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2016 DIGILAW 392 (GAU)

Arnab Dutta v. Srinibash Debnath

2016-05-09

L.S.JAMIR

body2016
JUDGMENT : L.S. Jamir, J. 1. Both F.A. No. 2 (K) of 2014 and W.P. (C) No. 117(K) of 2014, are directed against the Order dated 27.02.2014, passed in CMC No. 01/2014 arising of Probate Case No. 01 of 2013, by the District & Sessions Judge, Dimapur. Accordingly, both the petitions are being disposed of by this common judgment and order. 2. Heard Mr. C.T. Jamir learned senior counsel assisted by Mr. Imkong Jamir, learned counsel appearing for the appellants in F.A. 2 (K) of 2014 and for the petitioners in W.P. (C) No. 117 (K) of 2014. Also heard Mr. T.B. Jamir, learned counsel appearing for the sole respondent in F.A. No. 2 (K) of 2014 and for the respondent No. 1, in W.P. (C) No. 117 (K) of 2014 and Mr. P.B. Paul, learned counsel appearing for the respondent No. 2 in W.P. (C) No. 117 (K) of 2014. 3. The case of the appellants/petitioners in brief is that the one Dr. Srinibash Debnath, impleaded as the sole respondent in F.A. No. 2 (K) of 2014 and respondent No. 1, in W.P. (C) No. 117 (K) of 2014 (hereinafter referred to as the respondent) filed a Probate Application before the District & Sessions Judge, Dimapur, being Probate Petition No. 1/2013. praying for probate of the last Will and Testament of late Sudhir Kumar Dutta alias Kaloo Dutta, son of late Tarini Chandra Dutta (Testator, for short) who died on 25.06.2014. The respondent was appointed as the Executor by the Testator and is not a beneficiary of the bequeathed properties of the Testator. The learned District & Sessions Judge. Dimapur issued notices to the petitions and others, directing to appear before the Court and a notice was also published in the Nagaland Post, an English Local Daily, inviting claims and objections, if any, from the' heirs successors. The appellant/petitioners, accordingly, filed a Misc. Application No. 01/2014 under Order 7. Rule 11 (d) read with Section 151 of the Code of Civil Procedure, 1908 against the Probate Application. One Mrs. Banu Dhar, one of the successors of the Testator also filed written statement challenging the genuineness of the last Will and Testament of the Testator. The appellant/petitioners, accordingly, filed a Misc. Application No. 01/2014 under Order 7. Rule 11 (d) read with Section 151 of the Code of Civil Procedure, 1908 against the Probate Application. One Mrs. Banu Dhar, one of the successors of the Testator also filed written statement challenging the genuineness of the last Will and Testament of the Testator. The appellants/petitioners also, filed 3 (three) other Miscellaneous Applications being CMC No. 05/2014 praying for grant of status quo, CMC No. 06/2014 praying for appointment of Receiver and CMC No. No. 07/2014 praying for appointment of local commission in respect of the suit property. The sum and substance of the objection raised by the petitioners against the Probate petition, as well as in these present petitions is that the bequest made is contrary to the provisions of the Indian Succession Act, 1925 more particularly, Sections 112, 113, 114, 115, 116, 117, 118, 126 & 127 and as such, the bequest is void. Secondly, an issue was also raised as to whether the Probate Application disclosed material facts pertaining to the indigenous identities of the beneficiaries when the local legislation prohibits obtaining possession of immovable properties in the State of Nagaland by non-indigenous inhabitants. 4. Learned senior counsel for the petitioners submits that the learned Court below has distorted the actual submissions of the learned senior counsel for the petitioners, suppressed his actual submissions, the actual issues raised in the application and rejected the CMC Application by probating the Will despite one Banu Dhar, filing a written statement against the Probate Application. 5. According to the Id. Sr. Counsel appearing for the petitioner, the power and jurisdiction of the Probate Court cannot be confined to only examining question of facts, such as, whether the Testator was in a sound disposing state of mind at the time of execution of the Will, or whether it was shrouded with suspicious circumstances. 