Patna High Court
Jitendra Narain Singh And Ors vs Tileshwari Kuer on 30 June, 2025
Author: Sandeep Kumar
Bench: Sandeep Kumar
IN THE HIGH COURT OF JUDICATURE AT PATNA
FIRST APPEAL No.175 of 1999
======================================================
1.1. Jitendra Narain Singh Son Of Late Chuman Narain Singh, At Present
Resident Of Village Teldiha P.S. Madanpur, District Aurangabad.
1.2. Nirmala Devi Widow Of Late Bitendra Narain Singh Resident Of Village
1.
Teldiha, P.S. Madanpur, District Aurangabad.
1.2. Sanu Kumar Singh Son Of Late Bitendra Narain Singh, Resident Of Village
2.
Teldiha, P.S. Madanpur, District Aurangabad.
1.2. Dimpal Kumar Singh, Son Of Late Bitendra Narain Singh, Resident Of Vil-
3.
lage Teldiha, P.S. Madanpur, District Aurangabad.
1.2. Neetu Kumari D/O Late Bitendra Narain Singh, Resident Of Village Teldiha,
4.
P.S. Madanpur, District Aurangabad.
... ... Appellants
Versus
1. Tileshwari Kuer Wife of Late Suresh Prasad Singh, Resident of Village
Sarawak, P.S. Kasma, District Aurangabad.
2. Ajay Kumar Singh Son of Late Suresh Singh, Resident of Village Sarawak,
P.S. Kasma, District Aurangabad.
3. Pravin Kumar Singh Son of Late Suresh Singh, Resident of Village Sarawak,
P.S. Kasma, District Aurangabad.
4. Chandra Bhusan Kumar Singh Son of Late Suresh Singh, Resident of Vil-
lage Sarawak, P.S. Kasma, District Aurangabad.
5. Shashi Bhushan Kumar Singh Son of Late Suresh Singh, Resident of Village
Sarawak, P.S. Kasma, District Aurangabad.
6. Hari Bhusan Singh Son of Late Suresh Singh, Resident of Village Sarawak,
P.S. Kasma, District Aurangabad.
7. Savita Kumari Wife of Prem Prakash Singh Resident of Village Nagariawan,
P.S. Nagariawan, District - Gaya.
8. Pratima Kumari D/o Late Suresh Prasad Singh, Resident of Village Sarawak,
P.S. Kasma, District Aurangabad.
9. Kunti Devi W/o Sheo Shankar Pratap Singh, Resident of Village - Barbhoja,
P.O. Deha, P.S. Karchhava, Distt. - Allahabad.
10. Madho Devi Wife of Birendra Pratap Singh, Resident of Village - Barbhoja,
P.O. Diha, P.S. Karchhava, Distt. Allahabad.
Patna High Court FA No.175 of 1999 dt.30-06-2025
2/45
11. Deota Devi W/o Damodar Pd. Singh, Resident of Vill. Bijidih, P.S. Bha-
banathpur, Distt- Garwaha.
12. Rita Devi W/o Manoj Singh, Resident of Vill. Bijidih, P.S. Bhabanathpur,
Distt- Garwaha.
... ... Respondents
======================================================
Appearance :
For the Appellants : Mr. Sanjay Kumar Singh, Advocate
Mr. Binod Kumar Singh, Advocate
For the Resp. Nos.1 to 8
& 10 to 12 : Mr. Mr. Vinay Kirti Singh, Sr. Advocate
Mr. Bijendra Kumar Singh, Advocate
For Resp. No. 9 : Mr. Uma Shankar, Advocate
Mr. Shiv Kumar Prabhakar, Advocate
======================================================
CORAM: HONOURABLE MR. JUSTICE SANDEEP KUMAR
ORAL JUDGMENT
Date : 30-06-2025
The instant First Appeal has been filed by the
original appellant / plaintiff namely, Chuman Narain Singh
against the judgment and decree dated 22.02.1999 passed by the
2nd Additional District Judge, Aurangabad, in Title Suit (Probate)
Case No.03 of 1979 (01 of 1993), whereby the grant of probate
was refused by the learned Judge upon determining that the
property as defined under the Will dated 25.08.1977 to be an
undivided property.
