Ratnaprabha W/O Digambar Nemade ... vs Kisan S/O Laxmanrao Deshmukh
2015 Latest Caselaw 12 Bom

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     IN THE HIGH COURT OF JUDICATURE AT BOMBAY, 




                                                                                  
                NAGPUR BENCH, NAGPUR




                                                          
                       FIRAT APPEAL NO.107 OF 2015

    1. Ratnaprabha w/o Digambar Nemade




                                                         
    Aged adult, Occupation Household,
    Flat No.2, Sagar Tarang Apartment, 
    Sharda Nagar, Bhusawal.




                                               
    2. Vijaya d/o Bhikaji Shinde,
    Aged adult, Occupation Household,
                            
    Flat No.26, Saikrupa Apartment,
    Sahakar Nagar, Bhusawal.
                           
    3. Usha w/o Ashok Nemade,
    Age adult, Occupation Household,
    Raghukul colony, Bhusawal.
    All residents of Bhusawal. 
      

    District Jalgaon Khandesh)                         ..... Appellants..
   



                                   ::  VERSUS  ::
    Kisan s/o Laxmanrao Deshmukh
    Aged 27 years, Occupation Agriculturst,
    R/o Antraj, Taluka Khamgaon, 





    District Buldhana.                                         ..... Respondent.
    ================================================================
              Shri A.V. Bhide, Counsel for the Appellants.
              Shri V.V. Bhangde, Counsel for Respondents.
    ================================================================





    CORAM : A. P. BHANGALE, J.  

DATE OF RESERVING JUDGMENT : July 21, 2015 DATE OF PRONOUNCING JUDGMENT : August 6, 2015

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ORAL JUDGMENT

1. The appeal is to challenge the validity and legality of the

impugned Judgment and order dated 17-10-2004 passed by the

Civil Judge Senior Division Khamgaon in Probate case no. 12 of

2010.

2. According to learned Advocate for the appellants the

Testator late Mr. Prabhakar Ramrao Ugwekar had no legal right,

title and interest in the property mentioned in the alleged Will,

made by him. The will was registered after the death of the

Testator. It was therefore shrouded with suspicion as propounder

played active role to get it registered after the death of the alleged

Testator.

3. The facts are, thus:

In the Special Civil Suit No.3 of 1978 decided on

31-08-1984 was decreed for Partition. The suit was filed by the

appellant Ratnaprabha for Partition and Possession of the suit

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land. She was held entitled to share 3/15 in the suit property. The

propounder of the alleged Will had heavy burden to discharge to

establish that the Testator had full right, title and interest in the

subject property to dispose of the same by the Will. Propounder

failed to discharge it. The burden never shifted upon the

appellants.

4.

Learned Advocate Mr Bhide for the appellant referred to

the ruling in the case of Raghunath Rajaram Patil Vs.

Harischandra Pandurang Gaikwad, reported at 2006(1) Mah

LJ 79. In this case Single Judge of this Court held that that there

was no dispute between the parties about the powers delegated to

the Civil Judge Senior Division to decide the Probate application.

This Court had decided that the issue when it arose as ought to

have been decided because when the claim for probate was

disputed it was duty of the court to frame the issue and decide it.

Shri Bhide argued for remanding the matter back to the Probate

Court on the ground that the Court is obliged to decide the

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contentious issue if any.

5. Mr Bhide also referred to The Division Bench ruling of

this Court in the case of Nola Jonathan Ranbhise Vs. Union of

India reported at 2014 (3) Bom. C.R. 641 in order to canvass the

submission that the section 28 -A of the Bombay Civil Court Act,

1869 was held repugnant to the provisions in Indian Succession

Act, 1925 and the was impliedly repealed .Under Section 299 of the

Indian Succession Act , 1925 Appeals from orders of District Judge

lie to the High Court as statutorily every order made by a District

Judge by virtue of the powers hereby conferred upon him shall be

subject to the appeal to the High Court in accordance with the

provisions of the Code of Civil Procedure, 1908 (5 of 1908),

applicable to appeals.

6. Learned advocate Mr. Bhangde for the respondent on

the other hand relied upon the ruling in the case of Kanvarjit

Singh Dhillon Vs Hardayal Singh Dhilon reported at (2007) 11

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SCC 357 to canvass the submission that the contentious issue

involving a serious question of the validity of the right, title and

interest to the immovable property can be decided by only by the

competent Civil court and not by the Probate Court with limited

jurisdiction to examine , hear and decide the validity of the Will

only.

7.

I have considered the submissions at the Bar. It is by

now well settled that the functions of a probate Court are to see

whether the Will has been actually executed by the testator while

in a sound disposing state of mind uninfluenced by any coercion or

undue influence and whether the will has been duly attested. It is

not competent for such Probate Court to determine whether the

testator had or had not the valid legal right, interest and title to

dispose of the property which he purports to dispose of by his Will.

It is also not the function of the probate Court to determine serious

questions of title to the immovable property nor will the probate

Court go into the question whether the property disposed of by the

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Will was joint ancestral property or self-acquired immovable

property of the testator or to find out whether the person making

the bequest of certain property had valid and legal title to dispose

of the same. The probate Court should also not decide who are the

persons beneficially interested in the estate and the mootable

question whether the power of the Testator to bequeath the

property is good or bad according to law. It is not within

domain/purview of the Probate Court examining complicated wider

issues of little required to be determined by competent civil court.

The probate Court is concerned with examining the validity of the

Will only. The onus to prove the execution of a Will always lies in

every case upon the person propounding the Will and he must

satisfy the conscience of the Probate Court that the instrument so

propounded is the last Will of a free and capable testator. If

disinterested and satisfactory evidence in this respect has been

brought on the record, the finding by the Probate Court in favour of

the propounder would be justified.

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8. Another rule, however, is that if circumstances exist

which excite suspicion of the Probate Court and whatever their

nature be, it is for those who propound the Will to remove such

suspicion and to prove the fact that the testator knew the contents

of the Will. It is only where this is done that the onus shifts to those

who oppose the validity of the Will to prove fraud or undue

influence or whatever reason they rely upon to displace the case of

the propounder.

9. In the light of the observations by the Apex Court and

the legal position mentioned above, rulings cited by Shri Bhide are

not helpful to him canvass the submission that the present case

shall be remanded to the Probate Court. No useful purpose can be

served by adhering to such prayer. In my considered opinion the

remedy for the litigant raising the more serious and complicated

issue as to challenge the validity of the legal right, title, interest of

the Testator to dispose of the property which is mentioned in the

Will is to file an independent Civil suit in the Competent Civil

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Court and to get the dispute finally decided in the suit so instituted

in the competent Civil Court.

10. This is so because the Probate Court would have limited

jurisdiction to examine and decide the Validity of the Will i.e.

testamentary disposition only. Propriety of the Will and power of

the testator to bequeath the property are two separate issues and

one who questions the validity of the right ,title and interest of the

testator to dispose of the subject property cannot avoid the forum

of the competent civil court in order to get the decision as to the

legal right , title and interest of the testator to bequeath the

property. Hence I do not find merit in the appeal. The appeal is

dismissed with costs.

JUDGE

!! brw (pdrive) !!

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