Sudha Devi vs Smt. Gulab Devi
2025 Latest Caselaw 3549 Jhar

Jharkhand High Court

Sudha Devi vs Smt. Gulab Devi on 28 March, 2025

Author: Gautam Kumar Choudhary

Bench: Gautam Kumar Choudhary

IN THE HIGH COURT OF JHARKHAND AT RANCHI
             M.A. No.32 of 2012
                  ------

Sudha Devi, wife of Shri Nageshwar Mahto, daughter of Late Munshi Mahto @ Bhikhi Mahto, resident of Village-Sindur, P.O., P.S. & District Hazaribag, at present residing at Tetariyadih, P.O.-Domchanch, P.S. & District Koderma .... .... .... Appellant Versus

1. Smt. Gulab Devi, wife of Baijnath Mehta, resident of Village-Behradih, P.O. Behradih, P.S. & District Koderma

2. Govind Mehta

3. Ram Kumar Mehta

4. Surendra Mehta, All S/o Late Girja Devi, All residents of Village-Masnodih, P.O.-Masnodih, P.S. & Dist.-Koderma Dhaneshwari Devi, wife of Yamuna Mehta, resident of Village Phulwariya, P.O. Phulwariya, P.S.-Markacho, District Koderma .... .... .... Respondents With S.A. No.15 of 2009

------

1 (i) Sudha Devi daughter of Late Munshi Mahto @ Bhikhi Mahto wife of Shri Nageshwar Mahto, resident of Village-Sindur, P.O., P.S. & District Hazaribag, at present residing at Tetariyadih, P.O.-Domchanch, P.S. & District-Koderma .... .... .... Appellant Versus 1(a) Jeewan Kumar son of Late Bidyanath Mehta 1(b) Pujna Kumar son of Late Bidyanath Mehta

2. Surendra Prasad Mehta son of Late Bidyanath Mehta

3. Sanjan Kumar @ Sonu son of Late Bidyanath Mehta

4. Bharat Bhushan son of Late Bidyanath Mehta All residents of Village Behradih, P.O. Behradih, P.S. & District Koderma

5. Gulab Devi daughter of Late Munshi Mahto @ Bhikhi Mahto widow of Late Baidyanath Mehta resident of Village Behradih, P.O. Behradih, P.S. & District Koderma

6. Dhaneshwari Devi wife of Sri Yamuna Mahto daughter of Late Radha and Munsh Mahto resident of Village Phulwaria, P.O. Phulwaria, P.S. Markacho, District Koderma

7. Govind Mehta

8. Ram Kumar Mehta

9. Surendra Mehta All sons of Late Ram Kishun Mehta and Late Girija Mahto, 7 - 9 maternal grandsons of Late Most. Radha Devi, resident of Village Masriodih, P.O. Masriodih, P.S. & District Koderma .... .... .... Respondents

CORAM: HON'BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY

For the Appellant : Mr. Manjul Prasad, Sr. Advocate Mr. Baban Prasad, Advocate (In M.A. No.32 of 2012 & S.A. No.15 of 2009) For the Respondents : Mr. Bhaiya Vishwajeet Kumar, Advocate Mr. Sachin Mahto, Advocate (In M.A. No.32 of 2012 & S.A. No.15 of 2009) For Respondent No.2 : Mr. Manoj Tandon, Advocate Mr. Sidharth Ranjan, Advocate Ms. Ankita, Advocate Mr. Karmjit Singh Chabra, Advocate Ms. Neha Bhardwaj, Advocate (In S.A. No.15 of 2009)

C..A.V. ON : 10.03.2025 PRONOUNCED ON: 28.03.2025

The plaintiff is in appeal under Section 299 of the Indian Succession Act against dismissal of Testamentary Suit for probate of WILL dated 21.04.2001 in Title Suit No.2/2008.

2. Appellant- Sudha Devi filed application for probate of the registered WILL executed on 21.04.2001 (Exhibit 3) by her father Munshi Mahto @ Bhikhi Mahto.

3. The details of the property have been set out in the Schedule of

WILL with respect to total land area of 03 acre 67 decimals as detailed in

Schedule of the WILL.

4. Application for probate was contested by Gulab Devi, one of the daughters of testator- Munshi Mahto.

5. Learned Probate Court on contest, converted the application into a Title Suit and framed the following main issues: -

Issue No. ii Whether the testament of the deceased Munshi Mahto @ Bhikhi Mahto was duly executed and attested in accordance with law?

Issue No.iii Whether at the time of execution of WILL, deceased Munshi Mahto @ Bhikhi Mahto had sound disposing mind?

Issue No.iv Whether the WILL is a genuine document? Issue No.v Whether the petitioner/plaintiff is entitled to grant of probate of the annexed registered WILL?

