Most. Hulas Devi vs Mohit Singh
2025 Latest Caselaw 3664 Jhar

Jharkhand High Court

Most. Hulas Devi vs Mohit Singh on 20 August, 2025

Author: Gautam Kumar Choudhary

Bench: Gautam Kumar Choudhary

                                                                2025:JHHC:24770



IN THE HIGH COURT OF JHARKHAND AT RANCHI
            M. A. No. 280 of 2024

Most. Hulas Devi, W/o Late Kishun Dayal, R/o Village-Gordiha, P.O. & P.S.-Amba,
District-Aurangabad, Bihar.                          ....   ....   Appellant
                                Versus
1. Mohit Singh, S/o Late Suba Singh, R/o Village Dulhi, P.O. Dulhi, P.S. Pandwa,
District Palamau, R/o Village Panki, Tola Bankheta, P.O. & P.S. Panki, District
Palamau.
2. Nakul Singh, S/o Late Suba Singh, R/o Village Dulhi, P.O. Dulhi, P.S. Pandwa,
District Palamau, R/o Village Panki, Tola Bankheta, P.O. & P.S. Panki, District
Palamau.
                                                     ...     ....      Respondents

CORAM: HON'BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY

For the Appellant                : Mr. Binod Singh, Advocate
                                   Mr. Jyoti Toppo, Advocate
                                   Mr. Sunil Kumar Sinha, Advocate
For the Respondents             : Mr. Nasgmani Tiwari, Advocate
                                   Mr. Govind Ray Karan, Advocate
                                   Mr. Navneet Sahay, Advocate
                            ------

Order No. 08 / Dated : 20.08.2025.

1. This appeal has been preferred against the order passed in Original Suit No. 06/2022 arising out of L.A. Case No.01/2020, whereby and whereunder, the Letter of Administration has been allowed in favour of the respondents.

2. The common ancestor Mauwar Kodu Singh died leaving behind his two daughters namely, Tulla Devi, Hulas Devi (Appellant) and one son Indrajeet Singh is not in dispute.

3. Testator Indrajeet Singh is the maternal uncle (mama) of the beneficiaries (sons of Tula Devi), whereas objectors/appellants Hulas Devi is his second sister. It is mainly contended on behalf of the objector that, property being ancestral, the testator had no exclusive right to execute the WILL.

4. As per the case of the Applicant/Respondents, Kodu Singh died much before 1956 and Indrajeet Singh executed registered WILL on 10.06.2015/ 11.06.2015 with respect to entire properties mentioned in Schedule-A and B of the WILL, in favour of the legatees/Respondents who are the sons of Tulla Devi.

5. The application under Section 278 of the Indian Succession Act for grant of Letter of Administration to the appellant was contested by the present appellant Hulas Devi and consequently, it was converted into Original Suit No 06/2022.

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6. The registered WILL has been adduced into evidence and marked as Exhibits-1, and the death certificate of Indrajeet Singh was marked as Exhibit-3. Altogether six witnesses were examined on behalf of the plaintiffs and three witnesses were examined on behalf of the defendant/ present appellant. Two sale deeds were also adduced into evidence on behalf of the appellant being Exhibits-A and A/1.

7. Learned Trial Court framed the following issues for determination:

I. Is the Letter of Administration, as framed and filed, maintainable? II. Is the WILL under subject is genuine and has been executed voluntarily by the executant without any fear, force, coercion and undue influence?

III. Whether the executant legally entitled to execute the WILL in favour of the applicant?

IV. Is the applicant entitled to any other relief or reliefs, if any?

8. Learned Trial Court decided the issues in favour of the petitioners and allowed the application of Letter of Administration which is assailed in the present appeal.

9. It is argued by learned counsel on behalf of the appellant that the applicants/ petitioners had not approached the Court below with clean hands, as Kodu Singh had not died before 1956, rather he was murdered sometimes in 1961 which has come in the deposition of appellant (O.P.W.-2). This fact was deliberately concealed because the subject matter of the Will was ancestral property in which testator had no exclusive right to dispose of the entire property by testamentary dispossession in favour of the respondents, in exclusion to of the share of the objector-Hulas Devi. No evidence has been led to show that Kodu Singh died before 1956.

