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2012 DIGILAW 1104 (GAU)

Ka Riverretta Diengdoh v. Ka Trially Sararymbai

2012-09-14

BROJENDRA PRASAD KATAKEY

body2012
JUDGMENT B.P. Katakey, J. 1. This appeal under Section 299 of the Indian Succession Act, 1925 (in short the 1925 Act), is directed against the judgment and order dated 22.09.2008 passed by the learned Judge, District Council Court, Shillong, in Probate Misc. Case No. 1/2000, rejecting the application filed by the appellant for probate of the Will executed by the appellant's father. The appellant filed an application seeking probate of a Will executed by her father on 06.02.1999, in the Court of learned Judge, District Council Court, Shillong, which was registered and numbered as Probate Misc. Case NO. 1/2000, contending inter alia that by the said Will her father bequeathed the property belonging to him in her favour, in presence of the witnesses and when he was in the disposition state of mind. The said proceeding was contested by the respondents by filing joint written objection stating inter alia that the Will was obtained by the petitioner by fraud and misrepresentation of facts. It has also been pleaded that the testator did not have any right whatsoever to execute the Will as the property sought to be bequeathed is an ancestral property of Rymbai clan of Saitsohpen descended from the womb of late Ka Bei Rymbai and not the self acquired property of the testator and as such he does not have the right to bequeath the property by means of a Will. It has also been contended that late H.C. Rymbai, the father of the appellant who was merely managing and looking after the property on behalf of the Rymbai clan being the surviving elder uncle, has converted the patta in his name fraudulently without the consent of Rymbai clan, thereby converting the ancestral property as his own, which is absolutely illegal and against the Khasi custom of inheritance. 2. On the basis of the pleadings, the Court has framed the following issues:- (i) Whether the application for grant of probate filed by the petitioner is maintainable in law? (ii) Whether this Court has jurisdiction to grant the probate prayed for? (iii) Whether late Cheselington; Rymbai executed a Will dt. 6.2.1999 in respect of the land and houses in favour of the petitioner? If so whether he is qualified and competent to do so? (iv) Whether the will was obtained by the petitioner by fraud and misrepresentation of facts? (ii) Whether this Court has jurisdiction to grant the probate prayed for? (iii) Whether late Cheselington; Rymbai executed a Will dt. 6.2.1999 in respect of the land and houses in favour of the petitioner? If so whether he is qualified and competent to do so? (iv) Whether the will was obtained by the petitioner by fraud and misrepresentation of facts? (v) Whether the petitioner is the qualified executor of the will dt. 6.2.1999? (vi) Whether the testator has right or competent to execute the will of the property sought for to be bequeathed? (vii) Whether the said property was first owned by late Ka Bei Rymbai? (viii) Whether the property included in the said will is the ancestral property of the Rymbai clan of Saisohpen? (ix) Whether the original patta of the property in dispute was in the name of (L) Ka Wesina Rymbai and after her death the said property was looked after and managed by late U. Woslington Rymbai? (x) Whether late U. Cheselington Rymbai can convert the ancestral property to be his own property according to khasi custom of inheritance? (xi) What relief or reliefs the parties are entitled to? 3. The appellant in support of her claim for grant of the probate while examined 6(six) witnesses including herself and proved a number of documents including the Will (Ext.-1), the respondents examined 3(three) witnesses including the respondent No. 1 herself and also proved a number of documents. 4. The learned Judge, District Council Court, though answered the issue No. 3 in favour of the appellant by holding that the valid execution of the Will could be proved by the appellant, answered the issue Nos. 7 and 8 against the appellant by holding that the property bequeathed by the father of the appellant being not his self acquired property but the ancestral property of Rymbai clan of Saitsohpen, the appellant is not entitled to probate of the Will. The issue Nos. 9 and 10 were also decided against the appellant. Consequently the learned Judge has rejected the application seeking probate of the Will. Hence the present appeal. 5. I have heard Mr. T.T. Diengdoh, learned counsel for the appellant and Mr. H.S. Thangkhiew, learned Sr. counsel appearing for the respondents. 6. The issue Nos. 9 and 10 were also decided against the appellant. Consequently the learned Judge has rejected the application seeking probate of the Will. Hence the present appeal. 5. I have heard Mr. T.T. Diengdoh, learned counsel for the appellant and Mr. H.S. Thangkhiew, learned Sr. counsel appearing for the respondents. 