Jharkhand High Court
Nakul Bedia And Anr vs The Union Of India Through The Secretary ... on 3 May, 2016
Equivalent citations: AIR 2016 JHARKHAND 133, 2016 (3) AJR 727 (2016) 4 JCR 524 (JHA), (2016) 4 JCR 524 (JHA)
Bench: D. N. Patel, Ananda Sen
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IN THE HIGH COURT OF JHARKHAND AT RANCHI
L.P.A. No. 352 of 2013
1. Nakul Bedia Son of Kishun Bedia.
2. Subhash Bedia Son of Kishun Bedia.
Both resident of village-Kothar, P.O.-Kaitha, P.S. Ramgarh,
District-Ramgarh (Jharkhand). ..... Appellants/Respondents
Versus
1.The Union of India, through the Secretary, Ministry of Surface
Transport, Government of India, New Delhi, P.O. & P.S. Dawrika
New Delhi, District-New Delhi.
2.The Deputy Commissioner, Ramgarh, P.O., P.S. & District-
Ramgarh.
3.The District Land Acquisition Officer-cum-Competent
Authority under the National Highway Act, P.O., P.S. & District-
Ramgarh.
4.National Highways Authority of India through the Project
Director, N.H.A.I, Project Implementation Unit, having its office
at Project Building,H.E.C., P.O. Dhurwa, P.S.Hatia, District-
Ranchi.
5.Teju Bedia, Son of Manbodh Bedia.
6.Dikri Devi, wife of Bablu Bedia.
7.Khadra Bedia, son of Bideshiya Bedia.
8.Lallu Bedia, son of Bideshiya Bedia.
9.Arjun Bedia, son of Sri Khadra Bedia.
Sl. No. 5 to 9, All resident of village-Sidhwar, P.O. Barka Kana,
P.S. Patratu, (O.P. Ghutuwa), District-Ramgarh (Jharkhand).
..... Respondents/Petitioners
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CORAM: HON'BLE MR. JUSTICE D. N. PATEL
HON'BLE MR. JUSTICE ANANDA SEN
For the Appellants : Mr. V. Shivnath, Sr. Advocate
Mr. Nehru Mahto, Advocate
For the Respondent 1 : J.C. to ASGI
For the Respondents 2 & 3 : Mr. Manoj Kumar, S.C. Mines For the Respondent No.4 : Mrs. Sweety Topno, Advocate For the Respondents 5 to 9 : Mr. Ayush Aditya, Advocate Mr. Shashans Shekher, Advocate
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25/Dated: 3 May, 2016 rd Per D.N. Patel, J.:
1. This Letters Patent Appeal has been preferred by the appellants (original respondent nos. 5 & 6) against the judgment and order delivered by the learned Single Judge in W.P.(S) No. 1230 of 2012 dated 12th September, 2013, whereby, the writ petition preferred by respondent nos. 5 to 9 (original petitioners) has been allowed and, the dispute about the title over property, 2 in question, was directed to be referred by respondent no.3 to the competent Civil Court for adjudication with regard to apportionment of the compensation amount between the parties. This reference is to be made under Section 3(H)(4) of the National Highways Act, 1956.
2. It has also been held by the learned Single Judge that execution of a Will and probate thereafter, is not a conclusive proof of the title upon the property and the Court who has granted probate, has no power, jurisdiction and authority to decide the title upon the property, in question, on the basis of decisions, rendered by the Hon'ble Supreme Court.
(a)(2008)4 SCC 300,
(b)(2007) 11 SCC 357
(c)(1993) 2 SCC 507
(d)(2009) 2 SCC 315
(e)(2007) 2 SCC 481 Being aggrieved and feeling dissatisfied by the aforesaid decision of the learned Single Judge, the original respondent nos. 5 and 6 of the writ petition being W.P.(C) No. 1230 of 2012, have preferred this present Letters Patent Appeal.
3. Factual Matrix.
• The land, in question, is Khata No. 49 of Village Kothar, P.O. Kaitha, District-Ramgarh, admeasuring 30.65 acres of land.
• This entire land was the subject matter of execution in L. A. Case No. 01/2010-11. The land acquired was under the National Highways Act, 1956.
• The land in question was originally owned by three persons, who are:-
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(a)Mani Ohdar,
(b)Bhondu Bedia and
(c) Bideshiya Bedia.
This is as per revenue entries maintained by the State of Jharkhand. This document is at Annexure-A to the memo of this Letters Patent Appeal and was also before the learned Single Judge in the writ petition. Thus, the land, in question, was originally owned by the aforesaid three persons. • One of the successor-in-title of Mani Ohdar is Most. Lalo Devi, who has given entire property of Khata No. 49 admeasuring more than 30 acres of land in favour of,
(a) Kishun Bedia,
(b) Mankuria and
(c) Maksu Bedia.