10.It is also argued that pursuant to 2005 amendment in the Hindu Succession Act, 1956, the females have been admitted to coparcenary, and they had subsisting right in the property of Kodu Singh. Petitioners had not impleaded the daughters of Hulas Devi as well as daughters of Tulla Devi, in the suit for grant of Letter of Administration and, therefore, the suit was bad for non- joinder of necessary party.

11.It is further contended that as a matter of fact, the respondents were not looking after Indrajeet Singh which has also come in the testimony of O.P.W.-2. From this, it cannot be said that this WILL was the last WILL of

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the testator.

12.It is further argued that so far P.W.-1 is concerned, there is no evidence that he was living with testator and he claims to be attesting witness to the WILL.

13.Learned counsel for the respondents has defended the impugned order. It is argued that determination of title is beyond the scope of adjudication in a testamentary suit.

FINDING

14.At the outset, it may be noted that a probate court is not competent to determine the title of scheduled property. The jurisdiction of a probate court is limited to determine that the WILL, executed by the testator, was his last WIll. Whether the testator had right to execute the WILL with respect to the schedule property is beyond the scope of the Court considering a probate application. It has been held in Krishna Kumar Birla v. Rajendra Singh Lodha & Ors., (2008) 4 SCC 300 :

"67. In the recent judgment of Kanwarjit Singh Dhillon v. Hardyal Singh Dhillon [(2007) 11 SCC 357 : (2007) 12 Scale 282] this Court inter alia relying upon Chiranjilal Shrilal Goenka v. Jasjit Singh [(1993) 2 SCC 507] and upon referring to a catena of decisions of the High Court and this Court, held that the Probate Court does not decide any question of title or of the existence of the property itself." (emphasis supplied)

15.Under the circumstance, the argument so strenuously made on behalf of the applicants/ petitioners regarding the title of the testator over the schedule property, is not sustainable as question of title is beyond the province of consideration and has been rightly rejected by the learned probate Court. Grant of Letter of Administration, per se would not determine the title of testator in assets scheduled to the testamentary petition.

16.Reliance is placed by the Appellant on (2006) 5 SCC 558 (Anil Rishi Vs. Gurbaksh Singh) which will not apply to the present case, as it related to a case which was filed for cancellation of sale deed, on the grounds of being forged and fabricated. In this case it was held that the burden of proof was on the plaintiffs, and reverse burden cannot be cast on the defendant in such case. There is a presumption of due execution of a registered instrument. (see Ishwar Dass Jain Vs. Sohan Lal, (2000) 1 SCC 434). It has been held in AIR 1923 PC 114 that the document found registered and certificate of endorsement under Section 60 endorsed thereon. Presumption arises under Section 114 of the Evidence Act, that official acts have been regularly

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performed and the document was duly presented by person duly authorized under law. Here in the instant case, application is for probate of a registered WILL and therefore, onus was on the Appellant/Defendant to rebut the presumption of its due execution.

17.It will be profitable to refer to the factors to be considered in a case for probate or letter of administration of a WILL as laid down by the Apex Court in Gopal Krishan v. Daulat Ram, (2025) 2 SCC 804 :

15. The principles as summarised by the former are reproduced as below : (Meena Pradhan case [Meena Pradhan v. Kamla Pradhan, (2023) 9 SCC 734 : (2023) 4 SCC (Civ) 449], SCC pp. 737-38, para 10) "10. ... 10.1. The court has to consider two aspects : firstly, that the will is executed by the testator, and secondly, that it was the last will executed by him;

10.2. It is not required to be proved with mathematical accuracy, but the test of satisfaction of the prudent mind has to be applied. 10.3. A will is required to fulfil all the formalities required under Section 63 of the Succession Act, that is to say:

