JUDGMENT Laxmi Kanta Mohapatra, CJ. 1. The judgment and order dated 24.05.2004 passed by the learned District Judge, Manipur East in Original Probate Suit No. 22 of 2000 has given rise to these two appeals. 2. The two defendants in the said probate Suit have filed the two appeals, the defendant No. 1 having filed FAO No. 4 of 2004 and the defendant No. 2 having filed the FAO No. 5 of 2004. The respondent No. 1 in both the appeals was the applicant/petitioner before the learned District Judge seeking for grant of probate in respect of a Will executed by his father late H. Dwijamani Dev Sharma on 04.4.1997 before his death on 28.2.2000. The case of the respondent No. 1 is that he is the executor name in the Will executed on 04.4.1997 by late H. Dwijamani Dev Sharma before his death on 28.2.2000 at his residence. It is the further case of the respondent No. 1 that the said will is the last Will and testament of late H. Dwijamani Dev Sharma and it had been executed in the presence of witnesses. The Will was registered in the office of the Sub-Registrar, H.Q. Imphal at Lamphel vide entry No. 932 dated 16.7.1998 and the original Will was in the custody of the Sub-Registrar. As per the said Will, the respondent No. 1, the deity, and H. Dwijamani Dev Sharma's sons and three grand sons and three daughters were the beneficiaries. As is evident from the application filed by the respondent No. 1 for grant of probate u/s 276 of the Indian Succession Act, 1925, several parcels of the properties have been bequeathed located at different places apart from movable properties such as books and cash. The prayer in the application was for grant of probate of the said will. Out of the two defendants who were appellants before this Court, the defendants filed their written statement whereas, the defendant No. 2 (the appellant in FAO No. 5 of 2004) filed an additional written statement. The plea taken by the defendant No. 1 is that the testator had executed two WILLS earlier in respect of the properties owned by him and those wills are required to be looked into to find out as to whether the impugned Will dated 4.4.1997 legally valid since the previous wills were not revoked. The plea taken by the defendant No. 1 is that the testator had executed two WILLS earlier in respect of the properties owned by him and those wills are required to be looked into to find out as to whether the impugned Will dated 4.4.1997 legally valid since the previous wills were not revoked. The execution of the will by the testator was also disputed by the defendant No. 1 on the ground that the testator was not capable of independently writing a will as he was suffering from chronic cerebral blood flow insufficiency, ishchaemic heart disease and was mostly bed ridden. It is also the case of the defendant No. 1 that the property mentioned in the Will dated 4.4.1997 did not belong to the testator and the testator having been influenced by some persons including those nominated in the Will executed the alleged Will to counter the family arrangement made in early 1962. It is also the case of the defendant No. 1 that in early part of 1962, there were only two earning members in the family i.e. the testator and defendant No. 1 himself. Both the testator and defendant No. 1 sold their respective properties in order to invest the sale proceed in urban property/construction etc. whereby the income of the defendant No. 1 has been inseparably amalgamated in the joint property. It is also stated by the defendant No. 1 that he invested his own earning to establish GPW College by running the family publication fund and the testator has wrongfully tried to bequeath the joint property. It was also stated by the defendant No. 1 that Testator became a prisoner under the control of the probate petitioner i.e. respondent No. 1 since 1967 when the testator filed O.S. No. 24 of 1967 in the Court of Munsif against the defendant No. 1 and other off-springs in relation to revocation of a Deed of Endowment and Deed of Settlement dated 1.2.1965 concerning plot No. 64-94-A within Imphal Municipality area under Patta No. 89/505 IWT. It is the case of the defendant No. 1 that the said property is recorded in the names of 5(five) sons of Testator and family deity and therefore such property could not have been bequeathed under the Will. It is the case of the defendant No. 1 that the said property is recorded in the names of 5(five) sons of Testator and family deity and therefore such property could not have been bequeathed under the Will. In respect of shop site plot No. 94(A), Thangal Bazar, a stand was taken by the defendant No. 1 that the same is recorded in the name of Balmukunda Dev and the name of Testator is only shown as Sevait. Reference was also made to some of the litigations between the parties in which share of both the defendants had been determined and therefore, the same could not have been