All the aforesaid three persons are successor-in-title of Mani Ohdar.
• Thus, it appears that the whole difficulties have been created by the Will of Lalo Devi as there were other two owners also over and above Mani Ohdar, who are:-
(a) Bhondu Bedia and
(b) Bedeshiya Bedia.
The original petitioners in the writ petition being W.P.(C) No. 1230 of 2012 are the successor-in-title of Bideshiya Bedia. • Thus, Co-owner Lalo Devi, who is successor-in-title of Mani Ohdar, ignoring other two owners viz.(a) Bhondu Bedia and (b) Bideshiya Bedia, has executed the will for whole of the property.
• On the basis of the so called Will, probate case was also filed by the beneficiaries of Will of Lalo Devi being Probate Case No. 53 of 1964 in the Court of District Judge at Hazaribagh 4 under Section 217 of the Indian Successor Act, 1945 for getting probate, on the basis of the Will executed by Lalo Devi. • This probate case was contested by the petitioners of W.P.(C) No. 1230 of 2012 by way of objection under Section 295 of the Indian Succession Act, 1925 and hence, the probate case was converted into title suit and was numbered as Title Suit No. 9 of 1965. Rule 458 of the Civil Court Rules of the High Court of Judicature at Patna also permits conversion of probate case into title suit, whenever the probate case is being contested. • The probate case, thus was converted into Title Suit No. 9 of 1965 and was decided vide order dated 24th June, 1969 by learned 2nd Additional District Judge, Hazaribagh. It appears that the learned 2nd Additional Sessions Judge has not only decided the probate of the Will, but, has also decided the title upon the property.
• Thereafter, for acquiring the land under the National Highways Act, 1956, respondent no. 3 issued a notice (which is at Annexure-4 to the memo of this Letters Patent Appeal) to Bideshiya Bedia also, because as per revenue entries maintained by the State of Jharkhand, he was one of the owners of the property, in question. In fact, the notice was issued under the National Highways Act, 1956 upon all the three owners of the property, in question, viz.,
(a)Mani Ohdar,
(b)Bhondu Bedia and
(c)Bideshiya Bedia.
• Thus, it appears from the said notice that even as per the 5 National Highways Authority, the aforesaid three persons were the owners of the property, in question, as per the revenue entries. These revenue entries are at Annexure-A to Annexure- 11 of this Letters Patent Appeal.
• In the compensation proceedings the successor-in-title of Bideshiya Bedia raised an objection that they are also the owners of the property in question, but, the said authority, on the basis of the decision rendered in the probate case (Title Suit No. 9 of 1965), awarded the whole compensation in favour of the beneficiaries of the Will, executed by Lalo Devi. This order was passed by the authority under the National Highways Act, 1956 on 20th October, 2011, which is at Annexure-8 to the memo of this letters Patent Appeal.
• Being aggrieved and feeling dissatisfied by this order, a writ petition being W.P.(C) No. 1230 of 2012 was preferred by the respondent nos. 5 to 9 of this Letters Patent Appeal, mainly on the ground that a Court who is deciding the probate case, has no power, jurisdiction and authority to decide title of a property and on the basis of the several decisions as stated herein above, the learned Single Judge has held that the Court who has decided the probate case had no power, jurisdiction and authority to decide a title of the property or to decide a fact that the executor of the Will was the owner of the property, especially, when the other joint owners of the property are raising a dispute. The learned Single Judge has also observed that the authority under the National Highways Act, 1956 will 6 refer the matter to the competent Civil Court under Section 3(H) (4) of the National Highways Act, 1956.
• Thus, the matter has now been referred to the competent Civil Court, in which now some evidence has also been taken by the Court below.
• Being aggrieved and feeling dissatisfied by the aforesaid decision of the learned Single Judge in W.P.(C) No. 1230 of 2012 dated 12th September, 2013 the original respondent nos. 5 and 6 of the writ petition have preferred this Letters Patent Appeal.
4. Arguments canvassed by the counsel for the Appellants.
• It is contended by the learned counsel for the appellants that the original-petitioners, who are respondent nos. 5 to 9, have no right, title and interest upon the property pertaining to Khata No. 49, Village Kothar, District-Ramgarh admeasuring approximately 30.65 acres.
• It is contended by the counsel for the appellants that out of this 30.65 Acres, only 3.85 acres land has been acquired under the National Highways Act, 1965 and as the Will was executed by the Lalo Devi, who is successor-in-title of the Mani Ohdar, the whole property was bequeathed by her to:-
(a) Kishun Bedia,
(b) Mankuria and
(c) Maksu Bedia and, on the basis of the Will, which is at Annexure-1 to the memo of this Letters Patent Appeal, Probate Case No. 53 of 1964 was instituted in the Court of District Judge, Hazaribagh 7 for getting probate and the said probate case being contested by original petitioners and hence, it was converted into Title Suit No. 9 of 1965, which was decided vide order dated 24th June, 1969 by learned 2nd Additional District Judge, Hazaribagh. The said judgment is at Annexure-C of Annexure-11 of this Letters Patent Appeal.
