Jharkhand High Court
Bansidhar Sao Son Of Late Hari Prasad Sao … vs (I) Shiv Kumar Gupta on 17 April, 2025
Author: Gautam Kumar Choudhary
Bench: Gautam Kumar Choudhary
2025:JHHC:11549
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Misc. Appeal No.378 of 2008
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Bansidhar Sao son of Late Hari Prasad Sao resident of Hirapur, P.O., P.S.
and District Dhanbad …. …. …. Appellant
Versus
1(i) Shiv Kumar Gupta
1(ii) Subham Kumar Gupta
1(iii) Saurabh Kumar Gupta
All sons of Late Manoj Kumar @ Manoj Kumar Gupta residents of
Hirapur, Opposite Police Line, P.O., P.S. and District Dhanbad
2. Pawan Kumar son of Late Jyoti Sao
3. Kamla Devi (dead)
4. Smt. Renu Devi
5. Smt. Reman Devi
6. Miss Punam
All daughters of Late Jyoti Sao residents of Hirapur, P.O., P.S. and
District Dhanbad
7. Ram Chander Shaw
8. Suraj Saw
9. Prem Chand Gupta
10. Ashok Kumar Gupta
All sons of Late Hari Prasad Sao
11. Kusumlata Devi
12. Shila Devi
Both daughters of Late Hari Prasad Sao
13(a) Mohan Lal Gupta
13(b) Dwarika Prasad Gupta
13(c) Kusumlata (married daughter)
13(d) Anjani (married daughter)
14. Sabitri Devi wife of Late Jagdish Shaw (dead)
15(a) Smt. Bina Gupta (wife)
15(b) Shalini (adult daughter)
15(c) Bhawana (adult daughter)
16(a) Smt. Lata Devi (wife)
16(b) Sandip Kumar (adult son)
Sl. Nos.7-12 and 14-17 are residents of Hirapur, P.O., P.S. and District
Dhanbad …. …. …. Respondents
CORAM: HON’BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY
For the Appellant : Mr. Amit Kumar Das, Advocate
Ms. Swati Shalini, Advocate
For the Respondents : Ms. J. Mazumdar, Advocate
Ms. Niharika Mazumdar, Advocate
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2025:JHHC:11549
CAV On : 19.03.2025 Pronounced On: 17.04.2025
This appeal is against the order passed in Probate Case No.5/1993
whereby and whereunder application for probate has been dismissed.
2. As per the case of the legatee/beneficiary, testator- Late Hari Prasad
Sao executed a registered WILL in favour of the appellant and other sons on
14.08.1961. Testator- Hari Prasad Sao, who died on 16.06.1981, had executed
a registered WILL with respect to the properties detailed in Schedule A of
the probate application.
3. Appellant is the son of the testator and the contesting respondent
nos.12 – 16, are step brothers and sisters of the appellant. Testator- Hari
Prasad Sao had three sons namely Jagdish Sao, Motichand and Jyotichand
by first wife, and five sons from the second wife. Respondents are sons and
daughters from the first wife, whereas appellant is the son of testator from
his second wife.
4. The application for probate was contested by opposite party nos. 12
– 17, who filed a joint objection/written statement inter alia on the ground
that Hari Prasad Sao died on 16.06.1981, but he had never made any WILL
and testament in favour of the applicant and the alleged WILL was a forged
and fabricated document.
5. On the basis of the pleadings of the parties, learned Probate Court
framed the following issues: –
I. Whether the WILL dated 14.08.1961 of Late Hari Prasad Sao is the last
WILL and whether it is genuine?
II. Whether the applicant has proved execution of the abovementioned
WILL as per law or not?
III. Whether petitioner entitled for grant of probate of the
abovementioned WILL or not?
6. Application for probate was dismissed on the ground that the
attesting witnesses were not examined and although it has been stated that
testator intended to bequeath all his immovable property, but the details
have not been given.
Secondly, learned Probate Court observed that although WILL was
executed for all remaining movable and immovable properties in favour of
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five sons from second wife, but in Schedule A, Holding No.143, House
Nos.215 and 216 have been mentioned. There were no further details of the
property of Holding Nos.277, 278, 162 and 266 which has been mentioned in
the WILL itself. The absence of description of these holdings, suggested that
testator had no knowledge about the property for which WILL was
executed.
Third ground on which the probate application was disallowed,
was that attesting witnesses namely Gaur Chand Sarkar and Hiren Chand
Chatterjee were not examined.
7. It was contended on behalf of applicant that attesting witnesses had
died and the document was more than 30 years old therefore, presumption
was liable to be drawn under Section 90 of the Evidence Act. This argument
did not find favour for the reason that there was mandatory requirement of
examination of attesting witnesses and the Court was not bound to draw a
presumption of execution of the document under Section 90 of the Evidence
Act.