bequeathed under the Will. 3. The defendant No. 2 filed a separate written statement to the application under section 226 of the Indian Succession Act, 1925 and also filed an additional written statement to the amended schedule of petition. Both the defendants raised objection with regard to ownership of the testator over property bequeathed under the Will. 4. On the basis of the pleadings of the parties, learned District Judge framed 3(three) issues for determination. Such as:- i) Whether the Testator Shri H. Dwijamani Dev Sharma executed his last "WILL" on 4.4.1997 before his death on 28.2.2000. ii) Whether the said "WILL" is a legally valid will or not? iii) Whether the petitioner (Present respondent No. 1) is entitled to get probate in respect of the "WILL" as prayed for? 5. While answering the issues, the learned District Judge came to the conclusions that the Testator was an educated person and was about 98 years of age at the time of his death. 2 years, 10 months prior to his death, the Will had been executed. He had held responsible position and had written many books before execution of the said Will. He, himself, had written the Will and had capacity to do so. Having found that the Will was executed by the Testator on 04.4.1997 as per law, the learned District Judge granted probate in respect of the said Will. 6. He had held responsible position and had written many books before execution of the said Will. He, himself, had written the Will and had capacity to do so. Having found that the Will was executed by the Testator on 04.4.1997 as per law, the learned District Judge granted probate in respect of the said Will. 6. So far as the objection of the defendants that at the time of the execution of the Will, Testator was no more owner of the landed properties was not considered by the learned District Judge on the ground that in an application u/s 226 of the Act for grant of probate, the Court is not called upon to decide title of the property bequeathed under the Will. 7. Shri N. Kumarjit, learned sr. counsel appearing for the appellant in FAO No. 4 of 2004 challenging the order of the learned District Judge submitted that the Will was not executed in accordance with law and the evidence adduced before the Court clearly establish that the Testator did not have the capacity to write a Will in his own hands. It was also submitted that the Original Will was not proved in accordance with law and there are uncertainties in the Will. All the interested persons were also not made parties in the Probate proceeding. A specific objection was also raised by the learned sr. counsel to the effect that there was a decree of a Civil Court in O.S. No. 2 of 1986 in respect of the land covered by patta No. 89/505 exhibited as Ext. B/22 wherein the said land was declared to be the joint family property. Therefore, the land covered under the said patta could not have been bequeathed under the Will, the Testator not being the sole owner of the said property. It was also contended that certain properties had been given on gift under Ext. C/15 and C/14 and those properties were also included in the Will. Learned sr. Counsel placed reliance on certain documents exhibited in course of the proceeding to substantiate the above submission. Similarly, Shri M. Bimol, learned counsel appearing for appellants in FAO No. 5 of 2004, in addition to submission made by the learned sr. C/15 and C/14 and those properties were also included in the Will. Learned sr. Counsel placed reliance on certain documents exhibited in course of the proceeding to substantiate the above submission. Similarly, Shri M. Bimol, learned counsel appearing for appellants in FAO No. 5 of 2004, in addition to submission made by the learned sr. counsel appearing for the Appellant in FAO No. 4 of 2004, cited some decisions and submitted that the Testator could not have bequeathed the properties of which he was not the owner. It was also contended by him that though the defendant No. 2 had filed a written statement, the same was not considered by the learned District Judge at all and so far as the objection raised by the defendant No. 2 is concerned, the impugned judgment is completely silent. According to the learned counsels, it is a fit case to remit the matter back to the learned District Judge for disposal afresh after considering the stand taken by both the defendants. 8. The first question to be decided in a probate proceeding is as to whether the Will on the basis of which probate is sought for had been executed in accordance with law or not. It is the case of the respondent No. 1 that his father late H. Dwijamani Dev Sharma had executed his last Will on 4.4.1997 in presence of witnesses and the said Will was registered in the Office of the Sub Registrar, Imphal and the receipt thereof was granted on 16.7.1998. The original Will was in the custody of the Sub Registrar and copy of the said Will along with its English translation had been filed by the respondent No. 1 along with the application under section 276 of the Indian Succession Act, 1925. 