Patna High Court
Jitendra Narain Singh And Ors vs Tileshwari Kuer on 30 June, 2025
Author: Sandeep Kumar
Bench: Sandeep Kumar
IN THE HIGH COURT OF JUDICATURE AT PATNA
FIRST APPEAL No.175 of 1999
======================================================
1.1. Jitendra Narain Singh Son Of Late Chuman Narain Singh, At Present
Resident Of Village Teldiha P.S. Madanpur, District Aurangabad.
1.2. Nirmala Devi Widow Of Late Bitendra Narain Singh Resident Of Village
1.
Teldiha, P.S. Madanpur, District Aurangabad.
1.2. Sanu Kumar Singh Son Of Late Bitendra Narain Singh, Resident Of Village
2.
Teldiha, P.S. Madanpur, District Aurangabad.
1.2. Dimpal Kumar Singh, Son Of Late Bitendra Narain Singh, Resident Of Vil-
3.
lage Teldiha, P.S. Madanpur, District Aurangabad.
1.2. Neetu Kumari D/O Late Bitendra Narain Singh, Resident Of Village Teldiha,
4.
P.S. Madanpur, District Aurangabad.
... ... Appellants
Versus
1. Tileshwari Kuer Wife of Late Suresh Prasad Singh, Resident of Village
Sarawak, P.S. Kasma, District Aurangabad.
2. Ajay Kumar Singh Son of Late Suresh Singh, Resident of Village Sarawak,
P.S. Kasma, District Aurangabad.
3. Pravin Kumar Singh Son of Late Suresh Singh, Resident of Village Sarawak,
P.S. Kasma, District Aurangabad.
4. Chandra Bhusan Kumar Singh Son of Late Suresh Singh, Resident of Vil-
lage Sarawak, P.S. Kasma, District Aurangabad.
5. Shashi Bhushan Kumar Singh Son of Late Suresh Singh, Resident of Village
Sarawak, P.S. Kasma, District Aurangabad.
6. Hari Bhusan Singh Son of Late Suresh Singh, Resident of Village Sarawak,
P.S. Kasma, District Aurangabad.
7. Savita Kumari Wife of Prem Prakash Singh Resident of Village Nagariawan,
P.S. Nagariawan, District - Gaya.
8. Pratima Kumari D/o Late Suresh Prasad Singh, Resident of Village Sarawak,
P.S. Kasma, District Aurangabad.
9. Kunti Devi W/o Sheo Shankar Pratap Singh, Resident of Village - Barbhoja,
P.O. Deha, P.S. Karchhava, Distt. - Allahabad.
10. Madho Devi Wife of Birendra Pratap Singh, Resident of Village - Barbhoja,
P.O. Diha, P.S. Karchhava, Distt. Allahabad.
Patna High Court FA No.175 of 1999 dt.30-06-2025
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11. Deota Devi W/o Damodar Pd. Singh, Resident of Vill. Bijidih, P.S. Bha-
banathpur, Distt- Garwaha.
12. Rita Devi W/o Manoj Singh, Resident of Vill. Bijidih, P.S. Bhabanathpur,
Distt- Garwaha.
... ... Respondents
======================================================
Appearance :
For the Appellants : Mr. Sanjay Kumar Singh, Advocate
Mr. Binod Kumar Singh, Advocate
For the Resp. Nos.1 to 8
& 10 to 12 : Mr. Mr. Vinay Kirti Singh, Sr. Advocate
Mr. Bijendra Kumar Singh, Advocate
For Resp. No. 9 : Mr. Uma Shankar, Advocate
Mr. Shiv Kumar Prabhakar, Advocate
======================================================
CORAM: HONOURABLE MR. JUSTICE SANDEEP KUMAR
ORAL JUDGMENT
Date : 30-06-2025
The instant First Appeal has been filed by the
original appellant / plaintiff namely, Chuman Narain Singh
against the judgment and decree dated 22.02.1999 passed by the
2nd Additional District Judge, Aurangabad, in Title Suit (Probate)
Case No.03 of 1979 (01 of 1993), whereby the grant of probate
was refused by the learned Judge upon determining that the
property as defined under the Will dated 25.08.1977 to be an
undivided property.
2. During the pendency of this appeal, the
original appellant / plaintiff namely, Chuman Narain Singh died.
Vide order dated 09.01.2013, a coordinate Bench of this Court
allowed two Interlocutory Applications i.e. I.A. Nos. No.7066 of
2007 and 213 of 2012 for substitution of legal heirs of the
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deceased- appellant and accordingly, the legal heirs of original
appellant are on record.
3. The facts of this case, as culled out from the
records of the case, are that on 25.08.1977, a Will was executed
by one Matukdhari Singh who was the maternal uncle of the
executor and the original appellant / plaintiff namely, Chuman
Narain Singh. In the said Will, one Pukar Narain Singh and
Kishore Narain Singh were also legatees. Thereafter, the Will
was registered on 28.11.1978. There were altogether, three
attesting witnesses of the Will namely, Ramadhar Mishra,
Sidheshwar Singh and Ramji Tiwari and the scribe of the Will
was one Vinay Kumar Singh. The testator of the Will died on
02.09.1977.
4
. Bishun Singh was the father of the testator-
Matukdhari Singh. He had four sons namely, Premdhari Singh,
Namedhari Singh, Jagdhari Singh and Matukdhari Singh. Out of
the four sons, Premdhari Singh and Namedhari Singh died
issueless prior to the execution of the Will. Matukdhari Singh
executed the Will in favour of his maternal nephews (bhagina)
i.e. the sons of one of his sisters. Therefore, the testator-
Matukdhari Singh executed the aforesaid Will in favour of the
executor-Chuman Narain Singh and his two brothers namely,
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Pukar Narain Singh and Kishori Narain Singh.
5. It is the case of the appellants that the
testator-Mathukdhari Singh during his life time executed the
Will bequeathing the property to the original appellant / plaintiff
and his brothers. In the month of September, 1977, the testator-
Mathukdhari Singh passed away and thereafter the aforesaid last
Will and testament of the testator was registered on 28.11.1978
under the Indian Registration Act, 1908. Subsequently, on
26.06.1979, the original appellant-plaintiff Chuman Narain
Singh preferred a probate case under section 276 of the Indian
Succession Act, 1925, which was registered as Probate Case
No.03 of 1979. In the aforesaid Probate Case, a caveat was filed
by one Suresh Prasad Singh, son of Jadunandan Singh on
04.09.1980. This Caveator was the grandson of another sister of
the testator-Matukdhari Singh and the aforesaid caveator was
subsequently added as a party in the probate case.