6. Therefore, the Order dated 27.02.2014, passed in Misc. Application No. 01/2014, arising of Probate Case No. 01/2013 by the learned District & Sessions Judge, Dimapur has been challenged on the ground that the trial Court below was absolutely based towards the respondent while dealing with the issues involved in the case. In support of his case, the learned senior counsel for the petitioners has placed reliance on the following decisions: Alagammai & Ors. v. Smti. V. Rakkammal, reported in AIR 1992 Mad. In support of his case, the learned senior counsel for the petitioners has placed reliance on the following decisions: Alagammai & Ors. v. Smti. V. Rakkammal, reported in AIR 1992 Mad. 136 ; Korshed Maneck v. The Official Trustee, reported in (1948) 50 BOMLR 108; Edalji Dhanji Ankesaria v. Sorabji Dinshawji Ginwalla reported in (1948) 50 BOMLR 137; Smti. Multivahuji w/o Goswami Goverdhaneshji Girdharlalji v. Smti. Kalindivahuji & Ors. reported in AIR 1994, Guj 42, Judgment & Order dated 11.12.12 passed by this High Court in Review Petition No. 79 of 2011 in the case of Dr. Rama Mukherjee (Bhowmick) v. State of Assam & Ors.; Ramjas Foundation & Anr. v. Union of India & Ors. reported in (2010) 14 SCC 38 . Mr. T.B. Jamir, learned counsel appearing for the respondent, on other hand submits that the probate petition has been filed strictly in conformity with the provision of Section 276 of the Indian Succession Act, 1925, hereinafter being referred to as the Act of 1925 and therefore, the question of suppression of material facts does not arise. According to the learned counsel for the respondent, the Act is a self contained code insofar as, the question of making an application for probate, grant or refusal of probate is concerned. The probate proceeding is to be conducted by the probate Court in the manner prescribed in the Act and in no other way. Therefore, the contention of the appellant/petitioner is absolutely without any legal basis. 7. Learned counsel for the respondent further submits 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 Probate Court does not decide any question of title or the existence of the property itself or for that matter rights between the parties. The question as to whether a particular bequest is good or bad is not within the purview of Probate Court. The petitioners never raised any objection as regard genuineness of the will and the state of mind of the testator. The question as to whether a particular bequest is good or bad is not within the purview of Probate Court. The petitioners never raised any objection as regard genuineness of the will and the state of mind of the testator. He also submits that the Probate Court has no jurisdiction to go into the question of validity of the provisions of the will nor does the Probate Court have the jurisdiction to decide the question whether the testator had or did not have the power to dispose of the property which he purports to dispose of by will. The jurisdiction of the Probate Court is, therefore, a limited jurisdiction. He therefore submits that in view of the settled principle-of law, there is no infirmity or illegality in the Order dated 27.02.2014, passed by the Probate Court. In support of his case, the Id. Counsel for the respondent has placed reliance in the case of Smti. Multivahuji w/o Goswami Goverdhaneshji Girdharlalji v. Smti. Kalindivahuji & Ors. reported in AIR 1994 Guj. 42 ; Smt. Parvati & Kaushalya v. Chhitarmal reported in AIR 1986 Rajasthan 24; Sushila Bola Saha v. Saraswati Mondal; Chiranjilal Shrilal Goenka (deceased) through LRS v. Jasjit Singh & Ors. reported in (1993) 2 SCC 507 ; Ka Riverretta Diengdoh v. Katrially Sararymbai & Anr. reported in 2012 (5) GLT 453; Subal Paul v. Malina Paul & Anr. reported in (2003) 10 SCC 361 and in the case of Sameer Suresh Gupta through PA Holder v. Rahul Kumar Agarwal reported in (2013) 9 SCC 374 . 8. Mr. P.B. Paul, learned counsel appearing for the respondent No. 2 in W.P. (C) No. 117 (K) of 2014 also endorses and adopts the submission advanced by the learned counsel for the respondent. 9. I have considered the submission forwarded by the learned counsels for the parties. This Court has also perused the records. 10. On the issue of suppression of material facts as contended by the learned senior counsel appearing for the petitioners it is necessary to refer to Section 276 of the Act and which is reproduced hereunder: "276. 9. I have considered the submission forwarded by the learned counsels for the parties. This Court has also perused the records. 10. On the issue of suppression of material facts as contended by the learned senior counsel appearing for the petitioners it is necessary to refer to Section 276 of the Act and which is reproduced hereunder: "276. Petition for probate – (1) Application for probate or for letters of administration, with the Will annexed, shall be made by a petition distinctly written in English or in the language in ordinary use in proceedings before the Court in which the application is made, with the Will or, in the cases mentioned in Sections 237, 238 and 239, a copy, draft, or statement of the contents thereof, annexed, and stating- (a) The time of the testator’s death, (b) That the writing annexed is his last Will and testament, (c) That it was duly executed, (d) The amount of assets which are likely to come to the petitioner's hand, (e) When the application is for probate, that the petitioner is the executor named in the will. (2) In addition to these particulars.” Upon perusal of the Probate application this Court is satisfied that the application has been filed strictly in conformity with Section 276 of the Act. It is not necessary' for the respondent to disclose in the Probate Application material facts pertaining to the indigenous identities of the beneficiaries when the local legislation prohibits obtaining possession of immovable properties in the State of Nagaland by non-indigenous inhabitants. Therefore, there is no substance in the contention of the learned senior counsel appearing for the appellants/petitioners that the respondent has suppressed material facts in the Probate application. 