Basant Gope And Others vs Mohan Mahto And Others

Ambuj Nath, J

Heard Mr. Rohit Roy, learned counsel appearing for the petitioners and Mr. R. K. Dev, learned Advocate appearing on behalf of the respondents.

The petitioners have filed this writ petition for quashing of order dated 08.12.2017, passed by learned Judicial Commissioner, Ranchi in Transfer Petition Case No. 13/2017, whereby and wherein the learned Judicial Commissioner, Ranchi transferred letters of Administration Case No. 91/2015 from the court of learned Additional Judicial Commissioner-XI, Ranchi to the court of learned Sub-Judge-I, Ranchi for instituting the said letters of Administration cases as civil suit.

The respondent no.1, Mohan Mahto had filed a L.A. Case No. 91 of 2015 under section 278 of the Indian Succession Act, 1925 for declaration that the will executed by the testatrix Dashmi Devi was her last will which was duly executed and attested in accordance with law.

The petitioners were the opposite parties no. 1 to 4 in L.A. Case No. 91 of 2015. In the aforesaid L.A. case, the petitioner appeared on notice and challenged the genuinity of the will on the ground that the will of Dashmi Devi was forged and fabricated. It was pleaded that Dashmi Devi died in the year 1981 and the letter of administration case was filed after a lapse of 34 years. It was also pleaded that the property which is the subject matter of the will of Dashmi Devi was in the name of her husband and in partition suit no. 303 of 2006 which was contested by the petitioners and father of respondent no. 1. The property which is subject matter of will of Dashmi Devi was allotted to the share of the petitioners.

As the petitioners had appeared and contested the genuinity of the will. The L.A case was converted into original testamentary suit, and the same was transferred to the court of learned Additional Judicial Commissioner-XI, for needful.

The respondent no. 1, Mohan Mahto filed a transfer petition in the court of learned Judicial Commissioner, Ranchi vide Transfer Petition Case No. 13 of 2017 praying that the L.A. Case No. 91 of 2015 may be transferred to any other court of competent jurisdiction as he has lost confidence in Additional Judicial Commissioner-XI,Ranchi.

The Judicial Commissioner, Ranchi by order dated 08.12.2017 transferred L.A. Case No. 91 of 2015 to the court of learned Sub-Judge, I Ranchi holding that there was dispute regarding the property which was bequeathed to the respondent no. 1 by the testatrix Dashmi Devi which could be decided only in a title suit.

Once the probate case or later on Administration case is contested, the same has to be converted into original testamentary suit. The nature of the suit does not change. Section 264 (1) of the Indian Succession Act, 1925 provides that the District Judge shall have jurisdiction in granting and revoking probate and letters of administration in all cases within his district. Once the probate case or letter of Administration case is contested, the same has to be converted into original testamentary suit but the nature of testamentary suit does not change. The District Judge has to decide the genuinity of the will even in the original testamentary suit considering the fact that the will in question was the last will of the testator and also considering the fact that the testator was of sound mind and it was duly attested by witnesses and properly executed.

The learned Judicial Commissioner, Ranchi while transferring the L. A. Case No. 91 of 2015 to the court of learned Sub-Judge-I, Ranchi has relied upon a decision of this court passed in Nakul Bedia and Anr. Vs Union of India, through Secretary, Ministry of Surface Transport and Ors. reported in (2016) 4 JLJR, 41 by coming to a conclusion that District Judge was not competent to determine the title of the suit property which can be determined only by a court of Sub Judge or by a Munsif depending upon the pecuniary valuation of the suit property.

In Chiranjilal Shrilal Goenka vs Jasjit Singh and others reported in (1993) 2 SCC 507. The Hon’ble Supreme Court has held that the court of probate is only concerned with the question as to whether the document forwarded was last will and testament of deceased person and was duly executed and attested in accordance with law and whether at the time of such execution, the testator has sound disposing mind. The only issue before the probate court is, in a probate proceedings relates to the genuineness and due execution of the will and the court itself is under duty to determine and preserve the original will in its custody. The Hon’ble Apex Court finally held that probate court does not decide any question of title or any existence of the property itself.

The learned Judicial Commissioner Ranchi, while transferring the present case to the court of learned Sub Judge-I, Ranchi to decide the suit as a title suit has come to an erroneous conclusion. The question whether the testatrix had right title and interest over the bequeathed property had to be decided by a court of competent jurisdiction but not by the probate court.

Considering the aforesaid facts, the impugned order dated 08.12.2017 passed in Transfer Petition Case No. 13 of 2017 is set aside The learned Judicial Commissioner Ranchi shall recall the file of L. A. Case No. 91 of 2015 to his own file and dispose of this L.A. case as expeditiously as possible within 6 months from the date of receipt of this order.

This writ petition is allowed.