Jharkhand High Court
Puran Prasad Mandal vs The State Of Jharkhand & Anr on 28 April, 2022
IN THE HIGH COURT OF JHARKHAND AT RANCHI
M.A. No. 39 of 2017
1. Puran Prasad Mandal
2. Sitaram Mandal............ Appellants
Versus
The State of Jharkhand & Anr............ Respondents
......
Coram: Hon'ble Mr. Justice Ananda Sen
......
For the Appellants : Mr. S.K.Sharma, Advocate
Mr. Ramchender Sahu, Advocate
For the State : Mr. Aishwarya Prakash, AC to SC (Mines-I)
Mr. Sharabhil Ahmed, AC to SC (Mines-I)
......
13/28.04.2022 Heard Mr. S.K.Sharma, learned counsel for the appellant and Mr.
Aishwarya Prakash, learned AC to SC (Mines-1) for the State.
2. This appeal is being disposed of at the stage of admission itself as
the lower court record has already been called for and has been received
by this Court.
3. Aggrieved by the judgment passed in Probate Case No. 5 of 2010,
by the District Judge-II, Giridih, vide judgment dated 19.08.2016, this
appeal has been preferred by the applicants-appellants, as the probate
case has been dismissed.
4. Learned counsel appearing on behalf of the appellants submits
that the learned District Judge-II, Giridih has completely misdirected
himself while dealing with this probate case. He submits that the basic
principle of deciding a probate case has been done away with by the
District Judge-II, Giridih. As per him, the learned Judge concentrated on
the title of the property, which in fact, cannot be a consideration while
granting probate. While granting probate the Court has to see the
genuineness of a Will and whether it has been properly executed or not. By
going through the impugned judgment, he submits that the reasons which
have been assigned in the impugned judgment for dismissing the probate
case are unknown to law. He refers to several judgments of the Hon'ble
Supreme Court in support of his contention.
5. Learned counsel appearing on behalf of the State submits that
admittedly, Mosomat Punia Devi cannot be said to be the title holder of the
land, which she had bequeathed. In absence of title, she cannot executed
the Will. Thus, the District Judge-II, Giridih, has passed the order
dismissed the probate case.
6. After hearing the parties, I have gone through the lower court
records and the impugned judgment. From the impugned judgment, I find
that one Mosomat Punia Devi, W/o Late Bhatu Mandal executed a Will on
23.08.1994, in favour of the appellants-petitioners. After the death of said
Mosomat Punia Devi, the appellants herein, filed this application for grant
of probate. The District Judge-II, Giridih, after considering the evidence led
by the applicants-petitioners, concluded that the probate cannot be
granted as the petitioners have not filed the original Hukumnama,
Zamindari rent receipts, Government rent receipts, land possession
certificate, copy of return and Register-II of the land. He further held that
the land is Gairmajurwa Khas and there is nothing to prove that the land
is settled in favour of Mosomat Punia Devi. On that ground the probate
application was dismissed.
7. The reason of dismissal is based on the question as to whether
the testator had title over the property, which is the subject matter of the
Will. This issue has been set at rest by the Hon'ble Supreme Court in the
case of "Kanwarjit Singh Dhillon- versus- Hardyal Singh Dhillon & Others, reported in
(2007) 11 SCC 357". The Hon'ble Supreme Court in the aforesaid case has
held that the title of the testator in the suit properties can only be decided
by a civil court on evidence. It was further held in Para-11 of the aforesaid
judgment as follows:-
"It is well settled law that the functions of a Probate Court are to see that the
will executed by the testator was actually executed by him in a sound disposing
state of mind without coercion or undue influence and the same was duly
attested. It was, therefore, not competent for the Probate Court to determine
whether late S. Kirpal Sigh had or had not the authority to dispose of the suit
properties which he purported to have bequeathed by his will. The Probate
Court is also not competent to determine the question of the title to the suit
properties nor will it go into the question whether the suit properties
bequeathed by the will were joint ancestral properties or acquired properties of
the testator."
8. Further, the Hon'ble Supreme Court in the aforesaid judgment,
relying upon the judgment passed in the case of "Ishwardeo Narain Singh-
versus- Kamta Devi, AIR 1954 SC 280" has held as follows:-
"It is true that the probate of the will granted by the competent Probate Court
would be admitted into evidence that may be taken into consideration by the
civil court while deciding the suit for title but grant of probate cannot be
decisive for declaration of title and injunction whether at all the testator had
any title to the suit properties or not."
9. Thus, from the judgment of the Hon'ble Supreme Court it is quite
clear that the court while deciding as to whether probate has to be granted
or not cannot go into the title of the property which is sought to be
bequeathed by virtue of the said Will.
10. In this case, I find that the District Judge-II, Giridih, has solely
dismissed the probate case on the ground that the documents of title of
the property, which was sought to be bequeathed by virtue of the Will, has
not been produced, while deciding an issue as to whether probate has to
be granted or not.
11. Thus, this finding, which is completely erroneous, illegal or
against the provisions of law, needs to be said aside. Thus, impugned
judgment dated 19.08.2016, passed by the District Judge-II, Giridih in
Probate Case No. 5 of 2010, is hereby set aside. The matter is remanded to
the court of the District Judge to pass a fresh order in accordance with law
after considering the evidences laid by the parties.
12. This miscellaneous appeal is thus allowed.
(Ananda Sen, J)
Mukund/-cp.2