6. The Testamentary Suit was dismissed on the ground that propounder of the WILL- Sudha Devi (P.W.3) in her evidence at para 36 stated that stamp paper of WILL had been purchased by her. Further, the scribe of the WILL Triloki Mahto (P.W. 4) deposed in para 9 of his cross- examination that expense on writing of WILL and registration was borne jointly by Munshi Mahto and propounder- Sudha Devi. Considering this evidence, the Probate Court held that Sudha Devi had taken dominant part in execution of WILL under which she got substantial benefits. In this way, the onus was shifted on the propounder to remove the suspicious circumstance in grant of WILL.

7. It was also noted by the Probate Court, that the testator was not in sound disposing state of mind at the time of execution of WILL. Lastly, the probate application was not properly verified as per the provision of Section 281 of the Indian Succession Act.

8. The appeal has been preferred on the ground that learned Probate Court erred in shifting the negative onus of disproving suspicious circumstance, on propounder of the WILL. It is argued by the learned counsel that it was a registered WILL, and as far as requirement of verification under Section 281 of the Indian Succession Act, it is not mandatory, but only directory in view of the ratio laid down in Nand Kishore Rai & Another Vs. Mst. Bhagi Kuer & Others, AIR 1958 Allahabad 329, wherein it has been held that it is merely an irregularity within the meaning of Section 99 of the CPC and it is never fatal.

9. So far as the sound disposing state of mind of the testator is concerned, it is argued that the same testator had executed three gift deeds in favour of the respondents in the very same year i.e. 17.07.2001, whereas the WILL was executed on 21.04.2001. Therefore, it cannot be contended by the respondents that the testator was in a sound state of mind to execute the gift, but not the WILL.

10. It is submitted by learned senior counsel for the appellant that, in this case no executor has been appointed in the WILL, rather the application has been filed by the beneficiary herself, therefore, the case is fit to be remanded in view of the ratio laid down by the Hon'ble Apex Court in (Smt.) Urmila Agarwala Vs. Lav Kumar Agarwal & Others, 2004 SCC OnLine (Jhar) 705 with liberty to make proper amendment in the probate application.

11. It is argued by learned counsel on behalf of respondents that propounder of the WILL namely Sudha Devi took active part in preparation of WILL and had also paid for part of stamp duty and other expenses as deposed by P.W. 3 in para 36. It is argued that in para 36, P.W. 3 stated that stamp paper on which the WILL was written, was purchased by her and was written and the WILL was drawn at her instance by her father and at that time, his age was about eighty years. The scribe of the WILL (P.W. 4) has deposed in para 9 that the cost of getting the WILL registered, was borne by testator and propounder jointly. He has however expressed his ignorance about the amount separately spent by each. By citing these evidences, it is argued that these are the circumstances which raises suspicion on the WILL being freely executed by the testator or not?

ANALYSIS

12. On perusal of the WILL (Exhibit 3), I find, that the executor has not been named in the WILL. However, this is a case where the said registered WILL was executed on 21.04.2001 and, therefore, it will not be for the ends of justice to relegate the matter to the Probate Court by way of an order of remand at this stage. Either it is a case of probate of WILL, or grant of Letter of Administration, adjudication is to be on the genuineness of WILL. Difference is in form and not in content. In case of WILL, probate is granted and where there is no executor named in the WILL, Letter of Administration is issued. Therefore, instead of remanding the case, this Court will be considering the appeal on its merit.

13. At the outset, it is to be noted that a Probate Court is not competent to determine the title of schedule property. The jurisdiction of a Probate

Court is limited to determination, that the WILL executed by the testator, was his last WILL. Whether he had right to execute the WILL with respect to the schedule property is beyond the scope of adjudication while deciding an application for probate of a WILL or a Letter of Administration.

14. With regard to proof of a WILL, the law is well settled that the mode of proving a WILL does not ordinarily differ from that of proving any other document, except as to the special requirement prescribed in the case of a WILL by Section 63 of the Indian Succession Act read with Section 68 of the Evidence Act. The onus of proving the WILL is on the propounder and in the absence of suspicious circumstances surrounding the execution of the WILL, proof of testamentary capacity and signature of the testator as required by law is sufficient to discharge the onus. Where, however there are suspicious circumstances, the onus would be on the propounder to explain to the satisfaction of the Court, before the WILL could be accepted as genuine. Such suspicious circumstances may be a shaky signature, a feeble mind and unfair and unjust disposal of property under which he receives a substantial benefit. The presence of suspicious circumstances makes the initial onus heavier and the propounder must remove all legitimate suspicion before the document can be accepted as the last WILL of the testator. [See Guro (Smt) v. Atma Singh, (1992) 2 SCC 507 at page 511].

