Appellant(S) vs Deputy Commissioner
2025 Latest Caselaw 2453 Jhar

Jharkhand High Court

Appellant(S) vs Deputy Commissioner on 6 February, 2025

Author: Gautam Kumar Choudhary

Bench: Gautam Kumar Choudhary

        IN THE HIGH COURT OF JHARKHAND AT RANCHI
                                M. A. No. 265 of 2006
         1(a) Lobin Mahto
         1(b) Manojur Mahto @ Manoj Kumar Mahto
         1(c) Bhagirath Mahto
         1(d) Podo Devi @ Pado Devi
         1(e) Jalo Devi
         7(a) Biro Devi
         7(b) Saberna Devi
         7(c) Bindu Devi
         7(d) Indu Devi
         8(a) Raj Kishore Mahto
          (b) Jagdish Mahto
          (c) Dropadi Devi
         9(a) Krishna Kumar Mahto
           (b) Kamlakant Mahto
           (c) Kalipada Mahto
           (d) Jotish Kumar Mahto
         10(a) Bhupendra Kumar Mahto
            (b) Nagendra Kumar Mahto
            (c) Korobala Devi
            (d) Jayanti Devi
            (e) Mina Devi
         11 (a) Ramni Devi
             (b) Lambodar Mahto
            (c) Rajeshwar Mahto
            (d) Tara Devi
            (e) Suchitra Devi
                                                            .... .. ... Appellant(s)
                                Versus
         1. Deputy Commissioner, Ranchi.
         2. Chandra Mohan Mahto
         3. Basudeo Mahto
         4. Suryanarayan Sahu
         5. Bijoy Sahu
         6. Durga Devi
                                                   .. ... ...Respondent(s)
                      ...........

CORAM :HON'BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY .........

        For the Appellant (s)         :     Mr. Rohit Roy, Advocate
                                            Mr. Vibhor Mayank, Advocate
        For the Resp.(s)                :   Mr. Amit Kr. Das, Advocate
                                            Mrs. Swati Shalini, Advocate
                      ......

30/ 06.02.2025. Heard, learned counsel for the parties.

1. The instant Misc. Appeal has been filed against the judgment dated 27.04.2006 passed by learned 18th Addl. Judicial Commissioner, Ranchi, in Probate Case No.61 of 1999/ Title Suit No.03 of 1999 whereby and whereunder the application for probate was dismissed.

2. As per the case of the appellant(s)/ petitioner(s) is that a petition under Section 276 of the Indian Succession Act was filed for grant of probate with respect to the schedule property of the Testator, Most. Karmi Devi, W/o Mani Mahto who executed the unregistered Will dated 01.08.1978.

3. The grant of probate was contested by the respondents. Applicant, Ganga Ram Mahto, who was the brother-in-law (Devar) of the testator whereas the probate application was contested by one Chandramohan Mahto S/o Late Bodhan Mahto and Basudev Mahto who were the nephew(s) of the Testator, Most. Karmi Devi.

4. As per the case of the applicant, the Will was attested by Krishna Kumar Mahto and Ghuran Sahu. Objectors contested the grant of Will inter-alia on the ground that the Testator, Most Karmi Devi had executed registered sale- deed in favour of the mother with respect to the suit property on 25.03.1947 and, therefore, the testator had no right, title and interest to execute the Will in favour of the applicants.

5. Learned Probate Court dismissed the application for probate inter-alia on the ground that the applicant had failed to prove the same by leading the attesting witness to the Will, in terms of Section 68 of the Indian Evidence Act and Section 63 of the Indian Succession Act.

6. It is argued by the learned counsel that the law is settled that Probate Court cannot enter into the title of the property and only confined itself to the question whether the Will has been executed freely and fairly by the Testator.

7. In the present case, the learned Court below entered into the title of the property and held its finding at Para No.17 that Karmi Devi after having executed sale-deed has divested of the title, therefore, there is no right to execute the Will with respect to it.

8. Learned counsel on behalf of the private respondent submits that there is no infirmity in the impugned order.

9. Having considered the submissions of both the sides, I find merit as there is no infirmity in the impugned order. It has been noted that there was cloud of suspicion over the execution of the Will as there were two Wills one dated 14.09.1972 and another, the present Will which was presented for being probated i.e. on 31.07.1978. Execution of the earlier Will was not brought to the notice of the Court in the application filed for probate. Further, the applicant failed to lead any evidence of the attesting witnesses to prove its due execution. The only evidence was that of the scribe which cannot be said to be the basis for allowing the probate application.

10. Accordingly, being devoid of merit, the instant Misc. Appeal stands dismissed.

(Gautam Kumar Choudhary, J.) Sandeep/