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Validity of issue of Title and /or ownership in Probate Proceedings/ testamentary suit

Validity of issue of Title and /or ownership in Probate Proceedings/ testamentary suit

In various probate proceedings, after the conversion of a probate application into a testamentary suit, the objector raises issue of title and/or ownership of the property or the existance of the property itself and claim the same to be decided by the trial court by framing issues to that effect. The correct answer to this question has bben decided by various Hon’ble High Courts as well as the Hon’ble Apex Court as follows.

1)    In the case of Maltivij v/s Kalindivij reported in 1993(0)GLHEL-HC 207317  Hon’ble High Court of Gujarat Court has laid down in pera-24 that “ the evidence as regards the nature of the property as to whether it was self acquired or ancestral and as regards title of the testeter over it and also as regards availability of such property for partition by metes and bound would be the questions which would arise in special civil suit omly”.

It is laid down in para 22 that ” the question whether particular bequeit is good or bad is not within the purview of the probate court vide decision in the case of ishwardeo narain v/s sm .kantadevi A,R 1954SC280.itis thus clear that probate writ is a court of exclusive jurisdiction .

with respect to certain issues which squarely fall within its jurisdiction.AS stated herein above in probate proceedings the only issues  for trial court are (a)whether the testater was of sound and disposing state of mind when he made the will and (b)whether  will was duly executed and attested.the jurisdiction  of the probate court is exclusive with respect to the aforesaid issues and its findings on the aforesaid issues is conciasive.the probate is anclusive as to the due execution of the will and as to the genuiness og the will and appointment of the executer.so long as grant of probate stands, the will is required to be considered as genuine . A probate court is not competent to go into the question of title.’’

2)    Hon’ble High Court of Gujarat has reiterated the same ratio in the case of Bapulal somabhai patel v/s Vithalbhai somabhai patel reported in 2000(2) GLR 104, that “11. the probate court can declare the will not to be probate executed thongh probate court  cannot extend the swpe of its jurisdiction to inquire into the title of the property .Any how if the rights of the parties are altected regarding the property bequeathed by any will then such parties are always free to move any legal proceedings available to them to claim and establish thein title over the property which might hawe been bequeathed by any will “.

3)    In the case of Chiranjilal Shrilal Goenka v/v. Jasjit Singh and Ors. reported in 1993(2) SCC 507 Hon’ble Apex Court  has laid down in para 15 that: “  In Inswardeo Narain Singh v. Smt. Kanta Devi and Ors. AIR 1954 SC 280, this Court held that the court of probate is only concerned with the question as to whether the document put forward as the last will and testament of a deceased person was duly executed and attested in accordance with law and whether at the time of such execution the testator had sound disposing mind.

The question whether a particular bequest is good or bad is not within the purview of the Probate Court. Therefore the only issue in a probate proceeding relates to the genuineness and due execution of the will and the court itself is under duty to determine it and preserve the original will in its custody. The Succession Act is a self contained code in so far as the question of making an application for probate, grant or refusal of probate or an appeal carried against the decision of the probate court.

This is clearly manifested in the fasecule of the provision of the Act. The probate proceedings shall be conducted by the probate court in the manner prescribed in the Act and in no other ways. The grant of probate with a copy of the will annexed establishes conclusively as to the appintment of the executor and the valid execution of the Will. Thus it does no more than establish the factum of the will and the legal character of the executor. Probate court does not decide any question of title or existance of the property itself.”

4)    In the case of Kanwarjit Singh Dhillon v/v. Hardyal Singh Dhillon and Ors. reported in 2007 (11) SCC 357 Hon’ble Apex Court  has laid down in para 10 that: “ …………It is well settled law that the functions of probate court are to see that the Will executed by the testator was actually executed by him in a sound disposing state of mind without coersion or undue influence and the same was duly attested. It was , therefore, not competent for the probate court to determine whether late S.Kirpal Singh had or had not the authority to dispose of the suit properties which he purported to have bequeathed by his Will.

The probate court is also not competent to determine the question of title to the suit properties nor will it go into the question whether the suit properties bequeathed by Will were joint ancestral properties or acquired properties of the testator.”

5)    In the case of Savitri Devi and Ors. v/v. Savitri Devi and Ors.reported in MANU/BH/2435/2019 Hon’ble Patna High Court  has laid down in para 23  that: ” In a probate proceeding the only question to be determined by the Probate Court is that whether the document put forward as the last will and testament of a deceased person was duly executed by and attested in accordance with law and whether at the time of such execution the testatrix had sound disposing mind.

The grant of letter of administration is decisive only of the will propounded and not the title of the testatrix to the property. The findings recorded by the Probate Court does not operate as res judicata in a suit filed by the objector seeking declaration of her right, title and interest in the property. The jurisdiction of the Probate Court is confined only to the genuineness of Will. The status of the testatrix or her interest and title in the bequeath property is beyond the scope and ambit of Probate Court.”

6)    In the case of Rupali Mehta v/s. Tina Narinder Sain Mehta reported  in AIR 2007 Bom 62 Hon’ble Bombay High Court  has laid down in para 12  that: ” It is thus clear that in a petition for probate of a Will or a petition for grant of administration the sole question that arises for consideration is whether or not the Will is genuine or not? The property left behind by the deceased is not the subject matter of decision of the probate court.  These observations were made by the Division Bench of the Patna High Court while considering the question whether a caveat filed by a person who disputes title of the testator to the property is maintainable or not and the Division Bench has held that a caveat filed by such a person is not maintainable.

The Supreme Court has referred to the decision of the Patna High Court in Kashi Nath Singh case in its judgement in the case of Shanta G.Z.Mehta v. Sarla J. Mehta & Ors. AIR 2004 SC 1238 in its paragraphs 5 & 6 of its judgement. These paragraphs 5 & 6 read as under; 5. There is no dispute about the question of law that te caveator who denies the title of the testator has no right to contest the Will and his remedy is to approach the Civil Court to agitate the question of title.

The learned Counsel for the plaintiff invited my attention to number of decisions of this point, where it has been uniformly held that the caveator who denies the title of the testator has no right to contest the probate proceedings. He has relied on AIR 1932 Pat 89 Ramyad Mahton v. Ram BHaju Mahton; (1992) 9*4 Bom LR 531 Eruch Rustam Irani v. Limji Kalkasroo Panday; AIR 1941 Pat 475 Kashi Nath Singh v. Dulhin  Gulzari Kuer; and some other decisions where it has been uniformly held that if the caveator disputes the title of the testator, he has no right to lodge the caveat and the caveat has to be rejected. As already stated there cannot be any dispute about this proposition of law.”

Thus it well settled that in probate proceedings, the Court has to decide the question of whether the will is genuine or not and whether the testatrix is of sound and disposing mind at the time of execution of the will. The tile or ownership or existence of the property is beyond the scope of the probate proceedings.

written and compiled by ;

Dharmendra Parikh (Advocate)

D Parikh & Associates (Law Firm)

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