8. It is argued by the learned counsel on behalf of appellant that there
was a statutory presumption under Section 90 of the Evidence Act that the
document being 30 years old, it was duly executed and the onus was on the
other side to lead evidence to impeach credit of its due execution. Learned
Court erred in casting burden of proof of 30 years old document on the
applicant, that too when it was registered document and was produced from
genuine custody.
9. Reliance is placed on (2006) 5 SCC 353 para 27; (2019) 2 SCC 727
para 16; (2009) 12 SCC 101; (2021) 15 SCC 300 para 33, 73 and 75. It is argued
that it is for the testator to decide that for which property he intends to
execute a WILL, once there is specific mention of the property in the
Schedule of the WILL, there was no occasion for the learned Probate Court
to have entered into the question that why other properties were not
included. So far, the other properties are concerned, no details whatsoever
were furnished by the opposite parties/objectors. In the absence of any such
detail, the learned Probate Court misdirected itself in entering into non-
existent issue of the properties excluded from the WILL. Lastly, it is argued
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that first issue has not been answered as to whether the WILL was genuine
or not.
10. It is argued by the learned counsel on behalf of respondents that
probate application is hit by Law of Limitation under Article 137. It is
submitted that law is settled that Article 137 of the Limitation Act shall
apply in filing of the probate application. In this case, admittedly, the
testator died in 1981, whereas the probate application has been filed in 1993,
after the other respondent had filed Title Suit with respect to the same
property. The plea that applicant was unaware of the execution of WILL,
will not be available, as the said WILL was executed in his favour and it was
in his custody.
11. In reply to the argument on the point of delay in filing the probate
application, it is submitted that the question of limitation is a mixed
question of fact and law and it was incumbent on the part of the
respondents/objectors to have raised this issue before the learned Probate
Court which was not raised there. Neither any issue was framed nor it was
contested and it is being raised in appeal for the first time.
12. Further, on the point of limitation, it is submitted by learned
counsel on behalf of the appellant that A.W. 1 has stated in para 33 in his
cross-examination that he had no knowledge about the execution of the
WILL in his favour and he came to know about this for the first time in 1990
while clearing his boxes and thereafter, the case was filed in 1993 after the
said discovery. On the point of non-examination of attesting witnesses, it is
submitted that the registration of the WILL was never in doubt and it has
been admitted by the witnesses of objectors/respondents- Chaturbhuj
Prasad (opposite party no. 3) in para 23 of his cross-examination. The
attesting witnesses had died during the time of proceeding before the
Probate Court which has come in the testimony of the applicant-A.W. 1 in
para 4 of examination-in-chief and he has not been cross-examined on this
point.
13. Furthermore, it is contended that the essence of adjudication in
Probate Court is to see if the WILL has been executed in free and disposing
state of mind by the testator and delay if any, can be looked only when it
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raises the suspicion on the execution of a WILL. Reliance is placed on
Kunvarjeet Singh Khandpur Vs. Kirandeep Kuar & Others, (2008) 8 SCC 463,
wherein it has been held that right to apply for probate commences on the
death of the testator and Article 137 of the Limitation Act does not apply, his
right to file, is continuing in nature. The judgments of Calcutta High Court
rendered in Hanuman Prasad Vs. Satyanarayan Agarwal, AIR 2020
Calcutta 246, Sulata Paul Vs. Asim Paul, 2024 SCC OnLine Gau 993 is
being referred in this regard on the point of limitation.
ANALYSIS & CONCLUSION
14. Learned counsel on behalf of respondents/objectors raises two
main points, first is limitation in view of the judgment of the Hon’ble
Supreme Court in (2020) 17 SCC 284 and second is that the attesting
witnesses were not examined by the applicant.
15. Facts of the case are not much in dispute, so far, the inter se relation
of the parties is concerned. Original parties were the step brothers and the
application for grant of probate is for a WILL executed by the father of the
appellant.
16. What is contested is the execution of the registered WILL in 1961 in
favour of the appellant by the Testator, who died in the year 1981.
17. It has been rightly contended on behalf of the objector that WILL
being registered or being 30 years old, do not ipso facto relieve the
beneficiary to get it probated.
18. But it needs to be appreciated that a WILL is to be proved like any
other document, with the further requirement of its proof in terms of Section
63 of the Succession Act, 1925 and Section 68 of the Evidence Act. Meaning
thereby, the WILL shall be attested by two or more witnesses, each of whom
had seen the testator sign or affix his mark to the WILL and each of the
witnesses to sign the WILL in the presence of the testator, but it shall not be
necessary that more than one witness be present at the same time, and no
particular form of attestation was necessary. Section 68 of the Evidence Act,
mandates examination of one of the witnesses if he is alive.
