Jharkhand High Court
Sri Premendra Kumar vs Dharmender Kumar on 27 March, 2025
Author: Sanjay Kumar Dwivedi
Bench: Sanjay Kumar Dwivedi
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Miscellaneous Appeal No. 479 of 2017
Sri Premendra Kumar, son of Late Sita Nath Upadhay, resident of Village
Rani Bagicha Road No.4, Kati Tand, Ratu, P.O. & P.S. Ratu, District-
Ranchi- 835222 ... Appellant
-Versus-
1. Dharmender Kumar, son of Shri Kashi Nath Upadhay, resident of Village
Rani Bagicha Road No.4, Kati Tand, Ratu, P.O. & P.S. Ratu, District-
Ranchi- 8352222
2. Sri Jitender Kumar, son of Shri Kashi Nath Upadhay, resident of Village
Rani Bagicha Road No.4, Kati Tand, Ratu, P.O. & P.S. Ratu, District-
Ranchi- 835222
3. Mrs. Rekha Mishra, daughter of Sri Kashi Nath Upadhay and wife of Sri
Ravindra Kumar Mishra, presently residing at Station Para, Rajgangpur
20/16, Rajgangpur, P.O. & P.S. Rajgangpur, District- Sundargarh (Orissa)
4. Mrs. Punam Devi, daughter of Late Sita Nath Upadhay and wife of Sri
Bindeshwar Prasad, resident of Village Alkapuri, Ratu Road, Ranchi, P.O.
Hehal, P.S. Sukhdeo Nagar, District- Ranchi
5. Mrs. Nilam Kumari Pandey, daughter of late Sita Nath Upadhay, wife of
Sri Rana Udaydit Pandey, resident of Village Singh More, Road No.5,
Kalyanpur, P.O. & P.S. Jagarnathpur, District- Ranchi, at present
Ahmedabad, Gujrat
6. Kashi Nath Upadhay, son of Late Ramsewak Upadhay, resident of Village
Rani Bagicha, Road No.4, Kati Tand, Ratu, P.O. & P.S. Ratu, District-
Ranchi-835222
7. The villagers of Village Rani Bagicha Road No.4, Kati Tand, Ratu, P.O. &
P.S. Ratu, District- Ranchi- 835222 ... Respondents
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CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
-----
For the Appellant : Mr. Saurabh Shekhar, Advocate
Mr. Anurag Kumar, Advocate
Mr. Aman Dayal Singh, Advocate
For Respondent Nos.1-6 : Mr. Himanshu Kumar Mehta, Advocate
Mrs. Manjusri Patra, Advocate
Ms. Mahua Palit, Advocate
Mr. Rishav Raj, Advocate
-----
06/27.03.2025 Heard Mr. Saurabh Shekhar, learned counsel appearing for the
appellant and Mr. Himanshu Kumar Mehta, learned counsel appearing for
respondent nos. 1 to 6.
2. This appeal has been filed under Section 299 of the Indian Succession
Act, wherein, the challenged is made to the judgment and order dated
25.05.2017 passed in Letter of Administration Case No.08 of 2016, passed by
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the learned Additional Judicial Commissioner-VII, Ranchi and further
challenge is made with regard to grant of letter of administration vide order
dated 15.07.2017 in favour of Sri Dharmender Kumar-respondent no.1.
3. Mr. Saurabh Shekhar, learned counsel for the appellant submits that
respondent no.1 approached the learned Court under the provision of Section
278 of the Indian Succession Act and sought for grant of letter of
administration of the Will executed by Malti Devi, who left for her heavenly
abode on 29.09.2004 by filing Letter of Administration Case No.08 of 2016.
He further submits that the said letter of administration case was moved
through the application, affidavited on 16.02.2016, wherein, respondent no.1
has claimed that one Malti Devi, wife of Late Sita Nath Upadhay had acquired
some immovable property in the district of Ranchi, Village Rani Bagicha, Road
No.4, Kati Tand, Ratu, P.O. & P.S. Ratu, District- Ranchi, which are as under:
(i) 0.4 decimals through deed no.1175, dated 11.08.1987 in the
district of Ranchi
(ii) 3 decimals through deed no. 11857 dated 02.11.1992
(iii) 1.27 decimals through deed no.9044 dated 03.10.2009
(iv) 1.36 decimals through deed no.4460 dated 14.09.2010.
4. Mr. Saurabh Shekhar, learned counsel appearing for the appellant
further submits that respondent no.1 has prayed for grant of letter of
administration in relation to the unregistered Will entered into by the said
Malti Devi, whom he claims to be as his mother. He then submits that the said
Malti Devi had three sons, namely, Dharmender Kumar, Premendra Kumar
and Jitender Kumar and three daughters, namely, Mrs. Rekha Mishra, Mrs.
