether the Petitioner is entitled to the probate as-asked for ?

vii) To what relief if any, the petition is entitled?

On the basis of the evidence led before the District Judge on Issue Nos. 1,2 and 3 it was held that the will had not beenrevoked fully and will had been executed by Sahadeo Prasad. It was further held on Issue No that there was a partition, but by that partition the will had not been fully revoked and it was operative to the extent of share of 6 annas belonging to testator Sahadeo Prasad Shah. The probate was granted to Rampujan Shah in the following terms:

In view of the discussions stated above, the Petitioner is entitled to get probate as per the intention and the wish made last prior to the death of Testator Sahadeo Prasad Shah.

Accordingly, Petitioner Rampujan Shah''s payer for ''probate'' is granted to the extent of 6 (six) annas share out of 8 (eight) annas share made in the will.

The Petitioner Rampujan Shah dissatisfied With that part of the order of the probate Court which dealt with the partition in question and saying that the probate is grapted to the extent of 6 annas share out of 8 annas share made in the will cannot be allowed to stand, filed an appeal in this Court contending that the probate Court could only go into genuineness of the execution of the. will and not any other question of title or that whether the property sought to bequeath by the testator belonged to him or any part thereof had been disposed of by him after making the will, and before his death. These questions could only be gone into by the civil Court. The learned Single Judge allowed the appeal vide order dated 18.11.97. the learned Judge was of the view that while granting probate, the probate Court at the same time gave certain decisions regarding share of the property etc. which could not have been done by the learned District Judge inasmuch as in a probate suit he has only the jurisdiction to decide the genuineness and due execution of the will and not anything more. "Reliance was placed on a decision of Division Bench of Patna High Court AIR 1941 PC 475. The appeal was allowed to the extent the probate gave any findings regarding the share of testator or regarding partition etc. The Respondents before the District Judge and before the learned Single Judge, aggrieved by the judgment of the learned Single Judge, have filed the present appeal.

According to the learned Counsel for the Appellant the probate Court has the jurisdiction to go into the existence of the title etc. of the testator in the property sought to be bequeath by a will as also factum whether the will stood revoked by virtue of some action regarding the property by the testator after making the will before his death. In other words, if the will stood revoked as per Section 70 of the Indian Successor Act, the question of granting any probate did not arise.

On the other hand, learned Counsel for the Petitioner, now Respondent, argued that under the Indian Succession Act, the probate Court can only decide the factum of the genuineness of the will and the legal character of the executor. The probate Court does not decide any question of title or the existence of the property itself. The learned Counsel cited various authorities of different High Courts as also of the Supreme Court. In view of the judgments of the Supreme Court we are only referring to them. These are Ishwardeo Narain Singh Vs. Sm. Kamta Devi and Others, and Chiranjilal Shrilal Goenka (Deceased) through Lrs. Vs. Jasjit Singh and Others,

We have heard learned Counsel for the parties and are of the view that there is no substance in the appeal. Section 276 of the Indian Succession Act throws some light as to what is the jurisdiction of the probate Court. Section 276 of the Indian Succession Act provides as to what a petition for probate should contain. Section 276(1) reads as follows:

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.

It will be seen from the above, that what is to be stated in the petition for probate is that the will was duly executed and the amount of assets which are likely to come to the Petitioner hand. In other words, nothing is to be proved as to whether the testator owned the property sought to be bequethed or any part thereof had been dealt with after making of the will and before the death. That is the job of the civil Court.

In Ishwardeo Narain Singh Vs. Sm. Kamta Devi and Others, it was observed as under:

The Court of Probate is only concerned with the question as to whether the document put forward as the last will and testament of a deceased person was duly executed and attested in accordance with law and whether at the time of such execution the testator had sound disposing mind. The question whether a particular bequest is good or bad is not within the purview of the Probate Court.

Similarly in Chiranjilal Shrilal Goenka (Deceased) through Lrs. Vs. Jasjit Singh and Others, the Apex Court observed as under:

The Succession Act is a self-contained Code in so far as the question of making an application for probate, grant or refusal of probate or an appeal carried against the decision of the probate Court. The probate proceedings shall be conducted by the probate Court in the manner prescribed in the Act and in no other ways. The only issue in a probate proceeding relates to the genuineness and due execution of the will and the Court itself is under duty to determine, the grant of probate with a copy of the will annexed establishes conclusively as to the appointment of the executor and the valid execution of the Will. Thus it does no more than establish the factum of the will and the legal character of the executor. Probate Court does not decide any question of title or of the existence of the property itself.

In this authority the entire case law was discussed and even the judgment of the Supreme Court in 1954 SC 280 was relied upon.

In view of the settled law by the Apex Court, for giving answer to the question posed in the opening paragraph of the judgment, it need not detain us any further. The answer is that a probate Court can only go into the genuineness and the due execution of the will and nothing beyond that. It has no power to decide any question of title or the existence of the property itself or to the extent of property sought to be bequeathed. In other words, it cannot go into the question as to whether the will stood wholly or partially revoked.

For the foregoing reasons, we find no merit in this appeal, which is hereby dismissed.