6. The learned counsel for the appellant referring to the impugned judgment and order passed by the learned Judge, District Council Court and also the different provisions of the 1925 Act, has submitted that since in a probate proceeding under the provisions of the said Act; the question of title to the property cannot be gone into except the question whether there was valid execution of the Will and the same could be proved as required under the law, the Court below ought not to have rejected the application filed by the appellant seeking probate of the Will executed by her father by holding that the property bequeathed being not the self acquired property of the testator, no probate can be granted, though the Court below has held that the appellant could prove due and valid execution of the Will by the testator. The learned counsel referring to the provisions of Meghalaya Succession of Self Acquired Property (Special Provision) Act, 1984 (in short the 1984 Act) as well as the notification issued by the Govt. of Meghalaya on 28.08.1987 under Section 8 of the said Act, which was published in the official Gazette on 29.08.1987, has submitted that since the provisions of the grant of the probate of the Will in 1925 Act are made applicable to the Khasis and Jaintias in the State of Meghalaya, the learned Judge, District Council Court had no jurisdiction to go into the question of title over the property bequeathed and refused to grant the probate of the Will. The learned counsel in support of his contention has placed reliance on the judgment passed by the Apex Court in Kanwarjit Singh Dhillon Vs. Hardyal Singh Dhillon & Ors. reported in (2007) 11 SCC 357 . 7. The learned Sr. The learned counsel in support of his contention has placed reliance on the judgment passed by the Apex Court in Kanwarjit Singh Dhillon Vs. Hardyal Singh Dhillon & Ors. reported in (2007) 11 SCC 357 . 7. The learned Sr. counsel appearing for the respondents, on the other hand, has submitted that under the 1984 enactment Khasi and Jaintia of sound mind, not being a minor, can dispose of only his self acquired property by a Will, notwithstanding anything contained in the 1925 Act or custom and hence the probate Court in a probate proceeding has to go into the question whether the property bequeathed was the self acquired property of the testator, before going into the question as to the valid execution of the Will, the learned Sr. counsel, however, has submitted that in this case there is no dispute relating to due execution of the Will. The learned, Sr. counsel further submits the provisions of the State Act being the special provisions enabling the Khasi and the Jaintia to dispose of self acquired property by a Will, the same will prevail upon the provisions contained in the 1925 Act. The learned Sr. counsel further submits that even though by the notification dated 28.08.1987 issued by the Govt. of Meghalaya, in exercise of the power conferred by Section 8 of the 1984 Act, apply certain provisions of 1925 Act to a proceeding instituted under the provisions of 1984 Act, it cannot be said that the question as to whether the property bequeathed is the self acquired property of the testator cannot be gone into by the probate Court in a probate proceeding, having regard to the provisions contained in the 1984 Act. The learned Sr. counsel further submits that even assuming that the probate Court in a probate proceeding cannot go into the question of title over the property bequeathed by a Will, and the same is required to be gone into by a Civil Court having jurisdiction over the matter, in the instant case, the learned Judge, District Council Court, which is also a Civil Court, has framed the issues relating to the question of title over the property and on the basis of the evidences adduced by both the parties decided the same and hence such finding may not be disturbed by this Court. The learned Sr. The learned Sr. counsel, therefore, submits that the law laid down by the Apex Court in Kanwarjit Singh Dhillon (supra) has no application in the case in hand, in view of the provisions contained in the 1984 Act. The learned Sr. counsel in support of his contention has placed reliance on a decision of the Apex Court in Arun Kumar & Ors. Vs. Union of India & Ors. reported in (2007) 1 SCC 732 . 8. I have considered the submissions advanced by the learned counsel for the parties, and also perused the materials available on record including the impugned judgment and order passed by the Court below. 9. The Govt. of Meghalaya has enacted the 1984 Act, which was published in the Gazette of Meghalaya on 3rd of June, 1986, after receipt of the accent of the President on 23rd May, 1986. Section 4 of the said Act empowers a Khasi and Jaintia of sound mind, not being a minor to dispose of his self acquired property by a Will, on or after commencement of the Act and notwithstanding anything contained in the 1925 Act or custom. For better appreciation, Section 4 of the said Act is reproduced below:- 4. On and after the commencement of this Act, and notwithstanding anything contained in the Indian Succession Act, 1925 or customs, it shall be lawful for a khasi and Jaintia of sound mind, not being a minor, to dispose of his self-acquired property by will. 10. Section 8 of the 1984 Act empowers the Govt. of Meghalaya to issue notification applying the provisions of 1925 Act either with or without the exceptions and modifications as specified in such notification, relating to the mode, manner and procedure for and all matters relating to making a Will under the said Act and for its execution, probate and administration. Section 8 of the said Act is also reproduced below:- 8. The mode, manner and procedure for and all matters relating to making a will under this Act and for its execution; probate and administration shall be in accordance with such of the provisions of the Indian Succession Act, 1925 as the Government of Meghalaya may, by notification, apply, or may apply them with such exceptions and modifications as may be specified in the notification. 11. 