Punam Devi and Mrs. Nilam Kumari Pandey and her brother-in-law is Kashi
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Nath Upadhay. Malti Devi was married to Sita Nath Upadhay and, thus, they
are mother and father of the appellant along with respondent nos. 1 to 5. He
submits that respondent no.1 has claimed in the said application that one
registered Will was executed by his so-called father, being Will dated
30.12.1987, wherein, he has declared that the property after his death will
devolve upon his wife, i.e. Malti Devi and after her death, the property will be
equally divided into his son Premendra Kumar and his nephews, Dharmender
Kumar and Jitender Kumar and that registered Will was created as final Will
of the said Sita Nath Upadhay, which has been exhibited and marked as
Ext.-5 on behalf of respondent no.1. He also submits that respondent no.1
has claimed that Malti Devi had executed unregistered Will dated 31.05.2003
and he has prayed for grant of letter of administration through this
unregistered Will. The death certificate of Malti Devi was brought on record,
which has been marked as Ext.1. He further submits that after the notice in
the said case, the appellant appeared and filed his written statement and
controverted the statements made in the plaint, wherein, any relationship
between Sita Nath Upadhay and respondent no.1 has been categorically
denied and his father has stated that the appellant is the sole son of Late Sita
Nath Upadhay and the appellant has taken ground of fake and suspicious
document and it was also stated that the signature of Sita Nath Upadhay, who
was the husband of the said Malti Devi was not taken in the said Will. He
submits that the said lands have been mutated in the name of Late Sita Nath
Upadhay and he was not made party in the said unregistered Will and
mutation of the property in question was also made in his name. He submits
that the ground has also been taken of manufacturing of the Will, which was
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the subject matter of grant of letter of administration in the said Letter of
Administration Case No.08 of 2016. He submits that there is no description of
any property and vague Will has been issued. He submits that Title Suit
No.305 of 2016 was instituted by the appellant and, thereafter, the said L.A.
case was filed before the learned Court. He submits that the said suit was
filed for declaration of title with regard to scheduled properties, however, the
said suit was dismissed for default. By way of referring Annexure-6 Series, he
submits that the appellant has annexed two affidavits dated 19.06.2006 and
26.05.2008 entered into by Sita Nath Upadhay, wherein, he has stated that
the appellant is his sole son and no one else is his son. By way of referring
Annexure-9, which is the deposition of typist as A.W.2 before the learned
Court, he submits that A.W.-2 in his cross-examination, has deposed that he
does not remember, who made him to type the said letter and further he has
also stated that the said letter does not contain any date and he has avoided
to mention any details about the said documents. In this background, he
submits that there is strong suspicion about the Will and the property acquired
through the sale deeds dated 03.10.2009 and 14.09.2010 were the subject
matter in the said L.A. case, however, the learned Court has not taken note
of the said two sale deeds. He submits that Malti Devi left for his heavenly
abode on 29.09.2004, whereas, the said L.A. case has been filed on
16.02.2016 i.e. after approximately 12 years and in view of that, there is
strong suspicion about the genuineness of the Will. He submits that Article
137 of the Limitation Act may not attract directly, however, in the given
circumstances, delayed filing of the said L.A. case raised valid suspicion. The
limitation aspect is also required to be looked into. To buttress this argument,
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he relied upon the judgment passed by the Hon'ble Supreme Court in the
case of Kunvarjeet Singh Khandpur v. Kirandeep Kaur and others,
reported in MANU/ SC/7451/2008. He refers paragraphs 15 and 16 of the
said judgment, which read as under:
"15. Though the nature of the petition has been rightly
described by the High Court, it was not correct in observing
that the application for grant of probate or letters of
Administration is not covered by Article 137 of the Limitation
Act. Same is not correct in view of what has been stated
in The Kerala State Electricity Board's case (supra).
16. Similarly reference was made to a decision of the
Bombay High Court's case in Vasudev Daulatram
Sadarangani v Sajni Prem Lalwani (MANU/ MH/ 0222/1983).