6. On 12.04.1990, a written statement was filed
by the caveator-Suresh Prasad Singh stating therein that he had
filed the caveat in the case on 04.09.1980 and testator-
Matukdhari Singh had died in the month of September, 1977
leaving behind his brother Jagdhari Singh and his heirs and
successors who inherited his property including the lands and
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house covered under the disputed Will and thereafter, came in
possession. In the written statement, it has also been stated that
said Jagdhari Singh performed Shradh ceremony of testator-
Matukdhari Singh and to meet the cost of ceremony he sold
some land covered under the disputed Will through different
registered sale deeds to one Sheosharan Sao and others and
further stated that Jagdhari Singh also gifted land and house to
the caveator-Suresh Prasad Singh which was covered under the
disputed Will vide registered gift deeds dated 02.11.1977 and
18.01.1979 and thereafter caveator-Suresh Prasad Singh
acquired possession thereon as donee.
7. Subsequently, upon contest the
aforementioned Probate Case was converted into a title suit
vide order dated 17.09.1993 under section 295 of the Indian
Succession Act, 1925 and renumbered as Title Suit (Probate)
No.01 of 1993. Thereafter, on 18.10.1993 a second written
statement was filed by caveator-Suresh Prasad Singh alleging
therein that the plaintiff in collusion with scribe and attesting
witnesses has brought the Will into existence and the Will is
forged and fabricated and that the same has not been read over
and explained to the testator nor has he admitted the same.
Further, the testator was not in sound state of body and mind at
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the time of execution of the disputed Will as he was suffering
from heart trouble and eventually, died of heart attack. It is also
alleged that the disputed Will was registered on 28.11.1978 i.e.
after the death of the testator in collusion with Sub-Registrar and
identifier – Sidheshwar Singh.
8. The caveator-Suresh Prasad Singh died and
thereafter his heirs were substituted in his place vide order dated
15.03.1994.
9. The learned trial court had framed all
together six issues, which are as under :-
i. Whether the suit as framed is maintainable ?
ii. Has the plaintiff got cause of action for the suit ?
iii. Is the Will executed by Matukdhari Singh in
favour of Chuman Narain Singh legal, valid and
genuine ?
iv. Whether the petitioner is entitled to get a letter
of administration in respect of property covered
under the Will.
v. Whether the Will was executed by testator or not
and whether it was executed in sound state of body
and mind of testator ?
vi. Whether the plaintiff is entitled to relief as
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10. On behalf of the original appellant / plaintiff
all together 08 witnesses were examined, which are as under :-
P.W.-01 Ramadhar Mishra – one of the attesting witnesses
P.W.-02 Sidheshwar Singh – one of the attesting witnesses
P.W.-03 Vinayak Singh – scribe of the Will
P.W.-04 Satyendra Nath Pandey
P.W.-05 Sitaram Prasad Sharma – finger print expert
P.W.-06 Triveni Nath Singh
P.W.-07 Takrim Murtaja – photographer
P.W.-08 Chuman Narain Singh – plaintiff
11. The following documents were exhibited on
behalf of the original appellant / plaintiff :-
Ext.1 Basiyatnama (Wasiyatnama) – Will of
Matukdhari Singh dated 25.08.1977 in favour of
Chuman Narain Singh.
Ext.2 Report of fingerprint and handwriting expert.
Ext.3 Deed of gift executed by Jagdhari Singh and
Matukdhari Singh in favour of Chuman Narain
Singh, Pukar Narain Singh, Kishori Narain
Singh on 20.09.1975.
Ext.4 to 4a Negative of the photographs taken for the
purpose of expert report
Ext.5 to 5a Photograph taken out from the negative
Ext.6 Service report of the notice issued to Sheosharan
Singh
12. On behalf of the defendants, all together six
witnesses were examined, which were as follows ;-
D.W.-01 Kapildeo Singh – one of the purchasers from
Suresh Prasad Singh, the Caveator.
D.W.- 02 Mishir Singh.
D.W.- 03 Suresh Narain Singh.
D.W.- 04 Bhola Prasad.
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D.W.- 05 Sheosharan Sao – also one of the purchasers from
Suresh Prasad Singh, the Caveator.
D.W.- 06 Praveen Kumar – son of Suresh Prasad Singh, the
Caveator.
13. The following documents were exhibited on
behalf of the defendant :-
Ext.-A Registered sale deed executed by Suresh Prasad
Singh in favour of Jamuna Singh and others.
Ext.-B Deed of gift executed by Jagdhari Singh on
02.11.1977 in favour of Suresh Prasad Singh.
Exh – B/1 Another deed of gift executed on 18.01.1979 by
Gajdhari Singh in favour of Suresh Prasad Singh.
Ext.- B/2 Another sale deed executed on 18.11.1979 by
Jagdhari Singh in favour of Sheosharan Sao.
Ext.B/3 Sale deed executed by Suresh Prasad Singh on
08.11.1977 in favour of Sheosharan Sao.
Ext.B/4 Sale deed executed by Suresh Prasad Singh in
favour of Sheosharan Sao.
Ext.B/5 Rent receipts.
and B/7
Ext.-C Deed of gift executed by Jagdhari Singh on
04.11.1976 in favour of Suresh Prasad Singh.
Ext.-C/1 Signature of Suresh Narain Singh on the said
Deed of Gift.
Ext. C/2 Signature of Radheshyam.
Ext. C/3 Signature of witness Bhola Prasad on the said
Deed of Gift.
14. Based on the testimonies of the witnesses and
the documentary evidences adduced during the course of the
suit, the court first took up the issue no.05 i.e., whether the Will
was executed by the testator or not and whether it was executed
in sound state of body and mind. The aforesaid issue no.05 was
decided in favour of the original appellant-plaintiff. While
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deciding this issue in favour of the original appellant / plaintiff,
the trial court had considered the following facts before coming
to the conclusion :-
(i) the Will mentions that prior to execution of
the Will the testator and his brother had
jointly executed a gift deed in favour of the
original appellant / plaintiff in the year 1975
since he was Dehi and Darwari.
(ii) P.W.-1 Ramadhar Mishra, and P.W.-2
Sidheshwar Singh, both attesting witnesses to
the Will, had supported the case of the
original appellant / plaintiff. P.W.-3 Vinayak
Singh, the scribe of the Will has also
supported the case of the original appellant /
plaintiff.
(iii) the fingerprint and handwriting expert after
scientifically examining the signature of the
testator from the Will and the specimen
signature, had found that the signature on the
Will was correct. In its support, a juxtapose
chart along with the report was also
submitted.