• It is contended by the counsel for the appellants that this judgment was suppressed by the original-petitioners and hence, the writ petition was not tenable at law or at least no relief could have been granted by the learned Single Judge in favour of the original-petitioners.
• It is also contended by the counsel for the appellants that in view of the decision rendered by learned 2nd Additional District Judge, Hazaribagh in Probate Case No. 53 of 1964 (Title Suit No. 9 of 1965), no error was committed by the authorities under the National Highways Act, 1956, in giving amount of compensation to these appellants by order dated 20th October, 2011 (Annexure-8 to the memo of this Letters Patent Appeal). This aspect of the matter has not been properly appreciated by the learned Single Judge, while allowing the writ petition being W.P.(C) No. 1230 of 2012 vide order dated 12th September, 2013 and hence, the same deserves to be quashed and set aside.
• It is also contended by the counsel for the appellants that as per Section 41 of the Indian Evidence Act, 1872, the decision rendered in a probate case, is conclusive evidence. 8 • Learned counsel appearing for the appellants has relied upon the decisions, rendered by Hon'ble the Supreme Court in the case of Amar Singh Vs. Union of India and others, as reported in (2011) 7 SCC 69, and in the case of Mohammed Hanif Vs. The State of Assam, as reported in (1969) 2 SCC
782. On the basis of the aforesaid decisions it is submitted by the counsel for the appellants that the original-petitioners cannot now claim any right title and interest upon the property, in question, pertaining to Khata No. 49, Village Kothar, District- Ramgarh, much less upon the compensation for part of the land, which is acquired by the National Highways Authorities. These aspects of the matter has not been properly appreciated by the learned Single Judge.
• It is also contended by the counsel for the appellants that after issuance of the notice under the National Highways Act, 1956 the objections were invited from the original-petitioners, who filed their objections which were never rejected or brushed aside by the competent authority under the National Highways Act, 1956 and hence, also there was no need by the learned Single Judge to refer the matter to the Civil Court. Even otherwise also, the judgment and order delivered by the learned 2nd Additional District Judge, Hazaribagh in Probate Case No. 53 of 1964 (Title Suit No. 9 of 1965) has never been challenged by the original-petitioners. These aspects of the matter have not been properly appreciated by the learned Single Judge, while 9 allowing the writ petition and hence, the judgment and order passed by the learned Single Judge in writ petition being W.P. (C) No. 1230 of 2012, deserves to be quashed and set aside. • It is also contended by the counsel for the appellants, that there is no question of reference to the Civil Court under Section 3(H)(4) of the National Highways Act, 1956, because the original-petitioners have never claimed apportionment in the compensation rather they have claimed whole compensation.
5. Arguments canvassed by the learned counsel for respondent nos. 5 to 9 (original petitioners of the W.P.(C) No. 1230 of 2015).
• Learned counsel appearing for the respondent nos. 5 to 9 (original-petitioners ) submitted that the land in question pertaining to Khata No. 49, Village-Kothar, District-Ramgarh, as per revenue entries, was owned by:-
(a) Mani Ohdar,
(b) Bhondu Bedia and
(c) Bideshiya Bedia.
• All the aforesaid three original owners of the property have been referred at Annexure-A to the Annexure-11 of this Letters Patent Appeal. Thus, it is submitted by the counsel for the respondents that it is an admitted position of fact that all the aforesaid three persons were the original owners of the property in question.
• Even the notice which was issued by respondent no. 3 under National Highways Authorities Act, 1956 was also in the names of the aforesaid owners, as per the revenue entries maintained by State Govt., as stated herein above. 10 • Lalo Devi wife of Paran Ohdar, who is son of Mani Ohdar, has executed a Will dated on 07.03.1955 for whole of the property (Annexure-1 to the memo of this Letters Patent Appeal). This Will has created severals problems and multifariousness of the proceedings, because Mani Ohdar, whose son is Paran Ohdar, whose wife is Lalo Devi, prima facie, even as per revenue entries, was never owner of the entire land of Khata No. 49 Village Kothar, District-Ramgarh. • It is contended by the counsel for respondent nos. 5 to 9 (in the writ petition) that probate case decided by the learned 2nd Additional District Judge, Hazaribagh is not a conclusive proof of title over the property in question nor the aforesaid Court has power, jurisdiction and authority to decide title upon the property, in question, by the executor of the Will. If a Court, which is deciding the probate case, is also deciding title upon the property, in question, then the said judgment will be nullity and non est. In fact, title suit should have been filed in the lowest available Court as per Section 25 of the C.P.C. • Learned counsel appearing for respondent nos. 5 to 9 (the original-petitioners) have relied upon the following decisions rendered by Hon'ble the Supreme Court as reported in;
(a) (2008) 4 SCC 300 Para-57
(b) (2007) 11 SCC 357 paras 11 and 12
(c) (1993) 2 SCC 507 paras 15 and 18
(d) (2009) 2 SCC 315 para 26 and
(e) (2007) 2 SCC 481 para 22.
