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2019 DIGILAW 644 (JHR)

Ramraj Yadav v. Anil Paswan

2019-03-06

SUJIT NARAYAN PRASAD

body2019
ORDER : 1. This writ petition under Article 227 of the Constitution of India, wherein, the order dated 03.10.2018, passed in Title Suit No. 04 of 2009 is under challenge, whereby and whereunder the petition dated 17.05.2018, filed by the objectors for their impleadment, as defendants in the suit in question, has been rejected. 2. It is the case of the petitioner that one Anil Paswan, filed an application under Section 273 of the Indian Succession Act, 1925 before the Court of District judge, Palamau at Daltonganj being Probate Case No. 04 of 2008 for grant of Probate of Will dated 16.02.2008, executed by one Ram Swarup Singh, with respect to land appertaining to Khata No. 18, 29, 1, 16 and 29, measuring area of 5.25 acres under different plots of Village : Araruwa Kalan, Thana No. 120, P.S. : Hariharganj, District, Palamau. 3. According to the petitioner, one Ram Swarup Singh, Son of Late Hitan Singh was owner and was in possession over the land, who was unmarried and had no nearest relation, except Surendra Singh of Village : Nawinagar, P.S : Nawinagar, District : Aurangabad. The said Ram Swarup Singh was brought up by the mother of the applicant while he was a very small child and has become orphan. On 06.02.2008, Ram Swarup Singh, having sound state of mind executed Will dated 16.02.2008 and bequeathed the property mentioned in the Schedule in favour of the applicant, in presence of Bhim Kumar, Ramsundar Ram, which was attested in presence of Surendra Singh, the relative of the testator. 4. The case of the petitioners is that they have purchased the property from one Ram Dulari Devi, who succeeded all the interest left by his husband, namely, Ram Swarup Singh and therefore, having interest over the property in question, hence the petitioners are the necessary party, having interest over the said property, therefore, the application has been filed for their impleadment, in the capacity of objectors to the said Will, the same having been rejected by the trial court, the instant writ petition has been filed. 5. 5. Having heard the learned counsel for the petitioner as also the Respondent-State of Jharkhand and after going across the pleadings made in the writ petition, as also the impugned order, wherefrom, it is evident that the case was filed as Probate Case, but one Dhukni Devi appeared and filed her objection on 13.02.2009 and further due to objection and contest petition filed by few other persons, seeking to be the legal heirs of late Ram Swarup Singh, the testator, the trial court vide order dated 24.11.2009 converted the Probate case to a Title Suit No.04 of 2009 and also ordered them to be impleaded as defendant and permitted them to file written statement. 6. It further transpires from the impugned order that the petition of objection cum impleadment filed on behalf of the petitioners, who claimed to have purchased some of the land from Ram Dulari Devi, widow of the testator by virtue of different sale deeds. Originally there was a Probate Case, which on contention has been converted into a Title Suit in view of the provision of Section 295 of the Indian Succession Act, 1925. There is no dispute about the position of law that even in contentious proceeding for Probate under Section 295 of the Indian Succession Act, 1925, the proceedings shall not be treated to be a regular suit and the issues to be tried in such a suit are, however, limited to the question, as to whether the testator was of sound, disposing mind and whether the Will was duly executed and attested. The duty of the Probate Court is to consider any issue as to the title of the testator to the property over the Will propounded purports to deal or as to what disposing power the testator may have possessed over such property or as to validity of bequests made. 7. In view of the aforesaid legal position, the petitioners’ application, if allowed and the petitioners would be allowed to be impleaded as party, the Probate Case will be converted into a regular suit and that will not be permissible under Section 295 of the Indian Succession Act, 1925. 8. 7. In view of the aforesaid legal position, the petitioners’ application, if allowed and the petitioners would be allowed to be impleaded as party, the Probate Case will be converted into a regular suit and that will not be permissible under Section 295 of the Indian Succession Act, 1925. 8. The learned trial court after taking into consideration the factual aspects as well as the legal position, as indicated, hereinabove, has rejected the aforesaid position, which, according to the learned counsel for the petitioner, suffers from no infirmity or illegality, therefore, this is not a case, where any interference is required by this Court, sitting under Article 227 of the Constitution of India. 9. This Court refrains itself in interfering with the impugned order. Accordingly, the writ petition fails and is, hereby dismissed.