9. Both the defendants raised objection with regard to the capability of the Testator in writing the Will himself on the ground that the Testator was almost 96 years of age at time of execution of the said Will and was suffering from various diseases. The Testator was suffering from chronic cerebral blood flow insufficiency, ishchaemic heart disease with recurrent maelina all through 1980s and 1990s and was most bed-ridden. His hands were also shaking and therefore, under such mental and physical condition, he could not have written the Will himself. The Testator was suffering from chronic cerebral blood flow insufficiency, ishchaemic heart disease with recurrent maelina all through 1980s and 1990s and was most bed-ridden. His hands were also shaking and therefore, under such mental and physical condition, he could not have written the Will himself. Learned District Judge, on analysis of the evidence, came to the conclusion that the testator was an educated man and had occupied important positions in his life. The Testator had also written some books prior to execution of the Will and therefore, it cannot be said that he was not in a mental and physical condition to write the Will in his own hands. The learned counsel Shri T. Rajendra appearing for the respondent No. 1, not only relied on findings of the learned District Judge in this regard but also the evidence of P.W.-1, 2, 3 and 4 to establish his claim that the Testator was both physically and mentally fit to write the Will in his own hands. PW-1 is the respondent himself. He deposed before the Court that few days before the death of his father, he was asked by his father to collect a copy of the Will kept in the Almirah and it was also informed to him that the Original of the Will was in custody of the Sub-Registrar, Lamphel. The Will was executed by his late father in his own hand writing on 4th April, 1997. He proved the Will after production from the office of the Sub-Registrar, Lamphel which was marked as Ext. X-I, PW-2 is a witness to the said Will. He deposed that he is not related to the respondent No. 1 but has been living in a house adjacent to the house of the Testator since 1987. He had signed as a witness in the Will executed on 04.4.1997 in the house of the testator and another person had also signed the Will. PW-3 is another witness to the Will and he deposed before the Court that respondent No. 1 is his maternal uncle. He further deposed that on 4.4.1997 he was asked to come to the house of the Testator and on the request of the Testator he signed the Will as a witness. PW-3 is another witness to the Will and he deposed before the Court that respondent No. 1 is his maternal uncle. He further deposed that on 4.4.1997 he was asked to come to the house of the Testator and on the request of the Testator he signed the Will as a witness. PW-4 is, at the relevant time, was working as LDC in the Office of the Sub-Registrar and under orders of the Court he produced the envelope containing the original Will. All the four witnesses have been cross-examined by the defendants but I have found nothing in the cross-examination to discard their evidence. Both the attesting witnesses namely PW-2 and PW-3 are well educated and were aware of what they were doing. Both of them have consistently deposed that on the request of the Testator, they signed the Will as witnesses. Suggestions given by the defendants in the cross-examination were stoutly denied. So far as the mental and physical condition of the Testator is concerned, DW-2 was examined on behalf of the defendant No. 1. The said witness is a Doctor and was treating the Testator. He deposed before the Court that he was treating the Testator for about 15 years prior to his death. He further deposed that the Testator was suffering from chronic cerebral blood flow insufficiency, ishchaemic heart disease with recurrent maelina. However, he was of the opinion that the Testator was intellectually quite normal but was having recurrent giddiness tendency to loose consciousness on standing and transient weakness of limbs and blurring of vision. He was also of the opinion that the Testator was not suffering from significant cerebrovascular dementia and in cross-examination he clarified that a person who is suffering from chronic cerebral insufficienty, ishchaemic heart disease with recurrent malaena does not necessarily suffer from cerebrovascular dementia. On overall reading of the evidence of all these witnesses, it appears that the Testator was not in such a condition physically and mentally that he could not have written a Will in his own hand. 10. Much emphasis was given by the learned counsel appearing for the appellants with regard to age of the testator