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Judgment
This appeal has been preferred against the judgment and
order dated 03.03.1997 passed by Sri Bihari Pandey, the then Ist
Additional District Judge, Chapra in Probate Case No. 20 of 1986
whereby and whereunder the Probate Case was held to be
premature and not maintainable and accordingly, the probate case
was dismissed without cost.
Probate Case No. 20 of 1986 was filed by the
Petitioners Sri Gulabi Kuer and others for granting Probate or
Letters of Administration in respect of Will dated 11.06.40
executed by Ganesh Singh deceased in favour of his daughter-in-
law Kishunpari O. P. No. 1 and the ancestors of the petitioners. At
the foot of the petition genealogical table has been given from
which it reveals that Barahmdatt Singh common ancestor of both
the parties had 3 sons Bisheshwar Singh, Ramashankar Singh and
Sheo Shankar Singh. Sheo Shankar Singh had a son namely,
Ganesh Singh the Testator. Ganesh Singh had two sons namely,
Hardeo singh and Bashishtha Singh. Both of them pre-deceased
their father issueless. O. P. No. 1 Kishunpari was the widow of
Bashishtha Singh and daughter-in-law of Ganesh Singh the
Testator. The petitioners and O. P. No. 2 to 4 are the descendants
of other branch of Bisheshwar Singh and Ramashankar Singh.
Ganesh Singh executed registered Will dated 11.06.40 in respect
of his entire properties in favour of Mostt. Kishunpari O. P. No. 1
and Babu Srikant Singh, Kapildeo Singh, Parmeshwar Singh,
Madho Singh, Bageshwar Singh, Jagannath Singh, Ramkant Singh,
Basdeo Singh and in the Will Ganesh Singh had given limited right
to Kishunpari to utilize the usufruct of the property till her life
time. The certified copy of Will was filed with the petition. It is said
that the original Will remained in custody of Kishunpari who now
says that the same is misplaced or lost. Ganesh Singh died in the
year 1942 in the life time of all the legatees. When the probate
case was filed only the petitioner legatees Basdeo Singh and Nand
Lal Singh were alive, later on both also died and have been
represented by their legal heirs. Other petitioners are also legal
heirs of original legatees. The petitioners have given the details of
the properties under Will in annexure-A of the petition. Prayer has
been made for granting Probate or Letters of Administration.
The Opposite parties have resisted the claim of the
petitioner by filing the Caveat contending that the probate case is
not legally maintainable. The petitioners have no right to file the
probate case during the life time of legatee Mostt. Kishunpari O. P.
No. 1 who is still alive. The petitioners have got no cause of action
for filing the petition for probate and they have got no locus standi
to institute the case. The Testator Ganesh Singh was absolute
owner of his properties. Ganesh Singh executed a registered deed
of gift dated 08.06.40 in favour of Smt. Kishunpari in respect of
the properties mentioned in Schedule A to this caveat and he put
Kishunpari in possession of the same and she had been coming in
possession after having accepted the gift and after three days of
deed of gift the testator again executed a registered Will on
11.06.40. In the Will it is provided that O. P. No. 1 Kishunpari
would at the first instance get the entire properties existing at the
time of testator''s death as limited owner under the then
Mitakshara System of Hindu Law. Further it has been provided that
the Legatees Srikant Singh and others or their heirs were given an
estate which could only come in existence after the death of Mostt.
Kishunpari, prior to that they have no locus standi to prefer any
claim as Kishunpari is still alive, so filing of this case by the remote
legattes does not arise. As per terms of the Will, Kishunpari was in
possession of the properties under Will as limited owner and she
became absolute owner after passing of the Hindu Succession Act,
1956 and as such she executed the registered deed of gift in
favour of O. P. No. 2 and 3 on 12.06.83 and put in possession and
accordingly, mutation was done hence, the probate case is fit to be
rejected.
The learned Trial Judge on the basis of pleadings of
both the parties framed the following issues:
(i) Is the probate case maintainable in the law ?
(ii) Have the applicants got cause of action to
institute the case and pursue the same as such
?
(iii) Have the applicants got locus standi to get the
Will probated in the case and are entitled to a
Probate or to Letters of Administration as
prayed for ?
(iv) Is the Will in question genuine and valid ?