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(iv) the defendants therein never challenged the
signature of the testator nor did they adduce
any evidence to dispute the evidence led by
the original appellant / plaintiff.
15. After considering the aforesaid facts and the
statement of the witnesses, the trial court concluded that the Will
was scribed on the instruction of the testator and was duly
executed by Matukdhari Singh. The trial court further observed
that P.W.-1 had stated that the Will was executed in single page
and not on both sides of the page, however, the trial court did
not hold this statement against the execution of the Will because
the Court was satisfied with the detailed fingerprint and
handwriting experts report. It has also been taken into
consideration the fact that the defence witnesses were not in
regard to challenge to the signature of the testator and further no
expert has been examined on behalf of the defence to disprove
the expert report marked as Exhibit-2. Accordingly, the court
decided the issue no.5 in favour of the original appellant /
plaintiff.
16. Thereafter, the court has taken issue no.3 and
4 jointly and decided the same against the original appellant /
plaintiff. While deciding these issues against the original
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appellant / plaintiff, the trial court had considered the following
facts before coming to the conclusion :-
(i) In the plaint, it has not been stated that the
testator had earlier executed a gift deed in
favour of the original appellant / plaintiff and
it is not his case that the testator was
separated from his brother and that the
property has been partitioned between them.
(ii) though P.W.-1 and P.W.-2 have stated that the
testator had executed the Will in respect of
his own property but in the cross-
examination, P.W.-2 had stated that Survey
Khatiyan was maintained in the name of
Jagdhari Singh and the land was not
partitioned among the brothers of the testator.
(iii) though P.W.-8, the original plaintiff, in his
cross-examination, had stated that the
property in question was jointly held by
Jagdhari Singh and Matukdhari Singh but
they were separately recorded in the survey
records. However, no separate khatiyan
records were filed in the trial court to show
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that the testator was separated from his
brother Jagdhari Singh. In paragraph no.7 of
the cross-examination, this witness had stated
that there was a khangi Batwara between
Jagdhari Singh and Matukdhari Singh in the
year 1976 but no evidence was brought on
record to support the same and further this
fact of khangi Batwara was also not
mentioned in the plaint for probate by the
original appellant / plaintiff.
17. After considering the aforesaid facts and
statement of the witnesses, the trial court concluded that the
property covered under the Will was the joint property of the
testator-Matukdhari Singh and his brother Jagdhari Singh,
because even prior to the execution of the present Will the
testator had jointly executed the deed of gift. Drawing strength
from Article 368 of the Hindu Law by Mullah 14 th Edition, the
trial court noted that a Hindu cannot bequeath or dispose of
undivided interests in the co-parcenary property which could not
be alienated by gift. Even in view of Article 357 of the said
Hindu Law, gift may be made in respect of separate or self
acquired property and as such, the court concluded that the Will
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has been executed in respect of a joint property and no specific
details of the property were mentioned in the Will. Further, the
court noted that the scheduled-A annexed to the petition filed in
the trial court appears to be an afterthought and as such, casting
doubt on the Will and therefore, the Will in question cannot be
said to be valid in the eyes of law and hence, these issues were
decided against the original appellant / plaintiff.
18. Therefore, the remaining issues i.e. issue nos.
1,2 and 6 were also consequently decided against the original
appellant / plaintiff and accordingly, the grant of probate was
refused by the trial court and the suit was dismissed on contest.
Being aggrieved by the dismissal of the suit, the original
plaintiff-appellant has approached this Court.
19. The learned counsel for the appellants has
vehemently argued that once the issue of genuineness and
authenticity of the Will was decided in the favour of the original
appellant / plaintiff by deciding issue no.5 in his favour, the
remaining issues would naturally have to be decided in favour as
well. However, the Court had decided the remaining issues 1
through 4, against the original appellant / plaintiff and as a
consequence, the issue no.6 was decided as the plaintiff being
not entitled to relief as sought. It is submitted that the trial court
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vide the impugned judgment and decree had rejected to grant the
relief as sought by the original appellant / plaintiff after coming
to the conclusion that the Will property is an undivided property
and as such, against the undivided property Will could not be
executed.
20. It is emphasized by the learned counsel for
the appellants that no such issue was framed on the question of
partition between the testator and his brothers, nor was it
appropriate to venture into that aspect in a proceeding for
probate. It was further reiterated that the probate is a process of
certifying the contents and authenticity of a Will and the Court
has no jurisdiction to go into the question of deciding the title of
the testator. As such, it is submitted that the probate proceedings
are not the appropriate stage to adjudicate the title of a testator
over the property in question since the proceedings were only
confined and concerned with granting probate to the executor
named in the Will. Once the executor has established that the
Will has been duly and validly executed by the testator, the grant
of probate can not be refused on the basis of property under Will
being undivided, and the ownership of the property of the
testator can not be determined in a probate case.
21. It is next submitted that the caveator-
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defendant has also not challenged the title of the testator and had
merely stated that the Will was forged, fabricated and a
manufactured one but, the trial court had categorically decided
that the Will in question was executed by the testator in a state
of sound mind and body.
22. The learned counsel for the appellants has
relied upon the decision of the Hon’ble Supreme Court in the
case of Meena Pradhan & Ors. vs. Kamla Pradhan & Anr.
reported as (2023) 9 SCC 734. Paragraph nos. 7 to 11 of the
aforesaid decision read as under:-
“7. Before delving into the facts of the case, it is
pertinent to reproduce the relevant provisions
dealing with the validity and execution of the Will.
7.1. Section 63 of the Indian Succession Act, 1925
“63. Execution of unprivileged wills-
Every testator, not being a soldier employed
in an expedition or engaged in actual
warfare or an airman so employed or
engaged, or a mariner at sea, shall execute
his Will according to the following rules:-
(a) The testator shall sign or shall
affix his mark to the Will, or it shall
be signed by some other person in
his presence and by his direction.
(b) The signature or mark of the
testator, or the signature of the
person signing for him, shall be so
placed that it shall appear that it
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to the writing as a Will.
(c) The Will shall be attested by two
or more witnesses, each of whom
has seen the testator sign or affix his
mark to the Will or has seen some
other person sign the Will, in the
presence and by the direction of the
testator, or has received from the
testator a personal
acknowledgement of his signature or
mark, or the signature of such other
person; and each of the witnesses
shall 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
shall be necessary.”