and it was contended that at the age of 95 years or 96 years, the testator could not be in a physical or mental condition to execute a Will. 10. Much emphasis was given by the learned counsel appearing for the appellants with regard to age of the testator and it was contended that at the age of 95 years or 96 years, the testator could not be in a physical or mental condition to execute a Will. In this connection, reference may be made to a decision of the Gauhati High Court in the case of Abhoy Chanran Nath Mazumdar -vs- Smt. Raimya Devi and ors reported in : AIR 1982 Gauhati 94. In the said reported judgment, the testator was above 80 years of age and was bed-ridden and suffering from asthma at the time of making the Will. On consideration of facts involved in the case, the Court did not accept the plea that the Will was validly executed. However, the Court further observed that a sound disposing mind implies soundness mind, memory and understanding. Reference may also be made to another decision of the Apex Court in the case of Sridevi & ors -vs-Jayaraja Shetty & ors reported in : AIR 2005 SC 780 . In the said reported case, the testator was about 80 years of age and died 15 days after execution of the Will. The Apex Court held that since both the attesting witnesses had proved sound and disposing state of testator, merely because the testator was 80 years of age and died 15 days after execution of the Will, it cannot be said that the Will was not duly executed. In the present case, as is evident from the evidence of PW-2, PW-3 and DW-2, the testator was in a sound mind and understood what he was doing at the time of execution of the Will even though he was about 95 years of age at the time of execution of the Will. 11. Holograph Will is a will executed by the executor himself. The Supreme Court in the case of Joyce Primrose Prestor (Mrs.) (NEE VAS) -vs- Vera Marie Vas (Ms) & ors reported in : (1996) 9 SCC 324 observed that in case of a Hologaph Will i.e. a Will written by the testator, greater presumption of the Will being regularly executed arises. The said judgment was followed by the Gauhati High Court in the case of Dipty Chkraborty -vs- Santosh Kr. Chakraborty reported in : 2001(1) GLT 360. The said judgment was followed by the Gauhati High Court in the case of Dipty Chkraborty -vs- Santosh Kr. Chakraborty reported in : 2001(1) GLT 360. In the present case, the testator himself has written the Will in his own hand and therefore, there is greater presumption of the Will being regularly executed. 12. For the above reasons, I am in agreement with the view taken by the District Judge that the testator was in a fit mental and physical condition to write the Will in his own hands and that he was aware of what he was doing. The Will has also been attested by two witnesses in support of the execution thereof. 13. Another important point raised by the learned counsel appearing for the appellants is that at the time of execution of the Will, the testator was not owner of certain properties mentioned in the Will. Therefore, he could not have bequeathed those properties in favour of the beneficiaries mentioned therein. Reliance is placed by the learned counsel appearing for the appellants on a decree passed in O.S. No. 2 of 1986 by the Musif, Imphal, Manipur under Ext. B/22. The said suit was filed by the testator himself against the appellants and some other family members for declaration that the suit land described in Schedule "C" of the plaint is a part and parcel of 1/6 share of the testator and a prayer for eviction was also made. The suit was decreed in favour of the testator. Schedule "C" is a roof building/house made of wood and mud plastered wall measuring an area of 50 ft. from north to south and 20 ft from east to west standing on the north eastern corner of the land described in Schedule "A". Schedule "A" relates to CS Dag No. 630 measuring .87 acres. The said Schedule "A" land is patta No. 505. From the will, it appears that more than 1/6 share of the testator has been bequeathed. From Ext. C/11, it appears that old patta No. 89/386, 89/89 and 89/475 have been given a new number i.e. 505 stands in the name of all the parties which itself shows that the property was possibly a joint family property. From the will, it appears that more than 1/6 share of the testator has been bequeathed. From Ext. C/11, it appears that old patta No. 89/386, 89/89 and 89/475 have been given a new number i.e. 505 stands in the name of all the parties which itself shows that the property was possibly a joint family property. From Annexure C/14, it appears that an order of mutation was passed on the basis of a gift deed under which Plot No. 94/1 Pata No. 415 within Imphal Municipality comprising an area of .80 acres had been gifted in the name of Balmukunda Dev, family deity. This property appears to have been bequeathed under the Will. The testator appears to have made a deed of endowment on 29th March, 1968 for a temple and the said endowed property is also included in the Will. On the basis of these documents, it was contended by learned counsel appearing for the appellants that some of the properties bequeathed under the Will did not belong to the testator and therefore, no such will could be executed in respect of those properties. 