Patna High Court
Keshav Prasad Alias Khesho Prasad And ... vs Manoj Kumar Verma @ Banarshi Verma And ... on 11 January, 2024
Author: Arun Kumar Jha
Bench: Arun Kumar Jha
IN THE HIGH COURT OF JUDICATURE AT PATNA
CIVIL MISCELLANEOUS JURISDICTION No.658 of 2017
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1. Keshav Prasad Alias Khesho Prasad Son of Late Jagdish Prasad,
2. Tetri Devi, wife of Keshav Prasad alias Khesha Prasad, Both resident of
Mohalla- Nathuni Ka Bag, P.S.- Dumraon, District- Buxar.
... ... Petitioner/s
Versus
1. Manoj Kumar Verma @ Banarshi Verma Son of Baban Prasad, resident of
Mohalla Nathuni Ka Bag, P.S.- Dumraon, District- Buxar.
2. Baban Prasad, Son of Late Jagdish Prasad, resident of Mohalla- Nathuni Ka
Bag, P.S.- Dumraon, District- Buxar.
... ... Respondent/s
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Appearance :
For the Petitioner/s : Mr. Arun Kumar, Advocate
For the Respondent/s : Mr.
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CORAM: HONOURABLE MR. JUSTICE ARUN KUMAR JHA
ORAL JUDGMENT
Date : 11-01-2024
Heard learned counsel for the petitioners and I intend
to dispose of the matter at the stage of admission itself.
2. The petitioners have filed the instant petition
against the order dated 8th of February, 2017, passed by learned
Additional District & Sessions Judge-V, Buxar in Title Suit No.
(Probate Case No. 15 of 2013), by which, learned Additional
District & Sessions Judge-V, Buxar has rejected the petition
filed on behalf of the petitioners, in which prayer was made for
dismissing the probate case as not maintainable.
3. The facts of the case, as it appears from the record,
are that respondent 1st party filed Probate Case No. 27 of 2017
Patna High Court C.Misc. No.658 of 2017 dt.11-01-2024
in the Court of learned Sub-Judge-1st, Buxar on the basis of will
dated 31st of January, 2011, said to have been executed by one
Jagdish Prasad in respect of the land detailed in schedule-1 of
the probate petition. The said probate case has been pending in
the Court of learned Additional District Judge-V, Buxar vide
Title Suit No. 15 of 2013 wherein the petitioners filed their
written statements submitting therein that the probate case is not
maintainable.
4. The further case of the petitioners is that Jagdish
Prasad had two sons, namely, Baban Prasad and Keshav Prasad
and there had been partition between them. The partition deed
was prepared on 18th of April, 1984, in which the land under the
will fell in the share of Jagdish Prasad, who gifted the same in
favour of petitioner no.2, wife of Keshav Prasad, vide registered
deed of gift dated 30th of October, 1987. After receiving the
gifted property, petitioner no.2 was coming in possession over
the same. Later on, Baban Prasad filed a partition suit bearing
No. 64 of 1997 against his father and brother Keshav Prasad in
the Court of learned Munshif-1st, Buxar in which Jagdish
Prasad appeared and filed his written statement saying that the
land in question was in his share on the basis of partition which
had already taken place and he had gifted the same in favour of
Patna High Court C.Misc. No.658 of 2017 dt.11-01-2024
petitioner no.2, Tetri Devi vide a registered deed of gift and had
also handed over the possession. The aforesaid suit was
dismissed as withdrawn. Thereafter, Baban Prasad filed a
different suit bearing No. 09 of 2010 for setting aside the deed
of gift dated 30th of October, 1987, which was also dismissed by
learned Munsif, Buxar vide order dated 31st of March, 2011,
against which a miscellaneous appeal bearing No. 14 of 2011
was filed, which was also dismissed by learned District Judge,
Buxar vide order dated 8th of October, 2012. Thereafter,
respondent no.1, Manoj Kumar Verma, filed a Civil Writ No.
1493 of 2013 in this Court, which was dismissed on 5 th of
January, 2016. Respondent no.1 had also got executed a will on
31st of January, 2011 in respect of land already gifted in favour
of petitioner no.2 and on the basis of the same, respondent no.1
filed Probate Case No. 27 of 2012, which is pending in the
Court of learned Additional District Judge-V, Buxar under Title
Suit No. 15 of 2013. The petitioners filed a petition in the said
court on 3rd of February, 2016 stating that the probate case is not
maintainable in view of the disposal of the earlier suit and order
passed by this Court in C.W.J.C. No. 1493 of 2013. The said
application was rejected by learned Additional District Judge-V,
Buxar vide order dated 8th of February, 2017. The said order is
Patna High Court C.Misc. No.658 of 2017 dt.11-01-2024
under challenge here.
5. Learned counsel for the petitioners submits that the
order of learned Subordinate Court is wrong and illegal as the
learned Court below did not take into consideration the fact that
when the land had already been gifted, the testator had got no
further right to will the same property. Learned counsel further
submits that the gift deed has been confirmed in favour of
petitioner no.2 up to this Court and the same subject matter was
also the subject matter of the will, hence, the probate case is not
maintainable.
6. Perused the record.
7. I have given my thoughtful consideration to the
submissions made on behalf of the petitioners. It is settled law
that when a will is put up for probate, the Court considering that
will has only to see its genuineness and it cannot decide title and
rights over the property mentioned in the will. It cannot go into
the fact as to whether the testator has got any right over the
property, which is the subject matter of the will. The jurisdiction
of the Court, looking into the probate matter, is limited, since it
has only to see that whether the will was a genuine document
duly executed and attested in accordance with law and whether
at the time of such execution, the testator was in his sound mind
Patna High Court C.Misc. No.658 of 2017 dt.11-01-2024
and execution was without any force, fraud, coercion or undue
pressure. Probate Court does not decide any question of title
over the subject matter of property in will or even the existence
of such property itself.
8. In the light of discussions made hereinabove, I do
not find any infirmity in the impugned order and the same is
affirmed.
9. Accordingly, the present petition stands dismissed.
(Arun Kumar Jha, J)
Amrendra/-
AFR/NAFR AFR
CAV DATE N/A
Uploading Date 16.01.2024
Transmission Date N/A