15. Further, a WILL is not required to be registered, and even if it is registered, requirement of Probate of WILL is not dispensed with. However, where a WILL is registered, like any other document, there will be a presumption of fact under Section 114 (g) of the Evidence Act arises in favour of its due execution. It has been held in Abdul Rahim v. Sk. Abdul Zabar, (2009) 6 SCC 160 that a registered document carries with it a presumption that it was validly executed. It is for the party questioning the genuineness of the transaction to show that in law, the transaction was not valid.

16. In the present case, it is not in dispute that testator-Munshi Mahto @ Bhikhi Mahto had four daughters- Gulab Devi (defendant no.1), Girija Devi [mother of defendant nos.2(a)(b)&(c)], Sudha Devi (plaintiff/applicant) and

Dhaneshwari Devi (defendant no.3). It is also not in dispute that testator- Munshi Mahto had executed registered deed of gift bearing no.540 dated 18.01.1991, and 4385, 4386, 4387 dated 17.07.2001 in favour of opposite parties/defendants (Exhibit A, A/1, A/2 and A/3). Title Suit No.12/2002 filed by Munshi Mahto @ Bhikhi Mahto impleading Baidyanath Mehta and others for declaration that the deeds of gift bearing nos.4385, 4386 & 4387 dated 17.07.2001 was null and void, was dismissed on contest and Title Appeal No.2/2006 against the said judgment was dismissed vide judgment dated 25.10.2008 (Exhibit C/1).

17. The instant case has been filed for probate of registered WILL executed on 21.04.2001 i.e. before the date of the execution of the deed of gift in favour of the respondents/defendants. Execution of a WILL is effective not from the date of its execution, but the date of death of the testator, on the said WILL being duly probated. A WILL takes effect on the death of the executant and during his lifetime, is an ambulatory document, revokable at any moment, having no legal effect (see Hubert P. James Vs. Gulam Hussain Pakseema, AIR 1949 Privy Council 151).

18. As discussed above, whether the testator had right and title over the schedule property for which the WILL had been executed, is beyond consideration while adjudicating the genuineness of the WILL. Therefore, the issue if the part or whole of the schedule property for which the WILL was executed, had already been transferred by way of the registered deed of gift, is not germane for determining the genuineness of the WILL.

19. What is significant to note, is the registered WILL was executed by the testator on 21.04.2001, and the registered deed of gift was executed by him only three months after on 17.04.2001. Therefore, to contend that the testator was not in a sound disposing state of mind, cannot be accepted. It was the opposite parties/defendants on whose favour the gifts were executed and therefore, it cannot be contended on their part that gift was validly executed, but the WILL was not.

20. The nature of relationship of the testator and the beneficiary as well as the opposite parties do not raise any suspicious circumstance. The WILL

was executed in favour of one of the daughters, whereas the gift in favour of the others. The disposition of property in this manner by the Testator, dispels the plea of any unjust disposal of property.

21. The very fact that the testator had filed Title Suit No.12/2002 against the defendants/respondents for declaring the gift deeds to be null and void and illegal, speaks volumes about his intent that no love was left between the Testator and the Respondents.

22. This show that the testator had made a conscious choice of executing the WILL in favour of the applicant/appellant and there was nothing suspicious in execution of the registered WILL. On the contrary, as discussed above, there was presumption of due execution in favour of the registered WILL.

23. Against these background facts, learned Probate Court erred in shifting the onus on the applicant/appellant. It is settled that any and every circumstance, is not a suspicious circumstance. Even in a case where active participation and execution of the WILL by the propounders/beneficiaries is shown, this by itself not sufficient to create any doubt about the genuineness of the WILL. In case, the person attesting the WILL alleges undue influence, fraud or coercion, the onus will be on him to prove the same [See Smt. Malkani Vs. Jamadar & Others, AIR 1987 SC 767]. I find force in the argument advanced on behalf of the appellant that where a WILL is duly registered, the same cannot be vitiated for its non-verification under Section 281 of the Indian Succession Act.

24. In the present case (Title Suit No.2/2008), WILL has been duly proved (Exhibit 3) by attesting witness- Chhoti Mahto (P.W. 1) and Kartik Mahto (P.W. 2). Both these witnesses have deposed that the testator-Munshi Mahto had affixed his L.T.I. on the WILL by his own volition in favour of the beneficiary- Sudha Devi. There is nothing in the cross-examination to disbelieve their account. Under the circumstance, this Court is of the view that the applicant/appellant has proved the due execution of the WILL in her favour. The impugned order is accordingly, set aside.

25. Learned Probate Court is accordingly directed to issue Letter of Administration in favour of the appellant with respect to the WILL dated 21.04.2001 (Exhibit 3) executed by Munshi Mahto @ Bhikhi Mahto.

26. M.A. No.32 of 2012 is allowed. Interlocutory Application, if any, is disposed of.

27. So far S.A. No.15 of 2009 is concerned, let it be listed before the appropriate Bench having its roster.

(Gautam Kumar Choudhary, J.) NAFR/Anit