7.2. Section 68 of the Evidence Act, 1872;
“68. Proof of Execution of
document required by law to be
attested – If a document is required
by law to be attested, it shall not be
used as evidence until one attesting
witness at least has been called for
the purpose of proving its execution,
if there be an attesting witness alive,
and subject to the process of the
Court and capable of giving
evidence.”
8. Thus, a bare reading of the above-mentioned
provisions would show that the requirements
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enshrined under Section 63 of the Succession Act
have to be categorially complied with for the
execution of the Will to be proven in terms of
Section 68 of the Evidence Act.
9. A Will is an instrument of testamentary disposition
of property. It is a legally acknowledged mode of
bequeathing a testator’s property during his
lifetime to be acted upon on his/her death and
carries with it an element of sanctity. It speaks
from the death of the testator. Since the
testator/testatrix, at the time of testing the
document for its validity, would not be available
for deposing as to the circumstances in which the
Will came to be executed, stringent requisites for
the proof thereof have been statutorily enjoined to
rule out the possibility of any manipulation.
10. Relying on H. Venkatachala Iyengar v. B.N.
Thimmajamma 1959 Supp (1) SCR 426 (3-Judge
Bench), Bhagwan Kaur v. Kartar Kaur, (1994) 5
SCC 135 (3-Judge Bench), Janki Narayan Bhoir v.
Narayan Namdeo Kadam, (2003) 2 SCC 91(2-
Judge Bench), Yumnam Ongbi Tampha Ibema
Devi v. Yumnam Joykumar Singh, (2009) 4 SCC
780 (3-Judge Bench) and Shivakumar v.
Sharanabasappa, (2021) 11 SCC 277 (3-Judge
Bench), we can deduce/infer the following
principles required for proving the validity and
execution of the Will:
10.1. The court has to consider two
aspects: firstly, that the Will is executed by
the testator, and secondly, that it was the
last Will executed by him:
10.2. It is not required to be proved with
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satisfaction of the prudent mind has to be
applied.
10.3. A Will is required to fulfil all the
formalities required under Section 63 of the
Succession Act, that is to say:
(a) 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
the said signature or affixation shall
show that it was intended to give
effect to the writing as a Will;
(b) It is mandatory to get it attested
by two or more witnesses, though no
particular form of attestation is
necessary:
(c) Each of the attesting witnesses
must have seen the testator sign or
affix his mark to the Will or has seen
some other person sign the Will, in
the presence and by the direction of
the testator, or has received from the
testator a personal acknowledgment
of such signatures:
(d) Each of the attesting witnesses
shall sign the Will in the presence of
the testator, however, the presence of
all witnesses at the same time is not
required.
10.4. For the purpose of proving the
execution of the Will, at least one of the
attesting witnesses, who is alive, subject to
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the process of court, and capable of giving
evidence. shall be examined;
10.5. The attesting witness should speak not
only about the testator’s signatures but also
that each of the witnesses had signed the
will in the presence of the testator,
10.6. If one attesting witness can prove the
execution of the Will, the examination of
other attesting witnesses can be dispensed
with:
10.7. Where one attesting witness examined to
prove the Will fails to prove its due
execution, then the other available attesting
witness has to be called to supplement his
evidence;
10.8. Whenever there exists any suspicion as
to the execution of the Will, it is the
responsibility of the propounder to remove
all legitimate suspicions before it can be
accepted as the testator’s last Will. In such
cases, the Initial onus on the propounder
becomes heavier.
10.9. The test of judicial conscience has been
evolved for dealing with those cases where
the execution of the Will is surrounded by
suspicious circumstances. It requires to
consider factors such as awareness of the
testator as to the content as well as the
consequences, nature and effect of the
dispositions in the Will; sound, certain and
disposing state of mind and memory of the
testator at the time of execution: testator
executed the Will while acting on his own
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10.10. One who alleges fraud, fabrication,
undue influence et cetera has to prove the
same. However, even in the absence of such
allegations, if there are circumstances
giving rise to doubt, then it becomes the
duty of the propounder to dispel such
suspicious circumstances by giving a
cogent and convincing explanation.
10.11. Suspicious circumstances must be
“real, germane and valid and not merely
the fantasy of the doubting mind”. Whether
a particular feature would qualify as
‘suspicious’ would depend on the facts and
circumstances of each case. Any
circumstance raising suspicion legitimate
in nature would qualify as a suspicious
circumstance for example, a shaky
signature, a feeble mind, an unfair and
unjust disposition of property, the
propounder himself taking a leading part in
the making of the Will under which he
receives a substantial benefit, etc.
11. In short, apart from statutory compliance,
broadly it has to be proved that (a) the testator
signed the Will out of his own free Will (b) at the
time of execution he had a sound state of mind (c)
he was aware of the nature and effect thereof and
(d) the Will was not executed under any suspicious
circumstances. (emphasis supplied)”
23. The learned counsel has also drawn strength
from the judgment of this Court in the case of Makhan Prasad
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Singh vs. Mishrilal Singh & Ors. (Civil Miscellaneous No. 383
of 2017) wherein this Court after discussing the facts of the case
at hand had observed as under :-
“5. …No doubt, a judgment in a probate of letter of
administration is a judgment in rem. However, a
judgment rendered in a probate proceeding would
not be determinative of question of title. But
general citation issued in terms of Section 283(1)
(c) of the Indian Succession Act calling upon all
such persons who claimed to have any interest in
the estate of the deceased is for those persons who
have an interest in the estate left by the deceased.
Only because neither under Section 284 nor under
Section 295 of the Indian Succession Act is the
caveator required to show any interest in the
estate of the deceased, the same would not mean
that anybody and everybody who intends to
oppose the grant of probate would be entitled to
lodge caveat. Citations are issued in order to
enable such persons to see the proceedings before
the grant of probate and if necessary, to oppose
the same. Furthermore, the interest claimed as
caveatable interest must not be one which would
have the effect of destroying the testator’s estate.
Any person claiming any interest adverse to the
testator or his estate cannot maintain any
application before the probate court and his
remedy would lie elsewhere. This view has been
taken by the Hon’ble Supreme Court in the case of
Krisha Kumar Birla vs. Rajendra Singh Lodha &
Ors, reported in (2008) 4 SCC 300.