The learned Trial Judge decided the issue No. (iv) at
first and on the basis of admission of the parties held that the Will
in question is genuine and valid. Issue Nos. (i) (ii) and (iii) were
decided thereafter and came to the conclusion that the probate
case is not maintainable in the life time of Kishunpari. The
applicants have got no cause of action to institute the case and
pursue the same and further they have got no locus standi to get
the Will probated in the case and they are not entitled to a
Probate or Letters of Administration as prayed for and accordingly,
dismissed the probate case without cost.
The petitioners being aggrieved and dissatisfied with
the said judgment and order preferred this appeal challenging the
legality, correctness and propriety of the same on the grounds
that the right of Kishunpari and of the petitioners emerged from
the same Will, which is still unprobated. The right of Kishunpari
Kuer and the petitioners is depending on the Will in question being
probated and it is only after the probate and Will that even
Kishunpari Devi can acquire a life estate, thus, the prayer for
grant of probate could not have been refused by the court below.
Learned Senior Counsel for the appellants arguing in this appeal
has submitted that under Section 119 of Indian Succession Act the
right become vested in the legatee on the testator''s death, and
shall pass to the legatee''s representatives if he dies before that
time and without having received the legacy, and in such cases
the legacy is from the testator''s death said to be vested in
interest. The learned counsel has cited illustration (iii). Further it
has been argued that a Testamentary Court is only concerned with
finding out whether or not the testator executed the testamentary
instrument out of his free will. It is settled law that the grant of a
Probate or Letters of Administration does not confer title to
property. They merely enable Administration of the estate of the
deceased. Thus, it is always to a person to dispute title even
though Probate or Letters of Administration has been granted.
Here the Will in question has not been doubted by anyone and it
has been held to be genuine, so, the learned court below erred in
law that in the life time of Kishunpari, the petitioners have got no
right to file the probate case and to continue the same. Learned
counsel has relied upon a judgment reported in (2003) 7 SCC
page 301 (Para 8) in the matter of Delhi Development
Authority .appellant vs. Vijaya C. Gurshaney (Mrs.) and
another....respondent. Learned counsel has further argued that
during the pendency of this appeal Kishunpari also died and as
such now the appellants are entitled for Probate or Letters of
Administration. The learned court below has erred in holding
otherwise. The court of Probate is only concerned with the
question as to whether the document put forward is the last Will
and testaments of a deceased person was duly executed and
tested in accordance with law and whether at the time of such
execution the testator had sound disposing mind and for that
reliance has been placed upon a judgment reported in AIR 1954
S.C. 280 (Vol. 41 C.N. 67) (para 2) in the matter of
Ishwardeo Narain Singh...Appellant v. Smt. Kamta Devi and
others...Respondents . Learned counsel has further argued that
in the same Will Kishunpari was given limited right till her life after
the death of Testetar and other legatees were given right after the
death of Kishunpari. So, after the death of Testator all will acquire
right simultaneously so in the life time of Kishunpari also the
petitioners were entitled for probate. Reliance has also been
placed upon a judgment reported in AIR 1996 Supreme Court
page 2260 (Para 16 to 18) in the matter of Usha Subbarao..
Appellant V. B. E. Vishveshariah and others..Respondents.
Learned court below by virtue of being of a court of
limited jurisdiction had no right to decide the right, title and
interest of the appellants vis a vis kishunpari or her donees. The
learned court below had no jurisdiction to refuse to grant of
probate on the ground of pre maturity. The learned court below
has failed to appreciate that a limited right of widow doest not
perfect into an absolute if the said right has accrued to her by
virtue of a Will or a gift and Kishunpari Kuer still held a limited
estate and she has no right to execute the deed of gift nor donee
acquire a right within it.
Learned Senior counsel for the respondents, on the
other hand, submits that in this case in the life time of Kishunpari
Kuer, the petitioners have got no right and locus standi to file the
probate case and as such the learned court below has rightly
dismissed the case. The judgment and order of the learned court
below is quite legal and valid. From bare perusal of the registered
deed of Will it is evident that after the death of testator,
Kishunpari was given right to administer the estate till her life so
in her life time no probate can be granted in favour of other
petitioners. Death of Kishunpari during pendnecy of this appeal
has not changed the locus standi of the petitioners because here
the judgment and order of learned court below is to be tested.
After the death of Kishunpari the appellant ought to have filed
another probate case and for challenging the legality and
correctness of the deed of gift executed by Kishun kuer they ought
to have been filed a separate title suit. Probate court has got
limited jurisdiction and there title cannot be decided. The
arguments advanced by learned counsel for the appellants are
academic. Here, limited question is as to whether in the life time
of kishunpari the petitioners were entitled for probate or Letters of
Administration and the learned court below has rightly held that in
the life time of Kishunpari Kuer the petitioners have got no right
and locus standi to file case for grant of probate.