Para 16 reads as follows:
"16. Rejecting Mr. Dalapatrai's contention, I summarise
my conclusions thus:-
(a) under the Limitation Act no period is
advisedly prescribed within which an application
for probate, letters of administration or
succession certificate must be made;
(b) the assumption that under Article 137 the
right to apply necessarily accrues on the date of
the death of the deceased, is unwarranted;
(c) such an application is for the Court's
permission to perform a legal duty created by a
Will or for recognition as a testamentary trustee
and is a continuous right which can be exercised
any time after the death of the deceased, as long
as the right to do so survives and the object of
the trust exists or any part of the trust, if created,
remains to be executed;
(d) the right to apply would accrue when it
becomes necessary to apply which may not
necessarily be within 3 years form the date of he
deceased's death.
(e) delay beyond 3 years after the deceased's
death would arouse suspicion and greater the
delay, greater would be the suspicion;
(f) such delay must be explained, but cannot be
equated with the absolute bar of limitation; and
(g) once execution and attestation are proved,
suspicion of delay no longer operates"."
Relying on the above judgment, Mr. Saurabh Shekhar, learned counsel
appearing for the appellant submits that the case of the appellant is coming
within the direction of the above judgment.
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5. Mr. Saurabh Shekhar, learned counsel appearing for the appellant
further submits that right to apply actually arose on the date of death of Malti
Devi i.e. 29.09.2004. He further draws attention of the Court to Section 286
of the Indian Succession Act and submits that the district delegate is provided
therein and contention has been explained and after such stage, Section 295
of the Indian Succession Act comes into play. In view of that, if such a
situation was there, the said letter of administration case was required to be
converted in the form of the suit, however, that has not been done by the
learned Court and in view of that, the impugned order cannot sustain in the
eyes of law and, as such, the same may kindly be set aside.
6. On the other hand, Mr. Himanshu Kumar Mehta, learned counsel
appearing for respondent nos. 1 to 6 opposed the prayer and submits that
the learned trial court has given a reasoned finding in the impugned judgment
and has threadbare discussed the case of both the sides and, thereafter,
passed the said order and in view of that, there is no illegality in the impugned
order. He further submits that he has examined the said deeds and found that
the dates of those two deeds were prior to the year 2004 i.e. the year of
death of Malti Devi. However, he further submits that in the plaint, the date
of those two deeds have been typed, which suggests that the same were
after the death of Malti Devi. He also submits that the learned Court only
granted letter of administration of the property of Late Malti Devi and there
is no description of any property in the impugned order and only letter of
administration has been granted in favour of respondent no.1 and in view of
that, respondent no.1 is not the sole beneficiary and, as such, there is no
illegality in the impugned order.
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7. In view of the above submissions of the learned counsel for the parties,
the Court has gone through the materials on record including the judgment
passed by the learned Court, from where, it transpires that the said Malti Devi
executed unregistered Will dated 31.05.2003, which was the subject matter
in Letter of Administration Case No.08 of 2016. Malti Devi left for her heavenly
abode on 29.09.2004 and the death certificate has been exhibited as Ext.1.
Malti Devi was the wife of Late Sita Nath Upadhay. Sita Nath Upadhay has
denied relationship with the respondents and he has stated that the appellant
is his only son and no one else is his son, in light of the affidavits dated
19.06.2006 and 26.05.2008, contained in Annexure-6 Series of the memo of
appeal.
8. A.W.2 is the typist and he has not disclosed the date and he has also
not stated who has asked him for typing of the letter and he has admitted
that the said letter has not contained any date and he has also denied any
details about the said document.
9. Looking into the said Will, which is contained in Annexure-4, it is crystal
clear that there is no description of any property with regard to the Will and
vague statement is made of properties acquired by Late Malti Devi. In the
written statement, the ground has been taken by the appellant that the name
of the property in question was acquired by Late Sita Nath Upadhay, who was
the husband of Late Malti Devi and rent receipt has also been issued, which
clearly suggests that at the time of mutation process no objection was raised
by anybody. The appellant in cross-examination has stated that rent receipt
dated 22.08.2008 has been marked as Ext.B, however, that was marked with
objection, which further suggests that prima facie Sita Nath Upadhay has
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occupied the said property and he has not been made party in the said
unregistered Will.
10. Further, Malti Devi left for her heavenly abode on 29.09.2004, whereas,
the said letter of administration case has been filed in the year 2016 i.e.
approximately after 12 years. Even no explanation has been made of filing
the said case at such a belated stage.
11. There is no inflexible rule as regards the nature of the evidence
required in any particular circumstances, but the evidence in favour of a Will,
propounded after a long lapse of time, must extend to clear proof of execution.