06. Furthermore, the scope of proceeding in a LOA
Patna High Court FA No.175 of 1999 dt.30-06-2025
22/45
case or probate case is very limited. In the case of
Ishwardeo Narain Singh vs. Smt. Kumta Devi &
Ors., reported in AIR 1954 SC 280, the Hon’ble
Supreme held that Probate Court has only to
decide as to whether the document put-forward is
last Will and testament of the deceased person and
was duly executed and attested in accordance with
the law and whether the testator was of sound
mind. Therefore, any question of title cannot be
gone into in a probate proceeding and construction
of Will relating to right, title and interest of any
person is beyond the domain of probate court, and
hence the Probate Court is not competent to
determine the question of title or nature of
ownership of the property of the testator or even
the existence of property itself. (emphasis
supplied)’
24. By making the aforesaid submissions and
relying upon the aforesaid decisions, the learned counsel for the
appellants has submitted that the impugned judgment and decree
cannot be sustained since the trial court despite concluding that
the Will in question having been duly executed by the testator
has then proceeded on an erroneous application of law to refuse
the grant of probate and therefore, the present appeal deserves to
be allowed.
25. Learned Senior counsel for the respondents
supported the impugned judgment and decree refusing to grant
Patna High Court FA No.175 of 1999 dt.30-06-2025
23/45
probate in favour of the appellants and has submitted that after
the death of the testator-Matukdhari Singh the property covered
under the Will was inherited by his brother Jagdhari Singh, his
heirs and successors, who inherited the property including the
lands and house covered under the disputed Will and thereafter,
they came in possession over the said property. Further, the
learned Senior Counsel has emphasised that the brother of the
testator i.e. Jagdhari Singh never appeared in the aforesaid
probate case to give his evidence and no explanation for the
same has been given.
26. Learned Senior Counsel for the respondents
has also submitted that said Jagdhari Singh had performed the
Shradh ceremony of the testator-Matukdhari Singh after selling
some lands covered under the disputed Will through different
registered sale deeds and also Jagdhari Singh had gifted some
land and house covered under the disputed Will to the caveator –
Suresh Prasad Singh vide registered gift deeds dated 02.11.1977
and 18.01.1979 and thereafter the said caveator-Suresh Prasad
Singh acquired the possession thereon as donee. He has also
pointed out that the disputed Will was registered on 28.11.1978
ie. after the death of testator in collusion with Sub-Registrar and
identifier – Sidheshwar Singh.
Patna High Court FA No.175 of 1999 dt.30-06-2025
24/45
27. Learned Senior Counsel for the respondents
has further submitted that the original appellant / plaintiff in
collusion with the scribe and attesting witnesses has brought the
Will into existence and therefore, the Will is forged and
fabricated one. To elaborate this submission, learned Senior
Counsel for the respondents has submitted that the recital of the
Will and the signature of the testator are without date and
without any endorsement.
28. Learned Senior Counsel for the respondents
has also drawn the attention of this Court to the fact that the
scribe of the Will could not explain the circumstances under
which he came to the village -Teldiha since the Will was
executed in Teldiha village and the scribe was not from the said
village. Further, to make out of case for suspicious
circumstances surrounding the Will, the learned Senior Counsel
has further argued that according to the deposition of P.W.-3
(Vinayak Singh) the Will was executed only on one side of the
page however, the Will has been written on both the sides of the
page.
29. It has been submitted by learned Senior
Counsel for the respondents that even the signature of third
witness on the Will is doubtful as P.W.-2 Sidheshwar Singh has
Patna High Court FA No.175 of 1999 dt.30-06-2025
25/45
categorically stated that after his signature on the Will, no one
had put signature on the said Will but, the Will indicates that
after the signature of P.W.-2 there is one another signature of
witness namely, Ramji Tiwary, which is in a different ink.
30. By making the aforesaid submissions,
learned Senior Counsel for the respondents has submitted that
the impugned judgment and decree does not suffer from any
illegality and therefore, the same does not warrant any
interference by this Court .
31. Considered the submissions of the parties.
32. The records of the case reveal that the
testator-Matukdhari Singh had executed a Will in favour of
original appellant / plaintiff- Chuman Narain Singh.
Consequently, the executor of the Will namely, Chuman Narain
Singh preferred a probate case for grant of probate in his favour.
Upon contest by the caveator-Suresh Prasad Singh, the aforesaid
probate case was converted into a title suit. The learned trial
court after framing the issues, decided to take the issue no.5 first
as the same relates to the execution of the Will by the testator in
a sound state of body and mind. The aforesaid issue was decided
in favour of the original appellant / plaintiff but the remaining
issues were decided against him.
Patna High Court FA No.175 of 1999 dt.30-06-2025
26/45
33. The trial court had duly considered the
statements of the attesting witnesses while deciding the issue
no.5, inasmuch as, P.W.-1-Ramadhar Mishra had categorically
stated that the Will was scribed by the scribe-Vinayak Singh on
the instructions of the testator, at village Teldiha and thereafter
the scribe-Vinayak Singh had read over the contents of the Will
to the testator. Subsequently, the testator himself read the Will
and finally signed the aforesaid Will. This witness has stated that
the testator had signed the aforesaid Will in his presence and
thereafter this witness and other attesting witness and the scribe
had put their signatures on the Will. The Court had noted that
the signature of this attesting witness, P.W.-1-Ramadhar Mishra,
was never challenged.
34. P.W.-2-Sidheshwar Singh, another attesting
witnesses, has also supported the execution of the Will,
inasmuch as, this witness has stated that the testator had put his
signature in his presence and subsequently the other attesting
witnesses had put their signatures on the request of the testator.
P.W.-3 Vinayak Singh has also stated that he was the scribe of
the Will in question and that he had drawn the Will on the
instructions of the testator and thereafter it was read over to the
testator.
Patna High Court FA No.175 of 1999 dt.30-06-2025
27/45
35. The trial court after considering the
statements of the witnesses and relying heavily on the report of
the fingerprint and handwriting expert (Exhibit-3) had
concluded that the testator-Matukdhari Singh was in sound state
of body and mind while executing the Will in question and that
the signature on the Will marked as Exhibit-1 is that of the
testator himself. The court had noted that the defendants had not
challenged the signature of the testator. Finally, the trial court
concluded that the Will in question was duly executed by the
testator-Matukdhari Singh. At this stage, it is pertinent to note
that the the respondents have not preferred to file a cross
appeal / cross objection against the aforesaid issue decided
against them.
36. It would be relevant to refer to a decision of
the Hon’ble Supreme Court in the case of Banarsi & Ors. vs.
Ram Phal reported (2003) 9 SCC 606 wherein the Hon’ble
Supreme Court had held as under :-
“8. Sections 96 and 100 CPC make provision
for an appeal being preferred from every
original decree or from every decree passed
in appeal respectively; none of the
provisions enumerates the person who can
file an appeal. However, it is settled by a
long catena of decisions that to be entitled
to file an appeal the person must be one
Patna High Court FA No.175 of 1999 dt.30-06-2025
28/45aggrieved by the decree. Unless a person is
prejudicially or adversely affected by the
decree he is not entitled to file an appeal.