14. Learned counsel appearing for the respondents submitted in reply that the learned District Judge while dealing with an application for grant of probate is only required to see whether the Will was executed properly or not. The Court is not required to see the title over the property. The learned counsel for the respondents relied upon on a decision of the Patna High Court in the case of Kamleshwari Devi (Deceased) and Vikash Singh & ors -vs- Devesh Pratap Singh reported in : AIR 2002 PATNA 24. In the said reported case, the Court held that section 276 of the Succession Act, 1925, does not confer jurisdiction on probate Court to decide any dispute relating to title, ownership etc. of the testator in which the property is the subject matter of the Will. The same view was also expressed by the learned Single Judge of the Gauhati High Court in the case of Durlabh Chandra Bhattacharjee -vs- Atul Bharthkaur reported in : 2005 (4) GLT 306. Another judgment of the Gauhati High Court in the case of Guneshwar Chutia -vs- Haren Chutia & ors reported in : AIR 1974 GAUHATI 73 (V 61 C 25), also expresses the same view. Another judgment of the Gauhati High Court in the case of Guneshwar Chutia -vs- Haren Chutia & ors reported in : AIR 1974 GAUHATI 73 (V 61 C 25), also expresses the same view. On the basis of these three decisions, it was contended by learned counsel appearing for the respondents that even if a dispute is raised with regard to title of the testator over the property covered under the Will, the Court has no jurisdiction to decide the question of title and all that the Court is required to see is as to whether the Will was executed in accordance with law or not. In this connection, reference may be made to a decision of the Apex Court in the case of Ghulam Qadir -vs-Special Tribunal & ors reported in : (2002) 1 Supreme Court Cases 33. The Apex Court in the said reported judgment was dealing with the property of a displaced person under the Jammu & Kashmir State Evacuees' (Administration of Property) Act, 2006 as well as Section 227 of the Succession Act, 1925. Paragraph 62 of the judgment being relevant for the purpose of this case is quoted below:- "62. Learned counsel appearing for the appellant referred to the judgments of this Court reported in Rukmani Devi v. Narendra Lal Gupta and the Chiranjilal Shrilal Goenka v. Jasjit Singh to urge that the probate granted in favour of the appellant by a competent court of jurisdiction is conclusive of the validity of the will unless it is revoked and no evidence can be admitted to impeach it except in the proceedings taken for revoking the probate. There cannot be any dispute to the legal proposition that the grant of probate establishes conclusively as to the appointment of the executor and the valid execution of the will. However, it does not establish more than the factum of the will as probate court does not decide question of the title or of the existence of the property mentioned therein. If despise admitting the execution of the will and issuance of the probate, a question arises as to its effect on the property of another person which is likely to be affected, nothing prevents the authorities under the Act to examine the will or the probate to that extent. If despise admitting the execution of the will and issuance of the probate, a question arises as to its effect on the property of another person which is likely to be affected, nothing prevents the authorities under the Act to examine the will or the probate to that extent. It is established in this case that on 4th or 9th January when the will was executed and registered respectively, the executants, namely, Sardar Begum had not become the owner of the disputed property. The disputed property at the time of execution of the will, admittedly, was vesting in the Custodian under the provisions of the Act. Her application filed under Section 8 of the Act had been dismissed on 19.03.1959 and her appeal was allowed by the Custodian-General on 29.7.1959 by remanding the case back to the Custodian for inquiry and order on points formulated in the remand order. Before the Custodian could pass any order, Sardar Begum executed the will on 4.1.1964 and died on 13.9.1965. It is worth mentioning here that before the death of Sardar Begum, her application which was remanded to the Custodian had been dismissed for default of appearance on 23.7.1965. In this view of the matter, the executant of the will had not right or authority to