11. Both the parties have accepted the applicability of the 1984 Act in the case in hand, which lays down the law relating to the disposition of the property by a Khasi or Jaintia by Will after commencement of the said Act and notwithstanding anything contained in the 1925 Act. By notification dated 28.08.1987 issued by the Govt. of Meghalaya the provisions of the 1925 Act, mentioned therein, in the matter of mode, manner and procedure for and all the matters relating to making of the Will and its execution, probate and administration under the 1984 Act, have been made applicable, since there is no provision made in that respect in the 1984 Act. The same was done in exercise of the power conferred by Section 8 of the 1984 Act, which empowers the Govt. of Meghalaya to apply such provisions of 1925 Act in that regard with such exceptions and modifications. The said notification, for better application, is reproduced below: GOVERNMENT OF MEGHALAYA ORDERS BY THE GOVERNOR LAW DEPARTMENT NOTIFICATION (Published in the Gazette of Meghalaya, Extra-Ordinary issue dated 29th August, 1987) The 28th August, 1987 No. LL(B)123/82/Pt/246.-Whereas, under Section 8 of Meghalaya Succession to Self-Acquired Property (Khasi and Jaintia Special Provision) Act, 1984 (Meghalaya Act 7 of 1986) the mode, manner and procedure for and all matter relating to making a will under the Meghalaya Act aforesaid and for its execution, probate and administration shall be in accordance with such of the provisions of the Indian Succession Act, 1925 as the Government of Meghalaya may, by notification, apply, or may apply them with such exception or modifications as may be specified in the notification; Now, therefore, the Government of Meghalaya, for the purposes aforesaid and in exercise of the powers conferred by Section 8 of the said Meghalaya Act, hereby apply the provisions of the following sections of the Indian Succession Act, 1925 (Central Act 39 of 1925) as mentioned in column (1) of the Schedule below and subject to the exceptions or modification as specified in column (2) thereof. These orders shall come into force with effect from the 1st September, 1987 the date on which the aforesaid Meghalaya Succession to Self-Acquired Property (Khasi and Jaintia Special Provision) Act, 1984 comes into force. D.R. RYMMAI, Secy. to the Govt. of Meghalaya, Law Department 12. The Govt. These orders shall come into force with effect from the 1st September, 1987 the date on which the aforesaid Meghalaya Succession to Self-Acquired Property (Khasi and Jaintia Special Provision) Act, 1984 comes into force. D.R. RYMMAI, Secy. to the Govt. of Meghalaya, Law Department 12. The Govt. of Meghalaya by the aforesaid notification dated 28.08.1987, apart from others made applicable Sections 222 to 242, Sections 244, 245, 247 to 249, Sections 251 to 263, Section 264 excepting subsection (2) thereof, Sections 265 to 268, Sections 269 excepting sub-section (2) thereof, Sections 270 to 272, Sections 273 excepting the last two paragraphs below the proviso thereof, Sections 274 to 299, Section 300 excepting sub-section (2) thereof, Sections 301 to 306, Sections 308 to 312, Sections 317 to 319, Sections 368 and 369 of Part-IX of the 1925 Act. Part-IX of the 1925 Act deals with the probate, letters of administration and administration of estates of deceased. It also provides for probate of a Will, amongst others. Hence the procedure for probate of a Will as provided in Part-IX of the 1925 Act has also been made applicable in respect of the probate of a Will executed under the provisions of 1984 Act. There is, however, certain exception or modification notified under the said notification, namely, the definition of 'District Judge' in Section 2(bb) stands modified as inclusive of the Deputy Commissioner and Addl. Deputy Commissioner of the District, Judge and Addl. Judge and a District Council Court. The term 'estate' or 'property', wherever occurring in any of the Sections mentioned in column 1(1) of the Schedule to the said notification also have been modified to the extent that the same shall be construed as referring only to 'self-acquired property' as defined in 1984 Act. The term 'self-acquired property' has been defined in 1984 Act as any property, whether movable or immovable or any right, title or interest on any such property, which is vested in any Khasi and Jaintia, which is not inherited as ancestral property. Section 3(a) of the 1984 Act defines the term 'Khasi and Jaintia', which is an inclusive definition, which means and includes Khasi, Jaintia, Synteng, Pnar, War, Bhoi and Lyngngam. 'Will' is defined in Section 3(e) as the legal declaration of the intention of a testator with respect to the self-acquired property vested in him which he desires to be carried into effect after his death. 'Will' is defined in Section 3(e) as the legal declaration of the intention of a testator with respect to the self-acquired property vested in him which he desires to be carried into effect after his death. 13. The District Council Court, therefore, is competent to entertain an application seeking probate of a Will executed by a Khasi and Jaintia under the provisions of 1984 Act, who is to follow the procedure as laid down in Part-IX of the 1925 Act in the proceeding initiated before him for probate of the Will executed under the 1984 Act. The District Council Court, therefore, is a probate Court. Though the probate of a Will is a civil proceeding, in contemplation of law it is solely an inquiry as to the validity of a certain paper writing whether it is or is not the last Will and testament of the deceased and the judgment or the decree in such case passed by the probate Court is either that it is or is not such a Will. The probate proceeding thus is a proceeding to establish the validity of the Will and not a regular suit, and its inquiry is limited to the question as to whether the document to be forwarded as the last Will and testament of the 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. 