(See Phoolchand v. Gopal Lal [AIR 1967
SC 1470 : (1967) 3 SCR 153] , Jatan
Kumar Golcha v. Golcha Properties (P)
Ltd. [(1970) 3 SCC 573] and Ganga Bai v.
Vijay Kumar [(1974) 2 SCC 393] .) No
appeal lies against a mere finding. It is
significant to note that both Sections 96 and
100 CPC provide for an appeal against
decree and not against judgment.
9. Any respondent though he may not have
filed an appeal from any part of the decree
may still support the decree to the extent to
which it is already in his favour by laying
challenge to a finding recorded in the
impugned judgment against him. Where a
plaintiff seeks a decree against the
defendant on grounds (A) and (B), any one
of the two grounds being enough to entitle
the plaintiff to a decree and the court has
passed a decree on ground (A) deciding it
for the plaintiff while ground (B) has been
decided against the plaintiff, in an appeal
preferred by the defendant, in spite of the
finding on ground (A) being reversed the
plaintiff as a respondent can still seek to
support the decree by challenging the
finding on ground (B) and persuade the
appellate court to form an opinion that in
spite of the finding on ground (A) being
reversed to the benefit of the defendant-
Patna High Court FA No.175 of 1999 dt.30-06-2025
29/45appellant the decree could still be sustained
by reversing the finding on ground (B)
though the plaintiff-respondent has neither
preferred an appeal of his own nor taken
any cross-objection. A right to file cross-
objection is the exercise of right to appeal
though in a different form. It was observed
in Sahadu Gangaram Bhagade v. Special
Dy. Collector, Ahmednagar [(1970) 1 SCC
685 : (1971) 1 SCR 146] that the right
given to a respondent in an appeal to file
cross-objection is a right given to the same
extent as is a right of appeal to lay
challenge to the impugned decree if he can
be said to be aggrieved thereby. Taking any
cross-objection is the exercise of right of
appeal and takes the place of cross-appeal
though the form differs. Thus it is clear that
just as an appeal is preferred by a person
aggrieved by the decree so also a cross-
objection is preferred by one who can be
said to be aggrieved by the decree. A party
who has fully succeeded in the suit can and
needs to neither prefer an appeal nor take
any cross-objection though certain finding
may be against him. Appeal and cross-
objection — both are filed against decree
and not against judgment and certainly not
against any finding recorded in a judgment.
This was the well-settled position of law
under the unamended CPC.
10. The CPC amendment of 1976 has not
materially or substantially altered the law
Patna High Court FA No.175 of 1999 dt.30-06-2025
30/45except for a marginal difference. Even
under the amended Order 41 Rule 22 sub-
rule (1) a party in whose favour the decree
stands in its entirety is neither entitled nor
obliged to prefer any cross-objection.
However, the insertion made in the text of
sub-rule (1) makes it permissible to file a
cross-objection against a finding. The
difference which has resulted we will
shortly state. A respondent may defend
himself without filing any cross-objection
to the extent to which decree is in his
favour; however, if he proposes to attack
any part of the decree he must take cross-
objection. The amendment inserted by the
1976 amendment is clarificatory and also
enabling and this may be made precise by
analysing the provision. There may be three
situations:
(i) The impugned decree is partly in
favour of the appellant and partly in
favour of the respondent.
(ii) The decree is entirely in favour
of the respondent though an issue
has been decided against the
respondent.
(iii) The decree is entirely in favour
of the respondent and all the issues
have also been answered in favour
of the respondent but there is a
finding in the judgment which goes
against the respondent.
11. In the type of case (i) it was necessary for
Patna High Court FA No.175 of 1999 dt.30-06-2025
31/45
the respondent to file an appeal or take
cross-objection against that part of the
decree which is against him if he seeks to
get rid of the same though that part of the
decree which is in his favour he is entitled
to support without taking any cross-
objection. The law remains so post-
amendment too. In the type of cases (ii)
and (iii) pre-amendment CPC did not
entitle nor permit the respondent to take
any cross-objection as he was not the
person aggrieved by the decree. Under the
amended CPC, read in the light of the
explanation, though it is still not necessary
for the respondent to take any cross-
objection laying challenge to any finding
adverse to him as the decree is entirely in
his favour and he may support the decree
without cross-objection; the amendment
made in the text of sub-rule (1), read with
the explanation newly inserted, gives him a
right to take cross-objection to a finding
recorded against him either while
answering an issue or while dealing with
an issue. The advantage of preferring such
cross-objection is spelled out by sub-rule
(4). In spite of the original appeal having
been withdrawn or dismissed for default the
cross-objection taken to any finding by the
respondent shall still be available to be
adjudicated upon on merits which remedy
was not available to the respondent under
the unamended CPC. In the pre-amendment
Patna High Court FA No.175 of 1999 dt.30-06-2025
32/45
era, the withdrawal or dismissal for default
of the original appeal disabled the
respondent to question the correctness or
otherwise of any finding recorded against
the respondent.
12. The fact remains that to the extent to
which the decree is against the respondent
and he wishes to get rid of it he should
have either filed an appeal of his own or
taken cross-objection failing which the
decree to that extent cannot be insisted on
by the respondent for being interfered, set
aside or modified to his advantage. The
law continues to remain so post-1976
amendment…
37. The final conclusion of the Hon’ble Supreme
Court in Banarsi (supra) is as under:-
13. We are, therefore, of the opinion that in the
absence of cross-appeal preferred or cross-
objection taken by the plaintiff-respondent
the first appellate court did not have
jurisdiction to modify the decree in the
manner in which it has done. Within the
scope of appeals preferred by the
appellants the first appellate court could
have either allowed the appeals and
dismissed the suit filed by the respondent in
its entirety or could have deleted the latter
part of the decree which granted the decree
for specific performance conditional upon
failure of the defendant to deposit the
money in terms of the decree or could have
Patna High Court FA No.175 of 1999 dt.30-06-2025
33/45
maintained the decree as it was passed by
dismissing the appeals. What the first
appellate court has done is not only to set
aside the decree to the extent to which it
was in favour of the appellants but also
granted an absolute and out-and-out decree
for specific performance of agreement to
sell which is to the prejudice of the
appellants and to the advantage of the
respondent who has neither filed an appeal
nor taken any cross-objection. (emphasis
supplied) ”
38. This Court in the case of Bhagwatia Devi vs.
Arjun Prasad Thathera reported as (2012) SCC OnLine Pat
558 : (2013) 2 PLJR 134, relying on the judgment of the
Hon’ble Supreme Court in the case of Banarsi (Supra) has
observed as under –
“17. The principles underlying the provision of
Order 41 Rule 22 is no longer res integra.