19. The mode, manner and degree of proof required for probate of a
WILL has been summed up in H. Venkatachala Iyengar v. B.N.
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Thimmajamma, 1958 SCC OnLine SC 31 : AIR 1959 SC 443.
“18. What is the true legal position in the matter of proof of wills? It is
well-known that the proof of wills presents a recurring topic for decision
in courts and there are a large number of judicial pronouncements on the
subject. The party propounding a will or otherwise making a claim under
a will is no doubt seeking to prove a document and, in deciding how it is
to be proved, we must inevitably refer to the statutory provisions which
govern the proof of documents. Sections 67 and 68 of the Evidence Act
are relevant for this purpose. Under Section 67, if a document is alleged
to be signed by any person, the signature of the said person must be
proved to be in his handwriting, and for proving such a handwriting
under Sections 45 and 47 of the Act the opinions of experts and of
persons acquainted with the handwriting of the person concerned are
made relevant. Section 68 deals with the proof of the execution of the
document required by law to be attested; and it provides that such a
document shall not be used as evidence until one attesting witness at
least has been called for the purpose of proving its execution. These
provisions prescribe the requirements and the nature of proof which must
be satisfied by the party who relies on a document in a court of law.
Similarly, Sections 59 and 63 of the Indian Succession Act are also
relevant. Section 59 provides that every person of sound mind, not being
a minor, may dispose of his property by will and the three illustrations to
this section indicate what is meant by the expression “a person of sound
mind” in the context. Section 63 requires that the testator shall sign or
affix his mark to the Will or it shall be signed by some other person in his
presence and by his direction and that the signature or mark shall be so
made that it shall appear that it was intended thereby to give effect to the
writing as a will. This section also requires that the will shall be attested
by two or more witnesses as prescribed. Thus the question as to whether
the will set up by the propounder is proved to be the last will of the
testator has to be decided in the light of these provisions. Has the testator
signed the will? Did he understand the nature and effect of the
dispositions in the will? Did he put his signature to the will knowing
what it contained? Stated broadly it is the decision of these questions
which determines the nature of the finding on the question of the proof of
wills. It would prima facie be true to say that the will has to be proved like
any other document except as to the special requirements of attestation
prescribed by Section 63 of the Indian Succession Act. As in the case of
proof of other documents so in the case of proof of wills it would be idle to
expect proof with mathematical certainty. The test to be applied would be
the usual test of the satisfaction of the prudent mind in such matters”.
20. Like any other document when the WILL is registered, there is a
presumption of its due execution, and onus is on the party, who pleads that
it was forged and fabricated to lead evidence to that effect. The Sub-
Registrar’s proceedings are official acts, the certificate by the Sub-Registrar is
also there, and therefore, there is presumption of fact under Section 114 (g)
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of Evidence Act, that official acts have been regularly performed. [see (2009)
5 SCC 713]
21. It has been held in Indu Bala Bose & Others v. Manindra Chandra
Bose & Another, (1982) 1 SCC 20 that the mode of proving a WILL does not
ordinarily differ from that of proving any other document except the special
requirement of attestation prescribed in the case of a WILL by Section 63 of
the 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 the signature of the testator as
required by law are sufficient to discharge the onus. Where however there
are suspicious circumstances, the onus is on the propounder to explain them to
the satisfaction of the Court before the court accepts the WILL as genuine.
Even where circumstances give rise to doubts, it is for the propounder to
satisfy the conscience of the Court. The suspicious circumstances may be as
to the genuineness of the signatures of the testator, the condition of the
testator’s mind, the dispositions made in the WILL being unnatural,
improbable or unfair in the light of relevant circumstances, or there might be
other indications in the WILL to show that the testator’s mind was not free.
In such a case, the Court would naturally expect that all legitimate
suspicions should be completely removed before the document is accepted
as the last WILL of the testator. If the propounder himself takes a prominent
part in the execution of the WILL which confers a substantial benefit on him,
that is also a circumstance to be taken into account, and the propounder is
required to remove the doubts by clear and satisfactory evidence. If the
propounder succeeds in removing the suspicious circumstances the Court
would grant probate, even if the WILL might be unnatural and might cut off
wholly or in part near relations.
22. A presumption of due execution of a 30 years old document shall
also apply under Section 90 of the Evidence Act in the present case. Thus,
there are twin presumptions in this case, of WILL being registered and being
30 years old, in favour of its due execution, and therefore, there will be a
lighter burden of proof as no suspicious circumstance has been cited to cast
doubt over its veracity.
