Jharkhand High Court
Sri Om Prakash Choudhary vs Kamal Agarwal on 26 August, 2025
Author: Gautam Kumar Choudhary
Bench: Gautam Kumar Choudhary
2025:JHHC:25441
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Misc. Appeal No.353 of 2013
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Sri Om Prakash Choudhary, son of Late Lalchand Agarwal, resident of
M.I.G. House No.16, Housing Colony (Sardar Patel Nagar), P.O., P.S. &
District Dhanbad .... .... .... Appellant
Versus
1. Kamal Agarwal, son of Late Lalchand Agarwal, resident of M.I.G.
House No.16, Housing Colony (Sardar Patel Nagar), P.O., P.S. &
District Dhanbad
2. Sri Surendra Kumar Choudhary, son of Late Lalchand Agarwal, resident
of 27A/B, Kshetro Mitra Lane, Pirtala, Salkia, Howrah, West Bengal
3. Smt. Sushila Devi Khowala, wife of Sri Jagdish Prasad Khowala, At Niche
Bazar, Simdega, P.O., P.S. & District Simdega
4. Smt. Kusum Saraf, wife of Sri Kishan Saraf, resident of At Station Road,
Bishtupur, P.O. & P.S. Bistupur, District Bakura, West Bengal
5. Smt. Saroj Goyal, wife of Ram Niranjan Goyal, resident of C/o M/s R.N.
Goyal and Company, Mangtu Ram Road, At P.O. & P.S. Siliguri,
District Darjeeling .... .... .... Respondents
CORAM: HON'BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY
For the Appellant : Mr. Manjul Prasad, Sr. Advocate
Mr. Akhouri Prakhar Sinha, Advocate
For the Respondents : Mr. J.K. Pasari, Advocate
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Order No.15 / Dated : 26.08.2025
The objector is in appeal against the judgment under Probate Case
No.3/2004 whereby and whereunder the probate has been granted with
respect to WILL dated 06.06.1992.
2. As per the case of the petitioner/appellant, the testator- Lal Chand
Agarwal executed WILL dated 06.06.1992, wherein Kamal Agarwal
(respondent no.1) was made the executor of the WILL and Anchi Devi has
been made the owner of the building. As per the WILL, the property as
detailed in the Schedule was bequeathed to his wife Anchi Devi and after
her death, to his youngest son, Kamal Agarwal (respondent no.1).
3. Application was filed for the grant of probate of WILL. Three
witnesses were examined on behalf of her propounder. The WILL was
adduced into evidence and it was produced and marked as Exhibit 1. The
signature of Jai Prakash Chourasia and Anshu Kumar Srivastava were
proved and marked as Exhibit 1/1 and 1/2. The learned trial Court granted
the probate which is under challenge in the instant miscellaneous appeal.
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4. It is submitted by the learned counsel on behalf appellant that the
said WILL executed on 06.06.1992, was not the last WILL as the testator had
executed a registered WILL on 12.06.1996 which has been adduced into
evidence and marked as Exhibit A.
5. It is further argued that as per the terms of WILL, bequeathal of the
property in favour of the respondent No.1 was to take effect only after death
of his mother Anchi Devi. However, the probate application was filed
during the life time of his mother and therefore, it was pre-mature.
6. The main line of argument advanced on behalf of the appellant is
that the said registered WILL executed on 12.06.1996, was not placed before
the Court for being probated. It was adduced into evidence only to show
that the WILL dated 06.06.1992, which was the subject matter of the
application for grant of probate, was not the last WILL of testator therefore,
there was no occasion to examine the attesting witness Govind Ram Mahto
or to satisfy the requirement as required under Section 63(c) of the Indian
Succession Act as well as the Evidence Act. Further, it is argued that from a
plain reading of the registered WILL dated 12.09.1996 (Exhibit-A), it will be
evident that there are not one, but two witnesses to the WILL, but it does
not make any difference whether the witnesses have been cited as an
attesting or not. The typed copy of WILL has been filed by way of
supplementary affidavit. It is also submitted that the mandate of law under
Section 68 of the Evidence Act, examination of one attesting witnesses. The
scribe has also been accepted as a attesting witness in view of the ratio laid
down by the Apex Court Mathew Oommen v. Suseeela Mathew, AIR (2006)
SC 786 para 8.
7. It is argued by the learned counsel on behalf of the respondents, Mr.
J.K. Pasari that the WILL dated 06.06.1992 has been duly probated, whereas
the WILL dated 12.06.1996 was never produced before any Court of law for
being probated. It is contended that the last WILL said to be executed on
12.06.1996 was a forged and fabricated document, the original of the WILL
has not seen the light of the day till date. The applicant had filed a petition
before the learned trial Court for a direction to the opposite parties to
produce the original WILL on 03.09.2010, but the said original WILL was
2025:JHHC:25441
never produced which will be evident from the order dated 07.09.2010. The
present petitioners stated that the original WILL was in the custody of
Advocate Mr. H.N. Agarwalla and it was not produced by him
8. It is also contended that the Registrar, who had signed over the
pages of WILL, cannot be termed as attesting witness. Learned counsel on
behalf of the respondent relies on M.L. Abdul Jabbar Sahib Vs. H.V. Venkata
Sastri & Sons and Others, 1969 1 SCC 573, para 6, 8 & 9, Ishwardeo Narain
Singh Vs. Sm. Kamta Devi & Others, AIR 1954 SC 280, para 4, Meena Pradhan
& Others Vs. Kamla Pradhan & Another (Civil Appeal No.3351 of 2014).
FINDING
9. The grant of probate of WILL executed in the year 1992 is under
challenge mainly on the ground that the testator had subsequently executed
a registered WILL in 1996, therefore, the unregistered will said to be
executed in 1992, for which the probate has been granted, cannot be said to
be the last WILL of the testator. The 1992 WILL is adduced into evidence
and marked as Exhibit 1, whereas the 1996 WILL has been proved as
Exhibit A.
10. The question essentially is can a registered WILL that has not been
probated, be regarded as the last WILL of the testator, against his
unregistered will, which has been duly probated?
11. This Court is of the view that it was incumbent on the part of the
objector/appellant to have produced the original WILL for being probated.
Once a subsequent WILL whether registered or unregistered, is duly
probated, only then it can override the earlier WILL.
12. Here in the present case, as rightly pointed out by the learned
counsel on behalf of the respondents that even the original WILL was not
produced despite the direction of the learned trial Court. When the said
original WILL which is said to be registered, was not even produced, how
can an inference be drawn that it was the last WILL. So long a WILL is not
probated and shown to be last testament, it cannot be regarded as the last
WILL. Therefore, the mere proof of the certified copy of the 1996 WILL,
shall be of no effect, and cannot be regarded as the last WILL of the testator.
13. With regard to the second argument, that probate application was
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premature, I do not find any merit for the reason that, the recital of the WILL
was explicit that the bequeath was to take effect first in favour of the wife of
the Testator viz Anchi Devi, original applicant and then in favour of her son.
Therefore, there was no infirmity in the Judgment and order passed by the
learned trial Court.
Under the circumstance for the reasons discussed above,
Miscellaneous Appeal stands dismissed. Pending Interlocutory
Application , if any, is disposed of.
(Gautam Kumar Choudhary, J.)
Anit