In the case of Banarsi v. Ram Phal, 2003
(9) SCC 606, their lordships have
considered this provision and laid down
that in a case where the challenge to a
finding by the court below, if succeeds,
would result in the modification/variation
of the decree, the respondent cannot be
permitted to do this in absence of a cross-
objection by him. It would be condign here
to notice their lordships’ observation:
“…A respondent may defend
Patna High Court FA No.175 of 1999 dt.30-06-2025
34/45
himself without filing any cross-
objection to the extent to which
decree is in his favour; however, if
he proposes to attack any part of
the decree he must take cross-
objection…”
39. In the present case, the issue no.5, originally
decided by the trial court vide impugned judgment and decree,
which was passed after duly considering the statements of the
witnesses and the documents on record but the original
defendants/ respondents have not preferred any cross-appeal or
cross-objection assailing the impugned judgment and decree to
the extent that the same is against them makes it impermissible
for this Court to consider the arguments challenging the
genuineness of the Will at this stage. Therefore, the conclusion
of the trial court decided under issue no.5 would remain intact.
40. Considering the aforesaid facts and also the
law laid down by the Hon’ble Supreme Court in the case of
Banarsi (supra), I am of the considered view that at this stage
this Court would not interfere with the aforesaid finding of the
trial court decided under issue no.5.
41. Now turning to the fact that the trial court
decided the issue nos.3 and 4 jointly, the import of which is
whether the Will executed by the testator – Matukdhari Singh in
Patna High Court FA No.175 of 1999 dt.30-06-2025
35/45
favour of the executor – Chuman Narain Singh was legal, valid
and genuine and further whether the original appellant / plaintiff
Chuman Narain Singh was entitled to get the relief of grant of
probate/LoA in respect of the property covered under the Will.
42. From a close reading of the impugned judg-
ment and decree, it appears that the trial court was of the opinion
that since, the property covered under the Will was in the nature
of undivided joint property, these issues were jointly decided
against the original appellant/ plaintiff.
43. In the case of Chiranjilal Shrilal Goenka vs.
Jasjit Singh reported as (1993) 2 SCC 507, the Hon’ble
Supreme Court relying on earlier judgment in the case of
Ishwardeo Narain Singh vs. Smt Kamta Devi (1953) 1 SCC
295 had held as under :-
“15. In Ishwardeo Narain Singh vs. Smt Kamta
Devi [(1953) 1 SCC 295 : 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
Patna High Court FA No.175 of 1999 dt.30-06-2025
36/45court. Therefore the only issue in a probate
proceedings 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
insofar 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 fascicule of the
provisions 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
appointment 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 of the existence of the property itself.”
44. It is a settled position that the scope of the
probate Court is very limited. The Hon’ble Supreme Court in the
case of Krishna Kumar Birla vs. Rajendra Singh Lodha
reported as (2008) 4 SCC 300 has held that the Probate Court
does not decide any question of title or of the existence of the
property itself. This principle has been reiterated in the case of
Pasupati Nath Das vs. Chanchal Kumar Das & Ors. reported
Patna High Court FA No.175 of 1999 dt.30-06-2025
37/45
as (2018) 18 SCC 547.
45. In Kanwarjit Singh Dhillon vs. Hardyal
Singh Dhillon & Others (2007) 11 SCC 357, the Hon’ble
Supreme Court has again reiterated that the Probate Court is not
competent to determine the question of title of the properties
forming subject-matter of a Will. The Probate Court has only to
decide as to whether the document put-forward is the last Will
and testament of the deceased person and was duly executed, in
sound state of body and mind, and attested in accordance with
law.
46. From the above discussions, it is clear that it
is not competent or proper for the probate court to determine the
question of title of the properties under a Will or the existence of
the properties. The question whether a particular bequest is good
or bad is not under the purview of the probate court.
47. Turning to the facts of the present case, the
trial court had decided issue nos.3 and 4 jointly against the
original appellant / plaintiff on the ground that the property
under the Will was undivided/joint property, which should not
be decided by the probate court and therefore, the findings
recorded under the aforesaid issues are erroneous and outside
the bounds of jurisdiction for the Court considering grant of
Patna High Court FA No.175 of 1999 dt.30-06-2025
38/45
probate. Having already decided that the Will in question was
duly executed by the testator-Matukdhari Singh, in a sound state
of body and mind, and having satisfied itself in the affirmative,
on the statutory requirements of proving the Will, it would be
improper for the trial court to refuse to grant probate merely
because the title of the testator is not established before the trial
court.
48. At this stage, it is pertinent to note that after
coming into force of the Hindu Succession Act, 1956, there is no
bar for execution of Will with respect to even joint family
property as provided under Section 30 of the Hindu Succession
Act, 1956. It would be apposite to refer to section 30 of the
Hindu Succession Act, which reads as under :-
“30. Testamentary succession.―1 Any Hindu
may dispose of by will or other
testamentary disposition any property,
which is capable of being so disposed of by
him or by her, in accordance with the
provisions of the Indian Succession Act,
1925 (39 of 1925), or any other law for the
time being in force and applicable to
Hindus.
Explanation.―The interest of a male Hindu
in a Mitakshara coparcenary property or
the interest of a member of a tarwad,
tavazhi, illom, kutumba or kavaru in the
property of the tarwad, tavazhi, illom,
Patna High Court FA No.175 of 1999 dt.30-06-2025
39/45kutumba or kavaru shall, notwithstanding
anything contained in this Act or in any
other law for the time being in force, be
deemed to be property capable of being
disposed of by him or by her within the
meaning of this 3 section.”
49. Section 30 of Hindu Successions Act, 1956
permits a member of a Mitakshara coparcenary to dispose of by
Will his undivided interest in the coparcenary property (re:
Article 367 (2), Part-1, Chapter-XIX ‘Wills’ of Mulla Hindu
Law 25th Edition).
50. What falls from a bare reading of the afore-
quoted provision of the Hindu Succession Act, 1956 is that a
male Hindu could very well dispose his interest in a Mitakshara
coparcenary property by Will or other testamentary disposition.