On the basis of the aforesaid decisions, it is submitted by 11 the counsel for respondent nos. 5 to 9 (original-petitioners) that Probate Court as a very limited scope viz. only to decide the question relating to the genuineness of a Will, but, it has no power, jurisdiction and authority to decide the right, title and interest of an executor of Will upon the property in question. • It has also been submitted by the counsel for the respondent nos. 5 to 9 (original-petitioners) that whenever there is a dispute as to the apportionment of the amount of compensation and whenever, title of a property is also in dispute, then the matter should be referred under Section 3(H) (4) of the Act, 1956 before the competent Civil Court. These aspects of the matter have been properly appreciated by the learned Single Judge, while quashing and setting aside the order passed by the Land Acquisition Officer under the National Highways Act, 1956 dated 20th October, 2011 (Annexure-8 of the memo of this Letters Patent Appeal), whereby the claim of these respondent nos. 5 to 9 (original-petitioners) were brush aside and whole compensation was awarded to these appellants (respondent nos. 5 and 6 in W.P.(C) No. 1230 of 2012) and thus, no error has been committed by the learned Single Judge in directing the competent authority under the National Highways Act, 1956 to refer the dispute between the original-petitioners and the original-respondents to a competent Civil Court for adjudication with regard to the apportionment of compensation amount between the parties and after reference now the case is pending in the competent Court of the Civil Judge (Sr. Division- 12 II), Ramgarh. (This district has been separated from the District Hazaribagh recently). Hence this Letters Patent Appeal may not be entertained by this Court.
• It is further submitted by the counsel for the respondents (original-petitioners) that, whenever the probate case is filed under Section 217 of the Indian Succession Act, 1925, on the basis of the Will of the executor of the Will and whenever the said probate case is contested under Section 295 of the Act, 1925, it will be renamed as a title suit as per rule 458 of the Civil Court Rules of the High Court of Judicature at Patna, but, the fact remains that the Court, which is deciding the probate case with a new name of title suit, has no power, jurisdiction and authority to decide the title upon the property, in question, nor has the power to decide the ownership of the property which is referred by the executor of the Will. Thus, learned 2nd Additional District Judge, Hazaribagh who has decided the probate case (title suit) vide order dated 24th June, 1969, in fact, is an order, which is nullity, and thus, no res judicata is created by a such decision, as has been held by the aforesaid decisions sighted by the counsel for the respondents and hence, this Letters Patent Appeal may not be entertained by this Court and let a specific direction be given to the competent Civil Court to whom the matter is referred under Section 3(H)(4) of the National Highways Act, 1956, to decide right, title and interest of the parties to such a litigation, within the suitable time. 13
6. Reasons:
Having heard learned counsel for both the sides and looking to the facts and circumstances of the case, we see no reason to entertain this Letters Patent Appeal, mainly for the following facts and reasons:-
(i) The property in question is narrated at Khata No. 49, Village Kothar, District Ramgarh, admeasuring approximately 30.65 acres of land, out of which as per appellants, 3.85 acres of land is acquired, whereas, as per respondent nos. 5 to 9 (original-petitioners) whole of the land is acquired, whereas, as per the National Highway Authority, who is the respondent no.4 only 1.25 acres of land is acquired. Now, the counsel for the respondents as well as the National Highway Authorities have stated that only 3.85 acres of land was acquired out of the land pertaining to Khata No. 49.
(ii) In fact Firangi Bedia is the original-owner of the property in question whose name has not been mentioned in the revenue entries because he died prior to preparation of Khatiyan. As per revenue records which is known as Khatiyan which is at Annexures-A to Annexure-11 of this Letters Patent Appeal) it reveals that the following three sons were the original owner of the property in question:
(a) Mani Ohdar,
(b) Bhondu Bedia and
(c) Bideshiya Bedia.
(iii) One Lalo Devi who is a wife of Paran Ohdar (one of the sons of Mani Ohdar), has executed a Will dated 7th March, 1955 (Annexure-1 to the memo of this Letters Patent Appeal) in 14 respect of the entire property of Khata No. 49. This is a bone of contention, because she is a successor-in-title of Paran Ohdar, who is son of Mani Ohdar. In fact, Mani Ohdar is one of the joint owners of the property, in question, over and above Bhondu Bedia and Bideshiya Bedia. This Will is executed by Lalo Devi as if she is the only owner of the whole property of Khata No. 49.
