Jharkhand High Court
Ramnath Bhagat vs Shibjatan Gupta on 6 February, 2025
Author: Gautam Kumar Choudhary
Bench: Gautam Kumar Choudhary
IN THE HIGH COURT OF JHARKHAND AT RANCHI
M. A. No. 280 of 2007
1.Ramnath Bhagat
2.Uma Shankar Bhagat
3.Ramlakhan Bhagat
4.Radhe Krishna Bhagat
5.Raj Kishore Bhagat
6.Ram Bilas Bhagat
7.Ram Shankar Bhagat .... .. ... Appellant(s)
Versus
Shibjatan Gupta .. ... ...Respondent(s)
...........
CORAM :HON'BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY
.........
For the Appellant (s) : Mrs. Sarita Gupta, Advocate
Mr. Abhijeet Kr, Advocate
For the Resp. : Mr. Abhay Kr. Mishra, Advocate
......
22/ 06.02.2025. Heard, learned counsel for the parties.
1. The instant Misc. Appeal has been filed against the judgment dated
30.05.2007 passed by learned 1st Addl. District Judge, Dumka in Title
Suit No.4 of 2006 (Arising out of Probate Case No.01 of 2000) whereby
and whereunder the application for probate of Will dated 02.06.1998
has been allowed.
2. As per the case of the appellant(s)/ respondent(s), propounder of the
Will, Smt. Someshwary Bhagtain used to reside with the plaintiff(s)
after the death of her husband in the District - Birbhum, West Bengal
and she was the only child of Late Baijnath Bhagat and was sole legal
heir and successor of her father with respect to the property as detailed
in Schedule A & B in the District- Dumka. She executed her last Will in
favour of the plaintiff on 02.06.1998. The probate application was filed
on 19.05.2000 after her death on 07.01.1999.
3. Appellant(s)/ Opp. Party(s)/ defendant(s) contested the probate
application, inter-alia, on the ground that the probate application was
shrouded in suspicious circumstances, as property of Schedule-B was
jointly recorded in the name of the common ancestors. The father of
Testator was neither in possession of the land of Schedule A & B
property nor he had any interest over the schedule property.
4. Learned Probate Court allowed the application for probate, for the
reason as detailed in Para-12 of the impugned judgment. The Probate
Court noted that the attesting witness had duly proved the signature of
the testator on each and every page of the Will. The attesting
witnesses stated in the cross-examination that the Testator was in the
sound state of mind at the time of testamentary suit of the property.
Both the attesting witnesses have stated that they were neighbours of
the Testator, Someshwari Bhagatain.
5. The order has been impugned mainly on the ground that the Will is in
Bangla script whereas, the signature of the testator is in Hindi and no
evidence has been allowed to show that the testator was conversant
with Bangla script. The scribe has also not been examined who could
have said that the Will was read over and explained to anyone.
6. The applicant is a rank outsider and no reason has been stated why
the Will was executed deflecting, the normal line of inheritance.
Reliance in this regard is placed in the judgment rendered by Hon'ble
the Supreme Court in the case of Kavita Kanwar vs. Pamela Mehta &
Ors. passed in Civil Appeal No.3688 of 2017 at Para-29 onwards
wherein unequal distribution of assets by way of Will was one of the
factors which was considered by Hon'ble the Supreme Court to cast
suspicion on the Will executed in favour of the applicant.
7. 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 determination that the will executed by the testator
was last will. Whether he had right to execute the will with respect to
the schedule property is beyond the scope of the court considering a
probate application. The question whether a particular bequest is good
or bad is not within the purview of the Probate Court. Therefore, 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 it
and preserve the original will in its custody. The Succession Act is a
self-contained code insofar 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 (See Krishna Kumar Birla v. Rajendra
Singh Lodha, (2008) 4 SCC 300; Kanwarjit Singh Dhillon v.
Hardyal Singh Dhillon, (2007) 11 SCC 357)
8. Merely because the Will deflects the normal line of succession cannot
be a reason to raise suspicion over its due execution. It has been held
in Rabindra Nath Mukherjee v. Panchanan Banerjee, (1995) 4 SCC
459 at page 461 that execution of will in favour of a person who is not
the natural heir should not raise suspicion because the whole idea
behind execution of will is to interfere with the normal line of
succession. So natural heirs would be debarred in every case of will;
of course, it may be that in some cases they are fully debarred and in
others only partially.
9. In view of the above stated position of law, the plea raised on behalf of
the appellants regarding title or possession of the schedule property is
beyond consideration. It is also not germane whether the property was
joint or it was partitioned or not.
10. Learned Probate Court has noted that the attesting witnesses P.W.
2 and P.W. 3 have supported the case of the plaintiff and proved the
execution of WILL. D.W. 1 in para 5 has stated that after the death of
her husband, Sumeshwari Bhagtain (Testatrix) used to live at
Kathikund with the defendant, where she died and her rites were
performed there. In his cross-examination, he has however admitted
that he had no knowledge that after the death of her husband where
she used to live. D.W. 1 has admitted that Jia Lal Bhagat died in 1998.
That the testatrix died on 07.01.1988 has not been specifically denied
in the show cause filed by the objectors. Therefore, deposition of
D.W.1 is falsified that last rites were performed by Jia Lal Bhagat in
1998.
11. With regard to knowledge of Bangla script, attesting witnesses,
P.W. 1 and P.W. 2 both have stated that the WILL was scribed in their
presence and as per her statement given to be scribed. P.W. 1 has re-
iterated in his cross-examination. In this view of matter, I do not find
any infirmity in the impugned order.
Miscellaneous Appeal accordingly stands dismissed.
Pending I.A., if any, stands disposed of.
(Gautam Kumar Choudhary, J.)
Sandeep/