2. During the pendency of this appeal, the
original appellant / plaintiff namely, Chuman Narain Singh died.
Vide order dated 09.01.2013, a coordinate Bench of this Court
allowed two Interlocutory Applications i.e. I.A. Nos. No.7066 of
2007 and 213 of 2012 for substitution of legal heirs of the
Patna High Court FA No.175 of 1999 dt.30-06-2025
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deceased- appellant and accordingly, the legal heirs of original
appellant are on record.
3. The facts of this case, as culled out from the
records of the case, are that on 25.08.1977, a Will was executed
by one Matukdhari Singh who was the maternal uncle of the
executor and the original appellant / plaintiff namely, Chuman
Narain Singh. In the said Will, one Pukar Narain Singh and
Kishore Narain Singh were also legatees. Thereafter, the Will
was registered on 28.11.1978. There were altogether, three
attesting witnesses of the Will namely, Ramadhar Mishra,
Sidheshwar Singh and Ramji Tiwari and the scribe of the Will
was one Vinay Kumar Singh. The testator of the Will died on
02.09.1977.
4. Bishun Singh was the father of the testator-
Matukdhari Singh. He had four sons namely, Premdhari Singh, Namedhari Singh, Jagdhari Singh and Matukdhari Singh. Out of the four sons, Premdhari Singh and Namedhari Singh died issueless prior to the execution of the Will. Matukdhari Singh executed the Will in favour of his maternal nephews (bhagina) i.e. the sons of one of his sisters. Therefore, the testator- Matukdhari Singh executed the aforesaid Will in favour of the executor-Chuman Narain Singh and his two brothers namely, Patna High Court FA No.175 of 1999 dt.30-06-2025 4/45 Pukar Narain Singh and Kishori Narain Singh.
5. It is the case of the appellants that the testator-Mathukdhari Singh during his life time executed the Will bequeathing the property to the original appellant / plaintiff and his brothers. In the month of September, 1977, the testator- Mathukdhari Singh passed away and thereafter the aforesaid last Will and testament of the testator was registered on 28.11.1978 under the Indian Registration Act, 1908. Subsequently, on 26.06.1979, the original appellant-plaintiff Chuman Narain Singh preferred a probate case under section 276 of the Indian Succession Act, 1925, which was registered as Probate Case No.03 of 1979. In the aforesaid Probate Case, a caveat was filed by one Suresh Prasad Singh, son of Jadunandan Singh on 04.09.1980. This Caveator was the grandson of another sister of the testator-Matukdhari Singh and the aforesaid caveator was subsequently added as a party in the probate case.
6. On 12.04.1990, a written statement was filed by the caveator-Suresh Prasad Singh stating therein that he had filed the caveat in the case on 04.09.1980 and testator- Matukdhari Singh had died in the month of September, 1977 leaving behind his brother Jagdhari Singh and his heirs and successors who inherited his property including the lands and Patna High Court FA No.175 of 1999 dt.30-06-2025 5/45 house covered under the disputed Will and thereafter, came in possession. In the written statement, it has also been stated that said Jagdhari Singh performed Shradh ceremony of testator- Matukdhari Singh and to meet the cost of ceremony he sold some land covered under the disputed Will through different registered sale deeds to one Sheosharan Sao and others and further stated that Jagdhari Singh also gifted land and house to the caveator-Suresh Prasad Singh which was covered under the disputed Will vide registered gift deeds dated 02.11.1977 and 18.01.1979 and thereafter caveator-Suresh Prasad Singh acquired possession thereon as donee.