By way of the aforesaid will Lalo Devi has given the property to:
(a) Kishun Bedia,
(b) Mankuria and
(c) Maksu Bedia
(iv) All the aforesaid three beneficiaries of the Will of Lalo Devi filed a Probate Case No. 53 of 1964 in the court of District Judge, Hazaribagh under Section 217 of the Indian Succession Act, 1925. Thus, suit was contested by respondent nos. 5 to 9 (original-petitioners) under Section 295 of the Indian Succession Act, 1925 and therefore, as per rule 458 of the Civil Court Rules of the High Court of Judicature at Patna, the probate case was now renamed as Title Suit No. 9 of 1965, which was decided by the learned 2nd Additional District Judge, Hazaribagh, vide order dated 24th June, 1969 (Annexure C to the Annexure 11 of this Letters Patent Appeal) and as per the decision, given by learned 2nd Additional District Judge in the probate case (Title Suit), the said Court has accepted the contentions of the applicants in the probate case that entire property was belonging to Lalo Devi and the entire property of Khata No. 49 was in possession of Lalo Devi. These two findings were traveling beyond the power, jurisdiction and authority of the learned 2nd Additional District, Judge, Hazaribagh and thus, this judgments 15 is nothing, but, non est and nullity in the eyes of law, which does not create any res judicata in between the parties so far as right, title and interest upon the property belonging to Khata No. 49, village Kothar, District-Ramgarh is concerned.
(v) It has been held by Hon'ble the Supreme Court in the case of Krishna Kumar Birla, Vs. Rajendra Singh Lodha and others, as reported in (2008) 4 SCC 300, especially paragraphs no. 57 thereof, as under;
"57. The 1925 Act in this case has nothing to do with the law of inheritance or succession which is otherwise governed by statutory laws or the custom, as the case may be. It makes detailed provisions as to how and in what manner an application for grant of probate is to be filed, considered and granted or refused. Rights and obligations of the parties as also the executors and administrators appointed by the court are laid down therein. Removal of the existing executors and administrators and appointment of subsequent executors are within the exclusive domain of the court. The jurisdiction of the Probate Court is limited being confined only to consider the genuineness of the will. A question of title arising under the Act cannot be gone into the (sic probate) proceedings. Construction of a will relating to the right, title and interest of any other person is beyond the domain of the Probate Court."
(emphasis supplied) In view of the aforesaid decision, the jurisdiction of the Probate Court is quite limited. It is confined only to consider the genuineness of the Will. The Probate Court i.e. the learned 2nd Additional District Judge, Hazaribagh, while deciding Probate Case No. 53 of 1964 (Title Suit No. 9 of 1965) could not have gone into a question of a title. The consideration of a Will relating to the right, title and interest of any other person is beyond the domain of a Probate Court.
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(vi) It has been held by Hon'ble the Supreme Court in the case of Kanwarjit Singh Dhillon Vs. Hardyal Singh Dhillon and others, as reported in (2007) 11 SCC 357, especially paragraphs no. 11 and 12 thereof, as under:
"11. As noted hereinearlier, the suit for declaration of title and injunction has been filed by the appellant inter alia on the allegations that the suit properties are joint family properties of HUF of which the appellant and his two brothers Hardyal Singh Dhillon and Harbans Singh Dhillon, mother Surjit Kaur and unmarried daughter Amarjit Kaur are members. It has also been claimed by the appellant in the suit that by utilising the income from the ancestral agricultural land, various properties including the suit properties were acquired. Such being the allegations made in the plaint which can only be decided on trial after parties are permitted to adduce evidence in respect of their respective claims, it is difficult to hold that only because probate of the will of late S. Kirpal Singh has been granted, the suit for title and injunction must be held to be not maintainable in law. It is well-settled law that the functions of a Probate Court are to see that the will executed by the testator was actually executed by him in a sound disposing state of mind without coercion or undue influence and the same was duly attested. It was, therefore, not competent for the Probate Court to determine whether late S. Kirpal Singh had or had not the authority to dispose of the suit properties which he purported to have bequeathed by his will. The Probate Court is also not competent to determine the question of title to the suit properties nor will it go into the question whether the suit properties bequeathed by the will were joint ancestral properties or acquired properties of the testator."
12. In Chiranjilal Shrilal Goenka v. Jasjit Singh this Court while upholding the above views and following the earlier decisions of this Court as well as of other High Courts in India observed in para 15 at SCC p. 515 which runs as under:
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"15. In Ishwardeo Narain Singh v. 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 17 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 due 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 conducted by the Probate Court in the manner prescribed 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. Probate Court does not decide any question of title or of the existence of the property itself."