51. The High Court of Himachal Pradesh in the
case of Kartari Devi & Ors. vs. Tota Ram reported as MANU /
HP / 0114 / 1991, after referring to Section 30 of the Hindu
Succession Act, 1956, has held as under:-
“5. Now, it is to be seen how far Section 30 of
the Act has made inroads into the Hindu
Law. The Mitakshara system of Hindu law
recognises two modes of devolution of
property, namely, survivorship and
succession. The rule of survivorship applies
to Joint Hindu Family property whereas the
Patna High Court FA No.175 of 1999 dt.30-06-2025
40/45rule of succession applies to separate
property of the members of Joint Hindu
Family. Further, under the Mitakshara
system, every member of Joint Hindu
Family has only one undivided interest in
the joint property. The Joint Hindu Family
consists of all persons lineally descendant
from a common ancestor including their
wives and unmarried daughters. But a
coparcenaries is a much narrower body
and it includes only those persons who
acquire, by birth, an interest in the joint or
coparcenaries property and they are the
sons, grand sons and great grand sons of
the holder of joint property, in other words,
the three generations next to the holder in
unbroken male descent. No female can
become coparcener under the Mitakshara
law. Similarly, the ancestral property is the
property inherited by a male Hindu from
his father, father’s father or father’s father’s
father. The essential features of ancestral
property, according to the Mitakshara
system, are that the sons, grand sons and
great grand sons of the person who inherits
it acquire an interest in it by birth and their
rights attach to it at the moment of their
birth. As such, coparcenaries property
under Hindu law includes ancestral
property.
6. The Act has neither abolished the Joint
Hindu Family nor the Joint Hindu Family
property nor it has interfered with the
Patna High Court FA No.175 of 1999 dt.30-06-2025
41/45special rights of those who are members of
Mitakshara coparcenary body except in the
manner and to the extent mentioned in
sections 6 and 30 of the Act. In the present
case, we are concerned with Section 30,
which, alongwith its explanation, provides
that a male Hindu may dispose of his
interest in a Mitakshara coparcenary
property by way of a will. By the
explanation, the interest of a male Hindu
in a Mitakshara coparcener property has
been held to be the property capable of
being disposed of in accordance with the
provisions of the Indian Succession Act or
any other law for the time being in force
and applicable to Hindus. As the Indian
Succession Act provides for testamentary
succession by way of a will, it follows that
the interest of a male Hindu in
Mitakshara coparcenary property is
capable of being disposed of by way of a
will or other testamentary disposition. By
using a non-obstante clause, that is,
“notwithstanding anything contained in this
Act or any other law for the time being in
force”, the explanation to Section 30 has
been given an overriding effect. Even if
there is anything contrary in the Act or
any other law, which includes custom also,
the interest of a male Hindu in
Mitakshara coparcenary property is
capable of being disposed of by way of
will. In other words, the bar created by way
Patna High Court FA No.175 of 1999 dt.30-06-2025
42/45of custom that the coparcenary property is
not capable of being alienated by executing
a will by one of the coparceners is taken
away and rule of survivorship is finished to
a limited extent. But it continues to apply in
the case of gift and other alienations which
are inter vivos.
7. Therefore, in view of Section 30 of the Act,
which specifically provides that interest of
a male Hindu in Mitakshara coparcenary
property is capable of being disposed of by
way of will irrespective of any provision in
the Act or any other law to the contrary,
read with Section 4 of the Act, I hold
without any hesitation that any custom
prohibiting testamentary succession by
way of will of a coparcenary property
stands abrogated. In view of Section 30
read with Section 4 of the Act, a male
Hindu governed by Mitakshara system is
not debarred from making a will in respect
of coparcenary/ancestral property.
8. For taking this view, I have taken support
from Full Bench Judgment of Calcutta High
Court in Commissioner of Wealth Tax, West
Bengal, III Calcutta v. Sampatral Bhutoria
and Sons 1981 TLR 1550, wherein in para
17 it has been held as under:
“Again, Section 30 of the Act makes
provision for a male governed by
Mitakshara Law to dispose of by a
testament his interest in the
coparcenary property, in such a case
Patna High Court FA No.175 of 1999 dt.30-06-2025
43/45the provisions of sections 6 and 8
would not be applicable. The
general law of Mitakshara branch is
now repealed by Explanation to
Section 30 which lays down that
such interest of a Hindu male under
Mitakshara is to be deemed to be the
property capable of being disposed
of by will….
9. A similar view was taken by a Division
Bench of Madras High Court in S.V.
Sundaresan v. Assistant Controller of Estate
Duty Combater 1983 TLR 1438. In Para 16
it has been observed:
...According to the original
Mitakshara law, no coparcener, not
even a father could dispose of by
will his undivided coparcenary
interest even if the other
coparceners consent to the
disposition. This is because the
moment the coparcener died his
undivided interest devolved by
survivorship on the other
coparceners. The title by
survivorship was considered to take
precedence to the exclusion of that
by devise. This rule of Mitakshara
law has now been abrogated by
Section 30 and the Explanation
thereto Section 30 read with the
explanation only empowers a
coparcener to dispose of his
Patna High Court FA No.175 of 1999 dt.30-06-2025
44/45property by will in accordance with
the provisions of the Indian
Succession Act, 1925 or any other
law for the time being in force. The
section is confined only to
testamentary disposition and does
not cover disposition by way of gift
inter vivos….
52. The aforesaid view of the learned Single
Judge in Kartari Devi (supra) was upheld by the Division
Bench of the Himachal Pradesh High Court in Tek Chand and
Anr. vs. Mool Raj and Ors. reported as 1997 SCC OnLine HP
51. The view of the Division Bench of the Himachal Pradesh
High Court came to be approved by the Hon’ble Supreme Court
in Shyam Lal vs. Sanjeev Kumar and Ors. reported as
MANU/SC/0576/ 2009.
53. In light of the above discussions, it is clear
that a male Mitakshara Hindu could dispose of his undivided
interest in coparcenary property and therefore, it follows that it
is inescapable that the issues nos. 3 and 4, as well as, issues 1
and 2 decided against the original plaintiff is not sustainable on
the ground that the trial court has declined to grant probate only
on the ground that the property under the Will was undivided /
joint property.
54. Accordingly, the findings recorded against
Patna High Court FA No.175 of 1999 dt.30-06-2025
45/45
the appellants under issue nos.1 to 4 are hereby reversed and the
application for probate is hereby granted in favour of the present
appellants.
55. In view of the above, this appeal stands
allowed in part. The impugned judgment and decree of the trial
court is hereby modified to the extent as indicated in the
preceding paragraphs.
(Sandeep Kumar, J)
pawan/-
AFR/NAFR N.A.F.R. CAV DATE N/A Uploading Date 04.07.2025 Transmission Date 04.07.2025