The only point for consideration is as to whether in
the life time of Kishunpari the applicants have got any right or
locus standi to get the Will probated in the case and whether were
entitled to a Probate or Letters of Administration.
FINDINGS:-
The petitioners have examined two witnesses, AW 1
Ragho Singh, one of the petitioners, has supported his case and
proved the certified copy of Will which has already been marked as
Ext. 1 on admission. AW 2 Parsuram Prasad Singh is petitioner no.
He has proved several rent receipts which have been marked as
Ext. 2 series.
Opposite parties have examined 5 witnesses. OW 1 is
Kishunpari examined on commission. She has supported her case.
OW 2 is Ram Ayodhya Mishra, a formal witness, and has proved
several rent receipts marked as Ext. A to A/36. OW 3 Parshuram
Singh is also a formal witness. He has proved rent receipts
marked as Ext. A/37 to A/39. OW 4 Suman Prasad Singh is
opposite party no. 3. He has supported his case. OW 5 is Sheoji
Singh. He has proved the gift deed executed by Kishunpari in
favour of Suman Prasad and Damayanti O. P. No. 3 and 4. This gift
deed has been marked as Ext. B. Ext. A/40 to A/43 are 3 rent
receipts. Ext. B/1 is the gift deed dated 08.06.1940 executed by
Ganesh Singh. Ext. C is the notice of C.O. in favour of Kishunpari
for payment of loan. Ext. C/1 is the notice of Kishunpari from co-
operative bank to pay the loan. Ext. C/2 is the notice to Kishunpari
issued by District magistrate, Chapra for payment of loan. Ext. C/3
is the notice of Land Development Bank for payment of loan. Ext.
D series are receipt of co-operative bank in the name of
Kishunpari. Ext. E series are chaukidari receipts. Ext. F is the
certified copy of judgment dated 24.01.47 in L.A.R. No. 173/A,
302/B, 303/B, 306/B of 1944-45. Ext. F/1 is the certified copy of
judgment in Rent Suit No. 71/53 dated 27.02.45. Ext. F/2 is the
certified copy of judgment in Suit no. 108 of 22/1945 dated
28.06.46. Ext. G is the order of C.O., Manjhi dated 21.02.19874
and Ext. H series are challan. Ext. I is Neelami Isthehar. Ext. 1 is
the certified copy of deed of Will which has been marked on
admission.
From plain reading of Will in question it is clear that
the terms of Will is that so long as the Testator will remain alive,
he will remain in possession of the property as owner and after his
death Most. Kishunpari will possess the property as a limited
owner and after her death the other legatees, the ancestors of the
petitioners, will come in possession of the property. At the time of
judgment of Probate Case No. 20/86 Kishunpari was alive, hence,
the petitioners are remote legatees having no locus standi to file
the Probate Case and their petition was premature. As per the
terms of the Will, Most. Kishunpari was the limited owner and as
such she came in possession of her property after death of
Testator Ganesh Singh and as such in her life time Probate Case
filed by the petitioners was not maintainable. The argument
advanced by learned counsel for the petitioners are not
maintainable in the present case. Admittedly, Kishunpari had got
life estate in the proprieties of Testator Ganesh Singh. In the life
time of kishunpari the petitioners have no locus standi to file the
petition for grant of Probate or Letters of Administration, as
according to the terms of Will, other legatees will come in
possession of the property after the death of Kishunpari. The
petitioners have pleaded that Kishunpari has admitted herself as
absolute owner and executed gift in favour of O. P. NO. 2 and 3
hence, they have filed their probate case seeking Probate or
Letters of Administration. The learned court below has found that
this cannot be a ground for seeking grant of Probate or Letters of
Administration . The remedies are available to the petitioners, they
can file separate suit for setting aside the gift deed executed by
kishunpari in favour of O. P. No. 2 and 3 claiming their vested
interest in the property. I am also of the opinion that the remedy
lies in filing separate suit for setting aside the gift deed executed
by kishunpari in favour of o. P. No. 2 and 3 and in probate case all
these things cannot be adjudged.
Considering these facts, I also hold that the petition
filed by the petitioners seeking grant of probate is premature.
Hence, it is not tenable and the point is decided accordingly. In the
result, the finding of the learned court below is hereby affirmed
and finding no merit in this appeal, the same is hereby dismissed
on contest but under the circumstances without cost.