(emphasis supplied) That being the position and in view of the nature of allegations made in the plaint, we do not find any reason as to how the High Court as well as the civil court could come to a conclusion that after the probate of the will executed by late S. Kirpal Singh was granted, the suit for declaration for title and injunction on the above allegation could not be said to be maintainable in law. The High Court also while holding that the suit was not maintainable, in view of the probate granted of the will of late S. Kirpal Singh had relied on a decision of this Court, as noted hereinearlier, in Rukmani Devi. We are not in a position to agree with the High Court that this decision could at all be applicable in the facts and circumstances of the present case. A plain reading of this decision would not show that after the grant of probate by a competent court, the suit for title and permanent injunction cannot be said to be maintainable in law. What this Court held in that decision is that once a probate is granted by a competent court, it would become conclusive of the validity of the will itself, but, that cannot be decisive whether the Probate Court would also decide the title of the testator in the suit properties which, in our view, can only be decided by the civil court on evidence. It is true that the probate of the will granted by the competent Probate Court would be admitted into evidence that 18 may be taken into consideration by the civil court while deciding the suit for title but grant of probate cannot be decisive for declaration of title and injunction whether at all the testator had any title to the suit properties or not."
(emphasis supplied) In view of the aforesaid decision, as has been held by the Hon'ble Supreme Court, function of the probate Court is as under:-
(a) to see that Will executed by the testator, (in the present case Lalo Devi) was actually executed by him/her ( in this case Lalo Devi) in a sound State of mind, without coercion or any undue influence,
(b) Whether the Will was duly attested,
(c) the genuineness of the Will and
(d) due execution of the Will.
This is the scope of the decision of a Probate Court and nothing beyond that;
(vii) The Probate Court:
(a) is not competent to determine the question of title to the suit properties,
(b) the Probate Court has no power, jurisdiction and authority to go into the question whether suit properties which are bequeathed by the Will, are ancestral properties or self-acquired properties of the testator ( in the facts of the present case Lalo Devi).
(c) The Probate Court can not decide any question of a title or existence of the property itself.
(viii) Thus, in view of the aforesaid decisions, the Probate 19 Court while deciding a probate case should only establish the factum of the Will and the legal chractor of the executor, and the Probate Court has nothing to do with the title of the property or it has nothing to do how the testator acquired the property nor it has any power/ authority/jurisdiction to decide, whether the suit properties, as ancestral properties has mentioned in the Will or not. All theses questions could not have been decided by the Probate Court.
(ix) Much has been argued about the conclusive decision of the probate case under Section 41 of the Indian Evidence Act, 1872, but, it ought to be kept in mind that if a Court, which has no power, jurisdiction and authority to decide the right, title and interest of a person over the property, is deciding the same, it never creates any conclusiveness as per paragraph no. 12 of the aforesaid decision, in the case of Kanwarjit Singh Dhillon Vs. Hardyal Singh Dhillon and others, as reported in (2007)11 SCC, 357. The conclusiveness of the validity of a Will itself can be maximum deduced from the judgment of a probate case, but, from the decision of the probate case, even if the Probate Court has decided the title, it cannot be a conclusive proof of title of the testator of property which is bequeathed by him/her. Thus, whether the testator was really the owner of the property which he/she is giving by his/her will to the other beneficiaries in the present case (by Lalo Devi to Kishun Bedia, Mankuria and Maksu Bedia) can only be decided by the Civil Court, on the basis of the evidences 20 on record, including of revenue entries etc. Thus, the grant of probate for Khata No. 49 of village Kothar, District-Ramgarh cannot be a decessive for declaration of title, much less by the testator. These aspects of the matter have been properly appreciated by the learned Single Judge, while allowing the writ petition preferred by respondent nos. 5 to 9.
(x) It has been held by the Hon'ble Supreme Court in the case of Chiranjilal Shrilal Goenka Vs. Jasjit Singh and others, as reported in (1993) 2 SCC, 507 especially in paragraphs no. 15 and 18 thereof, which reads as under;
"15. In Ishwardeo Narain Singh v. Smt 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 due 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 conducted by the probate court in the manner prescribed 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. Probate court does not decide any question of title or of the existence of the property itself."