14. The Apex Court in Ishwardeo Narain Singh Vs. Smt. Kamta Devi & Ors. reported in AIR 1954 SC 280 , in para 2 thereof, has held as under: 2...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.... 15. The law laid down in Ishwardeo Narain Singh (supra) has been reiterated by the Apex Court in Chiranjilal Shrilal Goenka Vs. Jasjit Singh & Ors. The question whether a particular bequest is good or bad is not within the purview of the Probate Court.... 15. The law laid down in Ishwardeo Narain Singh (supra) has been reiterated by the Apex Court in Chiranjilal Shrilal Goenka Vs. Jasjit Singh & Ors. reported in (1993) 2 SCC 507 , to the effect, that the only issue in a probate proceeding is the genuineness and due execution of the Will. The Probate Court does no more than establish the factum of the Will and the legal character of the executor. It does not decide any question of title or of the existence of the property itself. The Apex Court further held that a decree passed by a Court without jurisdiction on the subject matter or on the grounds on which the decree made which goes to the root of its jurisdiction or lacks inherent jurisdiction is a coram non Judice. A decree passed by such a Court is a nullity and is non est. Its invalidity can be set up whenever it is sought to be enforced or is acted upon as a foundation for a right, even at the stage of execution or in collateral proceedings. It has further been held that the defects of jurisdiction strikes at the very authority of the Court to pass decree which cannot be cured by consent or waiver of the party. 16. The Apex Court in Arun Kumar (supra) has held that the existence of jurisdictional fact is sine qua non for the exercise of power by the Court or the Tribunal. If the jurisdictional fact exists, the authority can proceed with the case and take an appropriate decision in accordance with law. Once the authority has jurisdiction in the matter on existence of jurisdictional fact, it can decide the fact in issue or adjudicatory fact. 17. In Kanwarjit Singh Dhillon (supra) while dealing with the question as to whether the suit for declaration of title and injunction is maintainable after probate of the Will executed by the testator, the Apex Court has reiterated its earlier view that the Probate Court is not competent to determine the question of title of the suit property nor can it go into the question whether the suit property bequeathed by the Will were joint ancestral property or acquired property of the testator. 18. 18. In the case in hand, as noticed above, the probate Court though, while answering the question against issue No. 3, has held that the valid execution of the Will could be proved, and such valid execution has also not been challenged by the respondents, has however refused to grant the probate of the Will (Ext.-1), as it has been decided by the Probate Court that the property bequeathed by the Will was not self-acquired property of the testator. The said question relating to the title, in view of the aforesaid discussion as well as the law aid down by the Apex Court, cannot be gone into by a Probate Court in a probate proceeding, even though 1984 Act authorizes a Khasi or Jaintia to dispose of the only self-acquired property by a Will. The question of title over the property bequeathed or whether it is was self-acquired property or not, has to be gone into in an appropriate suit and not in a probate proceeding, such proceeding being in the nature of an inquiry only relating to the genuineness and due execution of the Will. The contention of the learned Sr. counsel for the respondents that since the question of title over the property has already been gone into by a Probate Court, the same also being a Civil Court, such finding relating to the title over the property may not be disturbed in the appeal, even though the Probate Court as such cannot go into the question of title over the property, cannot be accepted in view of the fact that the Probate Court had no jurisdiction to go into such question and hence that part of the decree relating to the question of title, passed by the Probate Court is a nullity and is nonest in the eye of law. 19. In view of the aforesaid discussion, the judgment and order passed by the Probate Court is set aside. The probate of the Will and the testament dated 06.02.1999 (Ext.-1) is granted. It is, however, open to the parties to approach appropriate Civil Court having jurisdiction over the matter for declaration of right, title and interest over the land in question, where the probate could be admitted into evidence by the Civil Court to decide the suit for title. The probate of the Will and the testament dated 06.02.1999 (Ext.-1) is granted. It is, however, open to the parties to approach appropriate Civil Court having jurisdiction over the matter for declaration of right, title and interest over the land in question, where the probate could be admitted into evidence by the Civil Court to decide the suit for title. Grant of probate, however, cannot be decisive for declaration that the suit property was the self-acquired property of the testator. The appeal is accordingly allowed. The parties, however, are directed to bear their own cost throughout. Appeal allowed