Jharkhand High Court
Madan Kumar vs Shanti Devi W/O Shri Pramod Kumar Sahu on 11 November, 2025
Author: Gautam Kumar Choudhary
Bench: Gautam Kumar Choudhary
2025:JHHC:33698
IN THE HIGH COURT OF JHARKHAND AT RANCHI
M. A. No. 216 of 2018
Madan Kumar, S/o Late Prahlad Saw and Late Pushpawati Sahu, R/o
Adarsh Colony, Gour Basti, Mango, P.O. & P.S.-Mango, Town Jamshedpur,
Dist.-East Singhbhum .... .... Appellant
Versus
1. Shanti Devi W/o Shri Pramod Kumar Sahu, Daughter in law of Late
Prahlad Saw and Late Pushpawati Sahu, R/o Adarsh Colony, Gour Basti,
Mango, P.O. & P.S.-Mango, Town Jamshedpur, Dist.-East Singhbhum
2. General Public of Adarsh Colony Gour Basti, P.O. & P.S.-Mango, Dist.-
East Singhbhum
3. Binod Kumar Sahu, S/o Late Prahlad Saw and Late Pushpawati Sahu,
R/o Adarsh Colony, Gour Basti, Mango, P.O. & P.S.-Mango, Town
Jamshedpur, Dist.-East Singhbhum
4. Smt. Saroj Devi, D/o Late Prahlad Saw and Late Pushpawati Sahu, W/o
Sarad Choudhary, R/o Adarsh Colony, Gour Basti, Mango, P.O. & P.S.-
Mango, Town Jamshedpur, Dist.-East Singhbhum
5. Lalita Devi, W/o Late Ram Bilash Gupta, D/o Late Pushpawati Sahu, R/o
Gurudwara Road, Mango, P.O. & P.S.-Mango, Dist.-East Singhbhum,
Jharkhand
6. Radha Devi, W/o Arbind Sahu, D/o Late Pushpawati Sahu, R/o Mire
Bazar, P.O. & P.S.-Mire Bazar, Dist.-Kanpur, U.P.
.... .... Respondents
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CORAM: HON'BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY
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For the Appellant : Mr. Prabhash Kumar, Advocate
Mr. Manish Sharma, Advocate
Mr. Ganesh Ram, Advocate
For Respondents : Mr. Akshay Kr. Mahto, Advocate
Mr. Kshitish Ch. Mahato, Advocate
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Oral Order
10 / Dated : 11.11.2025
1. The instant Misc. Appeal has been filed under Section 299 of the Indian
Succession Act against the order dated 21.02.2018 passed by learned
District Judge-IV, Jamshedpur, in Original Suit No.04 of 2015 (arising
out of Probate Case No.12 of 2014), whereby and whereunder, probate
has been granted with respect to the registered WILL dated 08.04.2009
executed by Late Pushpawati Sahu in favour of Shanti Devi
(Respondent No.1).
2. A preliminary objection has been raised on behalf of the respondent(s)
regarding the maintainability of the instant Misc. Appeal under Section
299 of the Indian Succession Act.
3. It is contended that since the matter proceeded as a suit, therefore, First
Appeal will lie and not a Misc. Appeal as Section 299 of the Indian
2025:JHHC:33698
Succession Act speaks about the application of CPC in hearing the
appeals. Reliance in this regard is placed on 2017 SCC OnLine Pat
3960 [Kusheshwar Purbey & Ors. Vs. Shri Shri 108 Ram Janaki
Jee S & Ors.] wherein it has been held that the First Appeal will lie
against the judgment delivered in a testamentary suit and not Misc.
Appeal.
4. I find force in the argument advanced on behalf of learned counsel for
the appellant that for an appeal to be maintainable under Section 96 of
the CPC, it should be preferred against the judgment and decree which
reads as under:
"Appeal from original decree.
(1) Save where otherwise expressly provided in the body of this
Code or by any other law for the time being in force, an appeal shall
lie from every decree passed by any Court exercising original
jurisdiction to the Court authorized to hear appeals from the
decisions of such Court.
(2) An appeal may lie from an original decree passed ex parte.
(3) No appeal shall lie from a decree passed by the Court with the
consent of parties.
(4) No appeal shall lie, except on a question of law, from a decree
in any suit of the nature cognizable by Courts of Small Causes,
when the amount or value of the subject-matter of the original suit
does not exceed ten thousand rupees".
Further, decree has been defined under Section 2(2) of the CPC which
reads as under:
"Decree' means the formal expression of an adjudication which,
so far as regards the Court expressing it, conclusively determines
the rights of the parties with regard to all or any of the matters in
controversy in the suit and may be either preliminary or final. It
shall be deemed to include the rejection of a plaint and the
determination of any question within section 144, but shall not
include-
a. any adjudication from which an appeal lies as an appeal from
an order,
b. any order of dismissal for default.
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Explanation -A decree is preliminary when further proceedings
have to be taken before the suit can be completely disposed of.
It is final when such adjudication completely disposes of the
suit. It may be partly preliminary and partly final."
5. A Probate Application is converted into Testamentary Suit, on contest
under Section 295 of the Indian Succession Act, but it is not a change
in the nature of grant pursuant to the final order. After the lis is decided
in a testamentary suit a decree is not made, rather a probate is granted.
Therefore, this Court is of the view that since the final order passed in
a Testamentary Suit, probate and not a decree is granted, therefore a
Miscellaneous Appeal under Section 299 of the Succession Act will be
maintainable and not a First Appeal under Section 96 of the C.P.C.
6. Now coming to the merit of the present appeal, it is argued that the
typist of the WILL has not been examined. Plaintiff has admitted in her
cross-examination that schedule property was recorded in the recent
survey in the name of the state of Bihar. Further, in para 15 of a
deposition it has been deposed that she did not remember the date of
execution of the WILL. It has also been admitted that defendant being
the elder brother of plaintiff's husband was residing in the same house.
The WILL was executed on 01.04.2009, whereas it was registered on
08.04.2009 that is after seven days.
7. Learned counsel appearing on behalf of the opposite party has defended
the impugned order.
8. It has been rightly noted by the learned trial court that question of title
is beyond consideration in a probate case. The jurisdiction of the
probate court is limited to consider the genuineness of the WILL, and
not the title of property for which the probate application has been filed.
As the title is not in issue, therefore the nature of land is beyond
consideration. The attesting witness PW2 has formally proved the
WILL in terms of Section 63 of the Indian Succession Act, 1925 and
Section 68 of the Indian Evidence Act.
It has been held in Guro (Smt) v. Atma Singh, (1992) 2 SCC 507 at
page 511:
"3. 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
2025:JHHC:33698
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. 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 were suspicious
circumstances, the onus would be on the propounder to explain
them 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 or the propounder himself taking a leading part in the
making of the will 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".
9. There is a presumption in favour of due execution of a registered
instrument. A WILL is not required to be registered, but once it is so
registered, unless and until the presumption is rebutted and attesting
witness has been examined as in the present case, a probate can be
granted unless there is some suspicious surrounding circumstance that
raises on its due execution. Points raised at the Bar during course of
argument are extraneous to the issue to be considered by a Probate
Court.
I do not find any infirmity in the impugned order.
Miscellaneous Appeal is, accordingly, dismissed. Pending I.A., if
any, stands disposed of.
(Gautam Kumar Choudhary, J.)
Satendra
Uploaded
13.11.2025