xxx xxx xxx "18. It is settled law 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 21 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. The defect of jurisdiction strikes at the very authority of the court to pass decree which cannot be cured by consent or waiver of the party. In Bahadur Singh v. Muni Subrat Dass an eviction petition was filed under the Rent Control Act on the ground of nuisance. The dispute was referred to arbitration. An award was made directing the tenant to run the workshop up to a specified time and thereafter to remove the machinery and to deliver vacant possession to the landlord. The award was signed by the arbitrators, the tenant and the landlord. It was filed in the court. A judgment and decree were passed in terms of the award. On expiry of the time and when the tenant did not remove the machinery nor delivered vacant possession, execution was levied under Delhi and Ajmer Rent Control Act. It was held that a decree passed in contravention of Delhi and Ajmer Rent Control Act was void and the landlord could not execute the decree. The same view was reiterated in Kaushalya Devi (Smt) v. K.L. Bansal. In Ferozi Lal Jain v. Man Mal a compromise dehors grounds for eviction was arrived at between the parties under Section 13 of the Delhi and Ajmer Rent Control Act. A decree in terms thereof was passed. The possession was not delivered and execution was laid. It was held that the decree was nullity and, therefore, the tenant could not be evicted. In Sushil Kumar Mehta v. Gobind Ram Bohra (dead) through his Lrs.the civil court decreed eviction but the building was governed by Haryana Urban (Control of Rent and Eviction) Act (11 of 1973). It was held that the decree was without jurisdiction and its nullity can be raised in execution. In Union of India v. Ajit Mehta and Associates, Pune a Division Bench to which Sawant, J. as he then was, a member was to consider whether the validity of the award could be questioned on jurisdictional issue under Section 30 of the Arbitration Act. The Division Bench held that Clause 70 of the contract provided that the Chief Engineer shall appoint an engineer officer to be sole arbitrator and unless both parties agree in writing such a reference shall not take place until after completion of the works or termination or determination of the contract. Pursuant to this contract under Section 8 of the Act, an arbitrator was appointed and award was made. Its validity was questioned under Section 30 thereof. The Division Bench considering the scope of Sections 8 and 22 20(4) of the Act and on review of the case-law held that Section 8 cannot be invoked for appointment of an arbitrator unilaterally but Section 20(4) of the Act can be availed of in such circumstances. Therefore, the very appointment of the arbitrator without consent of both parties was held void being without jurisdiction. The arbitrator so appointed inherently lacked jurisdiction and hence the award made by such arbitrator is non est. In Ghellabhai case Sir C. Farran, Kt., C.J. of Bombay High Court held that the probate court alone is to determine whether probate of an alleged will shall issue to the executor named in it and that the executor has no power to refer the question of execution of will to arbitration. It was also held that the executor having propounded a will and applied for probate, a caveat was filed denying the execution of the alleged will, and the matter was duly registered as a suit, the executor and the caveatrix subsequently cannot refer the dispute to arbitration, signing a submission paper, but such an award made pursuant thereto was held to be without jurisdiction."
(emphasis supplied)
(xi) In view of the aforesaid decisions the probate proceedings ought to have been conducted by the Probate Court in the manner prescribed under the Indian Succession Act, 1925. The grant of the probate with a copy of the Will, will establishes conclusively:-
(a) the appointment of the executor; and
(b) valid execution of the Will, and nothing beyond this, much less:-
(a) the title of the executor of a property, which is referred to in the Will and which is given to the beneficiaries of the Will,
(b) the right, title and interest of all those who are contesting the probate case.
Thus, Probate Court cannot decide any question of title or of the existence of the property itself. Thus, the Probate Court has nothing to do with the ownership of the testator (Lalo 23 Devi in the present case), as the Probate Court is not supposed to decide the right, title and interest of the testator nor of the persons who are contesting the probate case (respondent nos. 5 to 9 of the original-petitioners). These issues of the right, title and interest upon the property which is referred in to the Will and which is contested by the persons under Section 295 of the Indian Succession Act, 1925, could not have been decided by the Probate Court i.e. learned 2nd Additional District Judge, Hazaribagh, while deciding the Probate Case No. 53 of 1964 which was controverted into Title Suit No. 9 of 1965 vide order dated 24th June, 1969. In fact, such a decision is nothing, but a nullity and non est in the eyes of law. Thus, to such a decision, the principles of res judicata would not apply at all. Such a decision which is passed by the Court without jurisdiction would be a nullity and it would be a coram non judice.
(xii) It has been held by the Hon'ble Supreme Court, in the case of Chandrabhai K. Bhoir and others Vs. Krishna Arjun Bhoir and others, as reported in (2009) 2 SCC, 315, especially in paragraph no. 26 thereof, as under:
"26. Thus, the said issue, in our opinion, did not attain finality. In any view of the matter, an order passed without jurisdiction would be a nullity. It will be a coram non judice. It is non est in the eye of the law. Principles of res judicata would not apply to such cases. (See Chief Justice of A.P. v. L.V.A.Dixitulu, Union of India v. Pramod Guptaand National Institute of Technology v. Niraj Kumar Singh.)"
(emphasis supplied) Thus, in view of the aforesaid decision the probate case which is decided by the learned 2nd Additional District Judge, 24 Hazaribagh is not governed by the principal of res judicata between the parties because it is non est in the eyes of law and as it is an order of without jurisdiction, it is nullity.