This very case tests the truth of the proposition. If the Will had been set up
soon after the testator's death, it would have been easier to the heirs to rebut
the evidence regarding the alleged ill-feeling between the husband and the
wife or the appellant and respondents herein. In this background, the
question then arises has the respondent/plaintiff removed the suspicion,
which naturally attaches to a Will produced in the circumstances. What has
been discussed herein above, this Court is having a clear opinion that the
respondents have not established the fact of suspicion. The witness A.W.2,
who has been examined as typist of the letter in support of the Will, is a
person of no particular credit and the explanation is not offered in regard to
the various suspicious circumstances and that is far from convincing.
12. Further, the probate proceeding is ultimately a matter of conscience of
the Court and irrespective of whether any plea in opposition is taken or not,
a propounder of Will is required to satisfy the conscience of the Court with
removal of all the suspicious circumstances. The probate proceeding is not
merely inter-partes proceeding but leads to judgment in rem and, therefore,
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even when no one contests, it does not ipso facto lead to grant of probate.
The probate is granted only on proof of Will as also on removal of suspicious
circumstances, if there be any, to the final satisfaction of the conscience of
the Court.
13. The principles governing the adjudicatory process concerning proof of
a Will as laid down in paragraph 24 of the judgment passed by the Hon'ble
Supreme Court in the case of Kavita Kanwar v. Pamela Mehta and
others, reported in (2021) 11 SCC 209 are as follows:
(i) Ordinarily, a Will has to be proved like any other document; the
test to be applied being the usual test of the satisfaction of the
prudent mind. Alike the principles governing the proof of other
documents, in the case of Will too, the proof with mathematical
accuracy is not to be insisted upon.
(ii) Since as per Section 63 of the Succession Act, a Will is required
to be attested, it cannot be used as evidence until at least one
attesting witness has been called for the purpose of proving its
execution, if there be an attesting witness alive and capable of
giving evidence.
(iii) The unique feature of a Will is that it speaks from the death of
the testator and, therefore, the maker thereof is not available for
deposing about the circumstances in which the same was
executed. This introduces an element of solemnity in the
decision of the question as to whether the document
propounded is the last Will of the testator. The initial onus,
naturally, lies on the propounder but the same can be taken to
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have been primarily discharged on proof of the essential facts
which go into the making of a Will.
(iv) However, presence of suspicious circumstances makes the onus
heavier on the propounder and, therefore, in cases where the
circumstances attendant upon the execution of the document
give rise to suspicion, the propounder must remove all legitimate
suspicions before the document can be accepted as the last Will
of the testator.
(v) If a person challenging the Will alleges fabrication or alleges
fraud, undue influence, coercion et cetera in regard to the
execution of the Will, such pleas have to be proved by him, but
even in the absence of such pleas, the very circumstances
surrounding the execution of the Will may give rise to the doubt
or as to whether the Will had indeed been executed by the
testator and/or as to whether the testator was acting of his own
free will. In such eventuality, it is again a part of the initial onus
of the propounder to remove all reasonable doubts in the matter.
(vi) A circumstance is "suspicious" when it is not normal or is 'not
normally expected in a normal situation or is not expected of a
normal person'. As put by this Court, the suspicious features
must be 'real, germane and valid' and not merely the 'fantasy of
the doubting mind.'
(vii) As to whether any particular feature or a set of features qualify
as "suspicious" would depend on the facts and circumstances of
each case. A shaky or doubtful signature; a feeble or uncertain
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mind of the testator; an unfair disposition of property; an unjust
exclusion of the legal heirs and particularly the dependants; an
active or leading part in making of the Will by the beneficiary
thereunder et cetera are some of the circumstances which may
give rise to suspicion. The circumstances above-noted are only
illustrative and by no means exhaustive because there could be
any circumstance or set of circumstances which may give rise to
legitimate suspicion about the execution of the Will. On the other
hand, any of the circumstance qualifying as being suspicious
could be legitimately explained by the propounder. However,
such suspicion or suspicions cannot be removed by mere proof
of sound and disposing state of mind of the testator and his
signature coupled with the proof of attestation.
(viii) The test of satisfaction of the judicial conscience comes into
operation when a document propounded as the Will of the
testator is surrounded by suspicious circumstance/s. While
applying such test, the Court would address itself to the solemn
questions as to whether the testator had signed the Will while
being aware of its contents and after understanding the nature
and effect of the dispositions in the Will?
(ix) In the ultimate analysis, where the execution of a Will is
shrouded in suspicion, it is a matter essentially of the judicial
conscience of the Court and the party which sets up the Will has
to offer cogent and convincing explanation of the suspicious
circumstances surrounding the Will.