7. Subsequently, upon contest the aforementioned Probate Case was converted into a title suit vide order dated 17.09.1993 under section 295 of the Indian Succession Act, 1925 and renumbered as Title Suit (Probate) No.01 of 1993. Thereafter, on 18.10.1993 a second written statement was filed by caveator-Suresh Prasad Singh alleging therein that the plaintiff in collusion with scribe and attesting witnesses has brought the Will into existence and the Will is forged and fabricated and that the same has not been read over and explained to the testator nor has he admitted the same. Further, the testator was not in sound state of body and mind at Patna High Court FA No.175 of 1999 dt.30-06-2025 6/45 the time of execution of the disputed Will as he was suffering from heart trouble and eventually, died of heart attack. It is also alleged that the disputed Will was registered on 28.11.1978 i.e. after the death of the testator in collusion with Sub-Registrar and identifier - Sidheshwar Singh.
8. The caveator-Suresh Prasad Singh died and thereafter his heirs were substituted in his place vide order dated 15.03.1994.
9. The learned trial court had framed all together six issues, which are as under :-
i. Whether the suit as framed is maintainable ?
ii. Has the plaintiff got cause of action for the suit ?
iii. Is the Will executed by Matukdhari Singh in favour of Chuman Narain Singh legal, valid and genuine ?
iv. Whether the petitioner is entitled to get a letter of administration in respect of property covered under the Will.
v. Whether the Will was executed by testator or not and whether it was executed in sound state of body and mind of testator ?
vi. Whether the plaintiff is entitled to relief as Patna High Court FA No.175 of 1999 dt.30-06-2025 7/45 claimed ?
10. On behalf of the original appellant / plaintiff all together 08 witnesses were examined, which are as under :-
P.W.-01 Ramadhar Mishra - one of the attesting witnesses P.W.-02 Sidheshwar Singh - one of the attesting witnesses P.W.-03 Vinayak Singh - scribe of the Will P.W.-04 Satyendra Nath Pandey P.W.-05 Sitaram Prasad Sharma - finger print expert P.W.-06 Triveni Nath Singh P.W.-07 Takrim Murtaja - photographer P.W.-08 Chuman Narain Singh - plaintiff
11. The following documents were exhibited on behalf of the original appellant / plaintiff :-
Ext.1 Basiyatnama (Wasiyatnama) - Will of Matukdhari Singh dated 25.08.1977 in favour of Chuman Narain Singh.
Ext.2 Report of fingerprint and handwriting expert. Ext.3 Deed of gift executed by Jagdhari Singh and Matukdhari Singh in favour of Chuman Narain Singh, Pukar Narain Singh, Kishori Narain Singh on 20.09.1975.
Ext.4 to 4a Negative of the photographs taken for the purpose of expert report Ext.5 to 5a Photograph taken out from the negative Ext.6 Service report of the notice issued to Sheosharan Singh
12. On behalf of the defendants, all together six witnesses were examined, which were as follows ;- D.W.-01 Kapildeo Singh - one of the purchasers from Suresh Prasad Singh, the Caveator.
D.W.- 02 Mishir Singh.
D.W.- 03 Suresh Narain Singh.
D.W.- 04 Bhola Prasad.
Patna High Court FA No.175 of 1999 dt.30-06-2025 8/45 D.W.- 05 Sheosharan Sao - also one of the purchasers from Suresh Prasad Singh, the Caveator.
D.W.- 06 Praveen Kumar - son of Suresh Prasad Singh, the Caveator.
13. The following documents were exhibited on behalf of the defendant :-
Ext.-A Registered sale deed executed by Suresh Prasad Singh in favour of Jamuna Singh and others. Ext.-B Deed of gift executed by Jagdhari Singh on 02.11.1977 in favour of Suresh Prasad Singh.
