Jharkhand High Court
Sri Jawahar Lal Sharma vs Smt. Prabhawati Devi on 3 January, 2019
Equivalent citations: AIR 2019 JHARKHAND 49, 2019 (1) AJR 651, (2019) 203 ALLINDCAS 279, (2019) 4 CIVLJ 764, AIR 2019 JHA 49
Author: Rajesh Kumar
Bench: Rajesh Kumar
IN THE HIGH COURT OF JHARKHAND AT RANCHI
M.A. No. 447 of 2015
Sri Jawahar Lal Sharma ...Appellant/Plaintiff
Versus
1. Smt. Prabhawati Devi
2. Rakhi Kumar
3. Ranjana
4. Rakesh Kumar
5. J.N. Viswkarma
...Defendants/ Respondents
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Coram: HON'BLE MR JUSTICE RAJESH KUMAR
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For the Appellant : Mr. Indrajit Sinha, Advocate For the Respondents : Mr. PAS Pati, Advocate
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17/03.01.2019: Heard the counsel for the parties.
The present appeal had been filed under Section 299 of the Indian Succession Act, 1925, against the judgment and decree dated 28.07.2015 passed in Title Suit No.05 of 2008.
The application had been filed by the appellant under Section 276 of the Indian Succession Act, 1925, for grant of probate in respect of will created and executed by Shyamrathi Sharma on 18.07.1992 in favour of present appellant.
Shyamrathi Sharma was a holder of the property in the form of lease from the TISCO. The lease property is a piece of land measuring 2287 Sq. Ft. and holding No. 402, situated at Sonari West, New Lay Out, Jamshedpur. As per the terms of lease, the property in question is inheritable as well as renewable. The application filed by the appellant has been contested by the present respondents and accordingly, application has been converted as Title Suit No.05 of 2008 vide order dated 20.11.2008/26.11.2008. The facts are not in dispute. The learned Probate Court has framed issue for determination of the case, which is as follows:
"Whether the will dated 18.7.92 executed by Sri Shyamrathi @ Sri Shyamrathi Sharma in favour of Jawahar Lal Sharma is genuine and lawfully valid to the probated?"
The parties had led evidence. Since neither the fact is in dispute nor the parties have disputed any factual finding recorded by the court below and as such the court is not going into evidence.
It is an admitted case of the parties that the appellant and respondents are son and daughters of the testator. The Will has been found genuine and valid, as per the finding recorded by the Probate Court.
The Probate Court had travelled beyond the issue framed by it while considering the lease deed and returned the finding that the lease has expired on 01.01.1997, during the lifetime of testator, who died on 07.07.2006 and on this factual foundation, finding has been recorded by the Probate Court that there is no existence of property and as such no probate can be granted.
From the facts of the present case, following issues emerges for determination by this Court:
(i) Whether option of renewal in a lease agreement is right of property or not?
(ii) Whether existence of property is sinequanon for grant of probate?
So far issue No.ii is concerned, learned counsel for the appellant, has relied upon the judgement reported in the case of Kanwarjit Singh Dhillon versus Hardyal Singh Dhillon and others (2007)11 SCC 357 para-12, which reads as follows:
12. In Chiranjilal Shrilal Goenka v. Jasjit Singh and Ors., [1993] 2 SCC 507, 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 paragraph 15 at page 515 which runs 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 proceeding relates to the genuineness and due execution of the will and the court itself is under duty to determine it and perverse 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 herein earlier, in the case of Rukmani Devi (supra). 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 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.
On the strength of above judgement, it has been argued by the counsel for the appellant that since the title and existence of property is not the domain of the Probate Court and as such refusal on this ground is not tenable.
So far issue No.i is concerned, learned counsel for the appellant has relied upon the judgement reported in the case of Jagat Nath Mukherjee and others vs State of Bihar and others (2003) 2 JLJR 293 (HC) para-13, which reads as follows:
"The learned counsel for the petitioner, in support of the aforesaid contention relied upon the case of Ramendra Nath Khan v. State of Bihar reported in 1988 Bihar LT 540 and also to the cases of Brinda Basani Devi v. State of Bihar reported in (1989) 2 Bihar LJR 354. These petitioners have been living on this area for such a long period right from 1918 and every family has its ups and downs and if with the passage of time, the lessee lets out portions of the lease to earn their livelihood, the same cannot be termed to be such a gross violation authorizing the Khas Mahal Authorities to resume the land. Presumption of the land and taking forcible possession on such a ground amounts to virtually inflicting a punishment which is an extremely harsh step and totally disproportionate in the facts and circumstances of this case. The authorities under the Khas Mahal have no right to refuse the renewal of leases. Reference in this context can be made to the case of Deba Jyoti Dutt v. State of Bihar reported in 1987 Bihar LT 265. In that case, the High Court held that the authorities under the Khas Mahal Manual cannot take forcible possession and the High Court has jurisdiction to direct restoration of possession. It has also been held that renewal is a right and the authorities cannot act arbitrarily. Similar view has been taken in the case of Monmohan Lal Bhagat v. State of Bihar reported in 1987 Bihar LT 276 : (AIR 1988 NOC 8). It is also important to mention that the lease which was executed, way back in the year 1918 conferred a right upon the petitioners to have and to hold the property. Although it was for a period of 30 years, yet it constituted a promise on the part of the respondents to renew the lease because option for renewal was contained in the said lease deed itself. Therefore, renewal is a mere formality and it cannot be taken away by officers of the Revenue Department. In fact renewal of lease must be granted automatically."
On the strength of above judgment, argument has been advanced by the counsel for the appellant that since right of renewal itself is the property and as such, testament can be created of this right also. Testament is nothing but transfer of right and option of renewal is substantive right and as such, it can be subject matter of the Will even otherwise also.
Learned counsel for the respondents although has opposed the prayer made by the counsel for the appellant, but he could not assign substantive reason for negating the plea made by the counsel for the appellant.
From the above discussion, it appears that law is clear on the point that a Probate Court has to see only the genuineness and disposing mind of the testator. Once the Will has been found genuine, it cannot be refused merely on the ground of expiry of the lease period as option of renewal is a property and this can be bequeathed through Will.
Accordingly, both the issues are settled in favour of the appellant, holding that Probate Court is not concern with the title and existence of the properties itself and on this ground, probate cannot be refused. Further, option of renewal in a lease is a right of property and this can be subject matter of the Will.
In view of the above discussion, judgment and decree dated 28.07.2015 passed in Title Suit No.05 of 2008 is, hereby, set aside to the extent that Probate court is not supposed to look into the expiry of lease and even option of renewal is right of property. The matter is remanded back to the Probate court to take a fresh decision in accordance with law.
Accordingly, this appeal is allowed.
(Rajesh Kumar, J.) Ravi/Amar/AFR