bequeath a property which did not belong to her. It may further be noticed that in her will she had nowhere stated that the executor, the appellant, would be entitled to any interest in the disputed property which was vesting in the Custodian at that particular time. The execution of the will, therefore, neither affected the evacuee property vesting in the Custodian nor it conferred any right upon the appellant to pray for its deletion or restoration. The properties bestowed by the will upon its beneficiary included a house situated in Kucha General Sammunder Khan, a single-storey pucca house situated at Mohalla Dalpatian, five pucca shops situated in Rajinder Bazar, and two double storey shops and one pucca shop situated in Kanak Mandi Jammu. The disputed property which vested in the Custodian, at the relevant time, comprised four shops with two flats thereon situated in Rajinder Bazar, Jammu. No specific mention is made of such a property. She has referred only to "five pucca shops situated in Rajinder Bazar, Jammu". The disputed property which vested in the Custodian, at the relevant time, comprised four shops with two flats thereon situated in Rajinder Bazar, Jammu. No specific mention is made of such a property. She has referred only to "five pucca shops situated in Rajinder Bazar, Jammu". Double-storey shops mentioned by her in the will are stated to be in Kanak Mandi, Jammu, admittedly, a different area, though adjacent to Rajinder Bazar. Accepting the plea of the appellant would amount to authorizing a person to execute a will with respect to any property in which the executants had no right or interest including the government property like Secretariat or official bungalows in favour another person who in turn would to the courts for the establishment of his title in the property, on the basis of conferment of title upon him by way of will. Such a course is neither permissible nor legal and in fact is against the public policy. After perusing the will, allegedly proved to have been executed by Sardar Begum and the probate issued by the Additional District Judge, Jammu, we are of the opinion that neither the will nor the probate conferred any right upon the appellant which he could enforce in a court of law or quasi-judicial authority, such as the Custodian." 15. Underlined portions of the said paragraph clearly establish that if despite admitting execution of the will and issuance of the probate, a question arises as to its effect on the property of another person which is likely to be affected, nothing prevents the authorities under the Act to examine the Will or the probate to that extent. The Court also observed that accepting submission of the learned counsel appearing for the appellant therein would amount to authorizing a person to execute a will with respect to any property in which the executants had no right or interest including the government property like Secretariat or official bungalows in favour of another person who in turn would rush to the courts for the establishment of his title in the property, on the basis of conferment of title upon him by way of will. Such a course is neither permissible nor legal and in fact is against public policy. Such a course is neither permissible nor legal and in fact is against public policy. Learned counsel appearing for the respondents tried to distinguish these observations of the Supreme Court on the ground that such observations were made considering the certain provisions of the Jammu & Kashmir State Evacuees' (Administration of Property) Act, 2006. On reading of the judgment, I do not agree with the above submission of the learned counsel appearing for the respondents as the property involved was of a displaced person under the said Act but the Court was considering Section 227 of the Succession Act, 1925 which relates only to grant probate. 16. In the present case, learned District Judge did not decide the said objection raised by the appellants solely on the ground that it has no jurisdiction to enter into the question of title. Prima facie when it appears to the Court that certain properties have been bequeathed under a Will of which the testator was not the owner, it is the duty of the Court also to examine such objection. I am therefore, of the view that the matter is required to be remitted back to the learned District Judge for reconsideration in accordance with law. While confirming the findings of the learned District Judge that the Will was executed by the testator in accordance with law, I remit the matter back to the learned District Judge for the purpose of examining the objection raised by the appellants with regard to the title of the testator over certain properties bequeathed under the Will in terms of the judgment of the Apex Court in the case of Ghulam Qadir -vs- Special Tribunal & ors (Supra). With this limited remand, the appeal is disposed of.