11. This Court has also gone through the authorities relied upon by the learned senior counsel appearing for the petitioners. 12. In the case of Alagammai (supra) relied upon by the learned counsel for the appellants/petitioners, the suit was for declaration of heirship and recovery of possession on the strength of title. As regard the decision rendered by the Probate Court and ordinary' civil Court it has been observed at Paragraph 7 therein as under: "7. 12. In the case of Alagammai (supra) relied upon by the learned counsel for the appellants/petitioners, the suit was for declaration of heirship and recovery of possession on the strength of title. As regard the decision rendered by the Probate Court and ordinary' civil Court it has been observed at Paragraph 7 therein as under: "7. As between the decision rendered by an ordinary civil Court and the decision rendered by a Probate Court, on the question of truth, validity, genuineness and due execution of a Will, the decision of the Probate Court is a judgment in rem, which will bind not only the parties before it, but the whole world is a well accepted proposition, which does not admit of any dispute. The decision of the ordinary civil Court, dealing with the same issue, would not constitute a judgment in rem. Such is the sanctity annexed to the decision of the probate Court, which is a Court of exclusive jurisdiction. The probate Court is a Court of conscience. It applies its mind to find out as to whether the document put forth in the last Will or codicil of the deceased. It must arrive at the satisfaction as to the due execution of the document. It must be satisfied as to the testamentary capacity of the deceased. It is an exclusive Court dealing with probate matters in contrast to the ordinary Civil Court, which is concerned only with deciding rights between parties. The probate Court does not decide rights between parties. Once the probate Court renders its decisions, that will take precedence on the relevant question, over the decisions of Courts of ordinary civil jurisdiction at all levels and will be binding on proceedings pending before such Courts. These principles are so well know, we do not think we should cite authorities for them." From a plain reading of the paragraph as quoted herein above, it only supports the case of the respondent and not that of the petitioners. 13. In Korshed Maneck (supra) the issue relates to construction of a clause in the will of one Jahangir Dinshaw Katlelee and facts are totality different and therefore, this court is of the considered opinion that it has no relevance to the present case. 14. In Edalji Dhanji Ankesaria (supra). 13. In Korshed Maneck (supra) the issue relates to construction of a clause in the will of one Jahangir Dinshaw Katlelee and facts are totality different and therefore, this court is of the considered opinion that it has no relevance to the present case. 14. In Edalji Dhanji Ankesaria (supra). From the question involved as appearing in Paragraph 5 and 6 of the judgment it is clear that the decision rendered in that case has no direct bearing with the present case. 15. In the case of Smti. Multivahuji (supra) Counsel, paragraph 16, of the judgment is quoted as under: “16. The functions of the probate Court are to (1) see that the will has been actually executed by the testator in a sound disposing state of mind without exersion or undue influence, and (2) that it has been duly attested. The probate Court is also required to decide as to whether the documents is of a testamentary character and whether the person applying for probate is entitled to be constituted the legal representative of the deceased. The primary function of the probate Court is therefore to ascertain and deal with the factum and due execution of the will. It has no jurisdiction to go into the question of validity of the provisions of the will nor has the probate Court the jurisdiction to decide the question whether the testator had or had not power to dispose of the property which he purports to dispose of by his will. It therefore becomes clear that jurisdiction of the probate Court is a limited jurisdiction. It cannot go in to the question of power of the testator to dispose of the properties nor can it construe the will or testament so as to