(a) The testator shall sign or affix his mark to the will or it shall be signed by some other person in his presence and by his direction and the said signature or affixation shall show that it was intended to give effect to the writing as a will;

(b) It is mandatory to get it attested by two or more witnesses, though no particular form of attestation is necessary;

(c) Each of the attesting witnesses must have seen the testator sign or affix his mark to the will or has seen some other person sign the will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgment of such signatures;

(d) Each of the attesting witnesses shall sign the will in the presence of the testator, however, the presence of all witnesses at the same time is not required;

10.4. For the purpose of proving the execution of the will, at least one of the attesting witnesses, who is alive, subject to the process of court, and capable of giving evidence, shall be examined;

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10.5. The attesting witness should speak not only about the testator's signatures but also that each of the witnesses had signed the will in the presence of the testator;

10.6. If one attesting witness can prove the execution of the will, the examination of other attesting witnesses can be dispensed with; 10.7. Where one attesting witness examined to prove the will fails to prove its due execution, then the other available attesting witness has to be called to supplement his evidence;

10.8. Whenever there exists any suspicion as to the execution of the will, it is the responsibility of the propounder to remove all legitimate suspicions before it can be accepted as the testator's last will. In such cases, the initial onus on the propounder becomes heavier;

10.9. The test of judicial conscience has been evolved for dealing with those cases where the execution of the will is surrounded by suspicious circumstances. It requires to consider factors such as awareness of the testator as to the content as well as the consequences, nature and effect of the dispositions in the will; sound, certain and disposing state of mind and memory of the testator at the time of execution; testator executed the will while acting on his own free will;

10.10. One who alleges fraud, fabrication, undue influence et cetera has to prove the same. However, even in the absence of such allegations, if there are circumstances giving rise to doubt, then it becomes the duty of the propounder to dispel such suspicious circumstances by giving a cogent and convincing explanation; 10.11. Suspicious circumstances must be "real, germane and valid"

and not merely "the fantasy of the doubting mind [Shivakumar v. Sharanabasappa [Shivakumar v. Sharanabasappa, (2021) 11 SCC 277]". Whether a particular feature would qualify as "suspicious" would depend on the facts and circumstances of each case. Any circumstance raising suspicion legitimate in nature would qualify as a suspicious circumstance, for example, a shaky signature, a feeble mind, an unfair and unjust disposition of property, the propounder himself taking a leading part in the

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making of the will under which he receives a substantial benefit, etc."

18.In the present Case, as discussed in the foregoing paragraphs, the WIll was registered and there is a presumption in favour of its due execution. Further the WIll has been exhibited, as Ext-1. PW-1 Narad Kr Yadav has deposed that Katib Raies Alam had drafted the WIll and gave it to the Testator, found it correct, and fixed his LTI. He has proved the signature of the Testator on the WILL. He attested the WILL dated 10.06.2015 as a witness. PW-2 has deposed that the draft of the WILL was prepared by Katib Md. Raies Alam and he had typed the WILL under the instruction of the Testator. The scribe has been examined as PW-3. He has fully supported the case of the petitioner was executed by the testator in a fit state of mind. The will has been proved by attesting witness PW-4 who has deposed that he had identified the testator. Testimony of these witnesses has remained undemolished in the cross-examination. Requirement of proof under Section 63 read with Sections 67-68 of the Evidence Act has been fully satisfied. The evidence is corroborated by PW-5 who is an independent witness and he has deposed that the testator was being looked after by the respondents.

19. Merely because the testator had executed the sale deeds after the execution of WILL, will not render it as his last WILL. Merely because the testator had executed the WIll, not to devoid him the authority to execute sale deed, which constituted part of the schedule property of the WIll.

20. Under the aforesaid facts and circumstances and the reasons discussed above, this Court does not find any infirmity in the impugned grant of Letter of Administration in favour of the Respondents.

Misc. Appeal is, accordingly, dismissed.

Pending I.A., if any, stands disposed of.

(Gautam Kumar Choudhary, J.) Pawan/ -