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14. The conscience of the Court has to be satisfied by the
propounder of Will and further who propounds a Will must
establish the competence of the testator and that aspect has
been considered by the Hon'ble Supreme Court in the case of
Madhukar D. Shende v. Tarabai Aba Shedage, reported in
(2002) 2 SCC 85, wherein, at paragraphs 8 and 9, it has been
held as under:
"8. The requirement of proof of a will is the same as any
other document excepting that the evidence tendered in proof
of a will should additionally satisfy the requirement of Section
63 of the Indian Succession Act, 1925 and Section 68 of the
Indian Evidence Act, 1872. If after considering the matters
before it, that is, the facts and circumstances as emanating
from the material available on record of a given case, the court
either believes that the will was duly executed by the testator
or considers the existence of such fact so probable that any
prudent person ought, under the circumstances of that
particular case, to act upon the supposition that the will was
duly executed by the testator, then the factum of execution of
will shall be said to have been proved. The delicate structure
of proof framed by a judicially trained mind cannot stand on
weak foundation nor survive any inherent defects therein but
at the same time ought not to be permitted to be demolished
by wayward pelting of stones of suspicion and supposition by
wayfarers and waylayers. What was told by Baron Alderson to
the Jury in R v. Hodge 1838, 2 Lewis CC 227 may be apposite
to some extent "The mind was apt to take a pleasure in
adapting circumstances to one another and even in straining
them a little, if need be, to force them to form parts of one
connected hole; and the more ingenuous the mind of the
individual, the more likely was it, considering such matters, to
overreach and mislead itself, to supply some little link that is
wanting, to take for granted some fact consistent with its
previous theories and necessary to render them complete."
The conscience of the court has to be satisfied by the
propounder of will adducing evidence so as to dispel any
suspicions or unnatural circumstances attaching to a will
provided that there is something unnatural or suspicious about
the will. The law of evidence does not permit conjecture or
suspicion having the place of legal proof nor permit them to
demolish a fact otherwise proved by legal and convincing
evidence. Well founded suspicion may be a ground for closer
scrutiny of evidence but suspicion alone cannot form the
foundation of a judicial verdict positive or negative.
9. It is well-settled that one who propounds a will must
establish the competence of the testator to make the will at
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the time when it was executed. The onus is discharged by the
propounder adducing prima facie evidence proving the
competence of the testator and execution of the will in the
manner contemplated by law. The contestant opposing the
will may bring material on record meeting such prima facie
case in which event the onus would shift back on the
propounder to satisfy the court affirmatively that the testator
did know well the contents of the will and in sound disposing
capacity executed the same. The factors, such as the will
being a natural one or being registered or executed in such
circumstances and ambience, as would leave no room for
suspicion, assume significance. If there is nothing unnatural
about the transaction and the evidence adduced satisfies the
requirement of proving a will, the court would not return a
finding of 'not proved' merely on account of certain assumed
suspicion or supposition. Who are the persons propounding
and supporting a will as against the person disputing the will
and the pleadings of the parties would be relevant and of
significance."
15. In light of the above discussions and considering the facts of the
present case, it is crystal clear that the husband of Late Malti Devi, namely,
Sita Nath Upadhay was not made party in the said unregistered Will. In the
said Will, there is no description of any property. The property was acquired
by Sita Nath Upadhay and his name has also been mutated in his favour and
further, there is vagueness in the Will. The person, who has typed the letter,
is not a credential witness and he has not stated any material before the
learned Court. Further, the said two sale deeds disclosed in the plaint are after
the death of Late Malti Devi, which clearly made suspicion about the Will. Not
only that, the said letter of administration case was instituted after
approximately 12 years, which is further a ground to interfere in light of the
judgment relied by the learned counsel for the appellant in the case of
Kunvarjeet Singh Khandpur v. Kirandeep Kaur (supra). If such a
situation was there, the matter was required to be converted into the suit
under Section 295 of the Indian Succession Act and that is well settled
principle, however, that has not been done. Further for declaration of right,
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title and interest, the suit was instituted by the appellant herein, however, it
was dismissed for default and that has not been decided on merit.
16. In view of the above facts, reasons and analysis, the Court finds that
the order dated 25.05.2017 is perverse, which cannot sustain in the eyes of
law and, as such, the order dated 25.05.2017 passed in Letter of
Administration Case No.08 of 2016, passed by the learned Additional Judicial
Commissioner-VII, Ranchi and grant of letter of administration vide order
dated 15.07.2017 in favour of respondent no.1 are, hereby, set-aside.
17. Accordingly, this appeal is allowed in above terms and disposed of.
18. Pending I.A., if any, is disposed of.
(Sanjay Kumar Dwivedi, J.)
Ajay/ A.F.R.
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