determine the question of title to the property. It is not the province of the testimony judgment to determine whether the property covered by the will was the property of the deceased or not or was the joint property belonging to the deceased and some other person. It is thus clear that the Probate Court will not go into the question as to whether property disposed of by the will was a joint or ancestral property of the self acquired property of the testator or as to whether the testator had title over the property. It is thus clear that the Probate Court will not go into the question as to whether property disposed of by the will was a joint or ancestral property of the self acquired property of the testator or as to whether the testator had title over the property. The only question which the probate Court has to determine is as to whether the document for which probate is sought is one which is in fact disposing of the property. It is only for the purpose of determining as to whether the document is of dis-positive effect that the probate court would refer to the provisions of the will. In this connection reference can also be made to Section 273 of the said Act which provides for conclusiveness of probate or letters of administration. T he probate shall have the effect over all property and estate, movable and/or immovable of the deceased, throughout the state in which the same is granted and it shall be conclusive as to the representative title of the deceased.” The decision relied upon by the learned counsel for the petitioners instead support the case of the respondent. 16. In Dr. Rama Mukherjee (supra) there was objection filed against the grant of probate, inter-alia, on the ground that the Will is a manufactured one and not executed as required under the provisions of the Act. Therefore, the issue involved in that case and the present case in hand are totally different. 17. In Sardar Khuswant Sing (supra), the rejection of the probate petition was sought inter-alia, on the ground of (i) the same being in abuse of the process of Court (ii) an attempt to re-litigate (iii) being an attempt to prove the document after having failed to prove the same in the first round of litigation by way of civil suit (iv) having been held in the first round of litigation that the document was not a will, the petition for probate thereof being not maintainable etc. Therefore, the issue involved in that case and the present case are totally different and has no bearing with the present case. 18. Therefore, the issue involved in that case and the present case are totally different and has no bearing with the present case. 18. In Ramjas Foundation (supra), the principle of law laid down by the Apex Court is that a person who does not come with clean hands is not entitled to be heard on merits of his grievance and in any case such person is not entitled to any relief. As already observed by this Court, there is no suppression of material facts by the respondent and therefore, this decision has no relevance to the present case. 19. I have perused the decisions relied upon by the learned counsel for the respondent. In the case of Chiranjilal Shrilal Goenka (supra) the Apex Court in paragraph 15, has observed as under: “15. In Ishwardeo Narian Singh v. Smti Kamta Devi 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 Court. Therefore the only issue in a probate proceedings relates to the genuineness and the 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 con ducted by the probate Court in the manner pro scribed 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. 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” This Court in the case of Ka Riverretta Diengdoh (supra) has also relied upon Chiranjilal Shrilal Goenka (supra) and that the only issue in a probate proceeding is the genuineness and due execution of the Will. 20. There is no dispute that the petitioner never raised any objection as regard genuineness of the will and the state of mind of the testator. Therefore, going by the principle laid down by the apex Court, the Probate Court is only concerned with the question as to whether the document forwarded as the last will of the testator was duly executed in accordance with law and whether at the time of such execution, the testator had sound mind, the primary function of the Probate Court is therefore, to ascertain and deal with the factum and due execution of the will. It has no jurisdiction to go into the question of validity' of the provisions of the will, which the petitioners, in the instant case has prayed for. 21. In the light of the above discussion and observation, this Court is of the considered opinion that there is no merit in both the petitions. Accordingly, both F.A. No. 2 (K) of 2014 and W.P. (C) No. 117 (K) of 2014 are dismissed. 22. No costs. 23. Registry is directed to send down the LCR’s forthwith.