(xiii) Much has been argued that a decision in the probate case is of the year, 1969 which is never challenged by the original-petitioners and hence, it is binding upon the original-petitioners.
We are not in agreement with the argument canvassed by the counsel for appellants, mainly for the reason that as stated in paragraph no. 18 of the aforesaid decisions i.e. in (1993) 2 SCC 507 the decree passed by a Court without jurisdiction or by a Court which lacks inherent jurisdiction, is a coram non judice. Such a decree passed by a Court who has no jurisdiction is a nullity and non est and its invalidity can be setup, whenever it is sought to be enforced or is acted upon. Meaning thereby, whenever decision in a probate case, which also decides the right, title and interest upon a property, which is referred to now Will of the testator, is relied upon by the beneficiaries of the Will, may be after several years, its invalidity can be setup, even at the stage of execution or in a collateral proceedings like, the present case, in the proceedings before the authorities under the National Highways Act, 1956, for getting compensation. The defect of the jurisdiction, strikes at the very authority of the Court to pass the decree, which cannot be cured by the consent or the waivers of the parties. Thus, even if the judgment of the probate case given by learned 2nd Additional 25 District Judge, Hazaribagh has not been challenged, still the issue of right, title and interest upon the property in question of the testator of the Will (Lalo Devi in the facts of the present case) or the beneficiaries of the Will or of all the parties who are contesting the probate case under Section 295 of the Indian Succession Act, 1925 (respondent nos. 5 to 9 in the Letters Patent Appeal or the original-petitioners) can always be questioned. The learned Single Judge has not committed any error in referring the matter to the Civil Court through the competent authority under the National Highways Act, 1956, especially under Section 3(H)(4) thereof.
(xiv) Counsel appearing for the appellants submitted that notice was issued by the authority under the National Highways Act, 1956. Objections were filed by the original-petitioners. These objections filed by the petitioners were brushed aside by the authorities under the National Highways Act, 1956 and hence, the learned Single Judge could not have referred the matter to the Civil Court as there is no demand of apportionment of the compensation.
This argument is not accepted by the Court, mainly for the reasons that:
(a) The probate case which is deciding the title of the property also is an order in nullity. It is a non est order. It is an order without any power, jurisdiction and authority. It creates no res judicata at all. The Competent Court under the National Highways Act, 1956 could not appreciate the fine 26 nicety of law, and
(b) on the basis of the decision in the probate case has wrongly brushed aside the claims of the original-petitioners and has granted whole compensation to theses appellants. This is an error apparent on the face of the record committed by the competent Court under the National Highways Act, 1956. This decision is rightly quashed and set aside by the learned Single Judge. This decision of the Land Acquisition Officer dated 20th October, 2011 (Annexure-8 to the memo of this Letters Patent Appeal) is nothing, but, the reiteration of the decision in the probate case, which also decides the title of the property of the testator (Lalo Devi). In fact, as stated herein above, the revenue entries reveal that there were originally three owners of the property in question. Lalo Devi is the successor-in-title of one of such owners. Prima facie, she could not have given the whole property of Khata No. 49 of Village Kothar, District-Ramgarh to the beneficiaries, Kishun Bedia, Mankuria and Maksu Bedia. In fact, the right, title and interest of the testator (Lalo Devi) could not have been decided by the Probate Court and hence, rightly the learned Single Judge has directed the competent Court under the National highways Act, 1956 to refer the matter to the Civil Court under Section 3(H)(4) of the Act, 1956.
7. As a cumulative effect of the aforesaid facts, reasons and judicial pronouncements, we see no reason to take any other views other than what has been taken by the learned Single Judge in the said writ petition. Thus, no error has been 27 committed by the learned Single Judge in deciding the writ petition being W.P.(C) No. 1230 of 2012 dated 12th December, and we are in full agreement with the decisions and the reason propounded by the learned Single Judge. Hence, there being no substance, this Letters Patent Appeal is hereby dismissed, with a cost of Rs. 10000/-, which shall be deposited by these appellants within a period of twelve weeks from today to the Co- operative Society, namely, Jharkhand High Court Middle Income Group, Legal Aid Society, Nyaya Sadan Doranda, Ranchi.
8. The matter referred under Section 3(H)(4) of the National Highways Act, 1956 will be decided by the Competent Civil Court, as early as possible and practically, preferably within a period of three months from the date of receipt of a copy of this order of this Court.
9. A copy of this order will be sent immediately by the Registrar General of this Court to the Principal District Judge, Ramgarh.
10. Registrar General of this Court will also send a copy of this judgment to all the Principal District Judges of all the districts and also to Principal Judicial Commissioner, Ranchi. Principal District Judges and Judicial Commissioner, Ranchi will percolate this judgment to other judges in their respective districts.
(D.N. Patel, J.) (Ananda Sen, J.) N.D/Amar