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23. In the present case, on the point of non-examination of attesting
witnesses, Chaturbhuj Prasad examined on behalf of objector has admitted
in para 23 of his cross-examination, regarding the factum of registration of
WILL. The attesting witnesses had died during the time of proceeding
before the Probate Court which has come in the testimony of the applicant-
A.W. 1 in para 4 of his examination-in-chief and he has not been cross-
examined on this point. In this circumstance, non-examination of attesting
witness cannot be regarded as fatal. Taking evidence in its totality, this
Court is of the view that Applicant has discharged the onus to prove the
Will.
24. Nature of judicial adjudication in probate proceeding which is
summary in nature has been succinctly summed up in Gurdev Kaur &
Others v. Kaki & Others, (2007) 1 SCC 546 :
28. The court does not sit in appeal over the testator’s decision. The
court’s role is limited to examining whether the instrument propounded
as the last will of the deceased is or is not that by the testator and whether
it is the product of the free and sound disposing mind.
77. The court does not sit in appeal over the right or wrong of the
testator’s decision. The court’s role is limited to examining whether the
instrument propounded as the last will of the deceased is or is not that by
the testator and whether it is the product of the free and sound disposing
mind. It is only for the purpose of examining the authenticity or
otherwise of the instrument propounded as the last will, that the court
looks into the nature of the bequest.
78. The contents of the will have to be appreciated in the context of his
circumstances, and not vis-à-vis the rules for intestate succession. It is
only for this limited purpose that the court examines the nature of
bequest. The court does not substitute its own opinion for what was the
testator’s will or intention as manifested from a reading of the written
instrument. After all, a will is meant to be an expression of his desire and
therefore, may result in disinheritance of some and grant to another.
79. If a will appears on the face of it to have been duly executed and
attested in accordance with the requirements of the statute, a
presumption of due execution and attestation applies.
25. In view of the above law, it is not open for the Probate Court to
question the wisdom of the testator with regard to the testamentary
disposition of his property. WILL is unambiguous in its declaration which is
as follows: –
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1) I bequeath absolutely and exclusively to my sons Bansidhar
and Ramchandra all the properties mentioned in item I of the
Schedule (A), below in equal shares.
2) I bequeath absolutely and exclusively to my sons Suraj Prasad,
Premchand and Asoke Kumar the properties mentioned in
item II of the Schedule A below in equal shares.
3) All remaining properties -movable or immovable and all other
assets that may belong to me at my demise shall also belong to
and devolved unto my sons Bansidhar, Ramchandra, Suraj
Prasad, Premchand and Asoke Kumar in equal shares.
4) On my death the said sons of mine will be the full owners of
the properties bequeathed to them respectively and will
continue enjoying the same from generation to generation with
full power and liberty to transfer by way of sale, gift and in any
other ways.
26. In view of the above emphatic declaration, the probate Court could
not have entered into the question of title and apportionment of share as it
was confined to adjudication of the genuineness of the WILL.
27. So far the question of limitation is concerned, there is merit in
submission advanced on behalf of the appellant that it is a mixed question of
fact and law, and is being raised for the first time at this stage. Coming to the
question of limitation it has been deposed by Appellant (A.W. 1) in para 33
in his cross-examination that he had no knowledge about the execution of
the WILL in his favour and he came to know about this for the first time in
1990 while clearing his boxes and thereafter, the probate case was filed in
1993 after the said discovery.
28. Law is settled that the right to apply for probate commences upon
the death of the testator, and Article 137 of the Limitation Act clearly
applies, but the right to file, is continuing in nature. In Kunvarjeet Singh
Khandpur Vs. Kirandeep Kuar & Others, (2008) 8 SCC 463, it was held by
their Lordships that the crucial expression in the petition (sic Article) is
“right to apply”. In view of what has been stated by this Court, Article 137 of
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the Limitation Act is clearly applicable to the petition for grant of letters of
administration. The application for probate merely seeks recognition from
the court to perform a duty and because of the nature of the proceedings it is
a continuing right.
29. What follows is that when there is an unexplained delay in
preferring the application for grant of probate, which is not filed within
three years from the death of the testator, that will create a suspicious
circumstance raising doubt over the veracity of the WILL. In the present
case, as the delay has been explained, and more so delay was not raised as
an issue before the Probate Court, therefore, plea that probate application
was barred by limitation, is not sustainable.
30. Judgment and impugned order is set aside.
31. Let a probate be granted with certified photo copy of the WILL
annexed. The formal letter of probate as per Schedule VI of the Indian
Succession Act, shall be issued by the Court below. Deficiency if any in
Court fees, shall be made up.
Miscellaneous Appeal is allowed. Interlocutory Application, if
any, is disposed of.
(Gautam Kumar Choudhary, J.)
Jharkhand High Court, Ranchi
Dated 17th April, 2025
NAFR/Anit
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