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2015 DIGILAW 1805 (BOM)

Ratnaprabha v. Kisan

2015-08-06

A.P.BHANGALE

body2015
JUDGMENT : 1. The appeal is to challenge the validity and legality of the impugned Judgment and order dated 17.10.2004 passed by the Civil Judge Senior Division Khamgaon in Probate case no. 12 of 2010. 2. According to learned Advocate for the appellants the Testator late Mr. Prabhakar Ramrao Ugwekar had no legal right, title and interest in the property mentioned in the alleged Will, made by him. The will was registered after the death of the Testator. It was therefore shrouded with suspicion as propounder played active role to get it registered after the death of the alleged Testator. 3. The facts are, thus: In the Special Civil Suit No.3 of 1978 decided on 31.08.1984 was decreed for Partition. The suit was filed by the appellant Ratnaprabha for Partition and Possession of the suit land. She was held entitled to share 3/15 in the suit property. The propounder of the alleged Will had heavy burden to discharge to establish that the Testator had full right, title and interest in the subject property to dispose of the same by the Will. Propounder failed to discharge it. The burden never shifted upon the appellants. 4. Learned Advocate Mr Bhide for the appellant referred to the ruling in the case of Raghunath Rajaram Patil Vs. Harischandra Pandurang Gaikwad, reported at 2006(1) Mah LJ 79. In this case Single Judge of this Court held that that there was no dispute between the parties about the powers delegated to the Civil Judge Senior Division to decide the Probate application. This Court had decided that the issue when it arose as ought to have been decided because when the claim for probate was disputed it was duty of the court to frame the issue and decide it. Shri Bhide argued for remanding the matter back to the Probate Court on the ground that the Court is obliged to decide the contentious issue if any. 5. Mr Bhide also referred to The Division Bench ruling of this Court in the case of Nola Jonathan Ranbhise Vs. Union of India reported at 2014 (3) Bom. Shri Bhide argued for remanding the matter back to the Probate Court on the ground that the Court is obliged to decide the contentious issue if any. 5. Mr Bhide also referred to The Division Bench ruling of this Court in the case of Nola Jonathan Ranbhise Vs. Union of India reported at 2014 (3) Bom. C.R. 641 in order to canvass the submission that the section 28 –A of the Bombay Civil Court Act, 1869 was held repugnant to the provisions in Indian Succession Act, 1925 and the was impliedly repealed .Under Section 299 of the Indian Succession Act, 1925 Appeals from orders of District Judge lie to the High Court as statutorily every order made by a District Judge by virtue of the powers hereby conferred upon him shall be subject to the appeal to the High Court in accordance with the provisions of the Code of Civil Procedure, 1908 (5 of 1908), applicable to appeals. 6. Learned advocate Mr. Bhangde for the respondent on the other hand relied upon the ruling in the case of Kanvarjit Singh Dhillon Vs Hardayal Singh Dhilon reported at (2007) 11 SCC 357 to canvass the submission that the contentious issue involving a serious question of the validity of the right, title and interest to the immovable property can be decided by only by the competent Civil court and not by the Probate Court with limited jurisdiction to examine , hear and decide the validity of the Will only. 7. I have considered the submissions at the Bar. It is by now well settled that the functions of a probate Court are to see whether the Will has been actually executed by the testator while in a sound disposing state of mind uninfluenced by any coercion or undue influence and whether the will has been duly attested. It is not competent for such Probate Court to determine whether the testator had or had not the valid legal right, interest and title to dispose of the property which he purports to dispose of by his Will. It is not competent for such Probate Court to determine whether the testator had or had not the valid legal right, interest and title to dispose of the property which he purports to dispose of by his Will. It is also not the function of the probate Court to determine serious questions of title to the immovable property nor will the probate Court go into the question whether the property disposed of by the Will was joint ancestral property or self-acquired immovable property of the testator or to find out whether the person making the bequest of certain property had valid and legal title to dispose of the same. The probate Court should also not decide who are the persons beneficially interested in the estate and the mootable question whether the power of the Testator to bequeath the property is good or bad according to law. It is not within domain/purview of the Probate Court examining complicated wider issues of little required to be determined by competent civil court. The probate Court is concerned with examining the validity of the Will only. The onus to prove the execution of a Will always lies in every case upon the person propounding the Will and he must satisfy the conscience of the Probate Court that the instrument so propounded is the last Will of a free and capable testator. If disinterested and satisfactory evidence in this respect has been brought on the record, the finding by the Probate Court in favour of the propounder would be justified. 8. Another rule, however, is that if circumstances exist which excite suspicion of the Probate Court and whatever their nature be, it is for those who propound the Will to remove such suspicion and to prove the fact that the testator knew the contents of the Will. It is only where this is done that the onus shifts to those who oppose the validity of the Will to prove fraud or undue influence or whatever reason they rely upon to displace the case of the propounder. 9. In the light of the observations by the Apex Court and the legal position mentioned above, rulings cited by Shri Bhide are not helpful to him canvass the submission that the present case shall be remanded to the Probate Court. No useful purpose can be served by adhering to such prayer. 9. In the light of the observations by the Apex Court and the legal position mentioned above, rulings cited by Shri Bhide are not helpful to him canvass the submission that the present case shall be remanded to the Probate Court. No useful purpose can be served by adhering to such prayer. In my considered opinion the remedy for the litigant raising the more serious and complicated issue as to challenge the validity of the legal right, title, interest of the Testator to dispose of the property which is mentioned in the Will is to file an independent Civil suit in the Competent Civil Court and to get the dispute finally decided in the suit so instituted in the competent Civil Court. 10. This is so because the Probate Court would have limited jurisdiction to examine and decide the Validity of the Will i.e. testamentary disposition only. Propriety of the Will and power of the testator to bequeath the property are two separate issues and one who questions the validity of the right, title and interest of the testator to dispose of the subject property cannot avoid the forum of the competent civil court in order to get the decision as to the legal right , title and interest of the testator to bequeath the property. Hence I do not find merit in the appeal. The appeal is dismissed with costs.