Exh - B/1 Another deed of gift executed on 18.01.1979 by Gajdhari Singh in favour of Suresh Prasad Singh. Ext.- B/2 Another sale deed executed on 18.11.1979 by Jagdhari Singh in favour of Sheosharan Sao. Ext.B/3 Sale deed executed by Suresh Prasad Singh on 08.11.1977 in favour of Sheosharan Sao.
Ext.B/4 Sale deed executed by Suresh Prasad Singh in favour of Sheosharan Sao.
Ext.B/5 Rent receipts.
and B/7
Ext.-C Deed of gift executed by Jagdhari Singh on
04.11.1976 in favour of Suresh Prasad Singh. Ext.-C/1 Signature of Suresh Narain Singh on the said Deed of Gift.
Ext. C/2 Signature of Radheshyam.
Ext. C/3 Signature of witness Bhola Prasad on the said
Deed of Gift.
14. Based on the testimonies of the witnesses and the documentary evidences adduced during the course of the suit, the court first took up the issue no.05 i.e., whether the Will was executed by the testator or not and whether it was executed in sound state of body and mind. The aforesaid issue no.05 was decided in favour of the original appellant-plaintiff. While Patna High Court FA No.175 of 1999 dt.30-06-2025 9/45 deciding this issue in favour of the original appellant / plaintiff, the trial court had considered the following facts before coming to the conclusion :-
(i) the Will mentions that prior to execution of the Will the testator and his brother had jointly executed a gift deed in favour of the original appellant / plaintiff in the year 1975 since he was Dehi and Darwari.
(ii) P.W.-1 Ramadhar Mishra, and P.W.-2 Sidheshwar Singh, both attesting witnesses to the Will, had supported the case of the original appellant / plaintiff. P.W.-3 Vinayak Singh, the scribe of the Will has also supported the case of the original appellant / plaintiff.
(iii) the fingerprint and handwriting expert after scientifically examining the signature of the testator from the Will and the specimen signature, had found that the signature on the Will was correct. In its support, a juxtapose chart along with the report was also submitted.
Patna High Court FA No.175 of 1999 dt.30-06-2025 10/45
(iv) the defendants therein never challenged the signature of the testator nor did they adduce any evidence to dispute the evidence led by the original appellant / plaintiff.
15. After considering the aforesaid facts and the statement of the witnesses, the trial court concluded that the Will was scribed on the instruction of the testator and was duly executed by Matukdhari Singh. The trial court further observed that P.W.-1 had stated that the Will was executed in single page and not on both sides of the page, however, the trial court did not hold this statement against the execution of the Will because the Court was satisfied with the detailed fingerprint and handwriting experts report. It has also been taken into consideration the fact that the defence witnesses were not in regard to challenge to the signature of the testator and further no expert has been examined on behalf of the defence to disprove the expert report marked as Exhibit-2. Accordingly, the court decided the issue no.5 in favour of the original appellant / plaintiff.
16. Thereafter, the court has taken issue no.3 and 4 jointly and decided the same against the original appellant / plaintiff. While deciding these issues against the original Patna High Court FA No.175 of 1999 dt.30-06-2025 11/45 appellant / plaintiff, the trial court had considered the following facts before coming to the conclusion :-
(i) In the plaint, it has not been stated that the testator had earlier executed a gift deed in favour of the original appellant / plaintiff and it is not his case that the testator was separated from his brother and that the property has been partitioned between them.
(ii) though P.W.-1 and P.W.-2 have stated that the testator had executed the Will in respect of his own property but in the cross-
examination, P.W.-2 had stated that Survey Khatiyan was maintained in the name of Jagdhari Singh and the land was not partitioned among the brothers of the testator.
(iii) though P.W.-8, the original plaintiff, in his cross-examination, had stated that the property in question was jointly held by Jagdhari Singh and Matukdhari Singh but they were separately recorded in the survey records. However, no separate khatiyan records were filed in the trial court to show Patna High Court FA No.175 of 1999 dt.30-06-2025 12/45 that the testator was separated from his brother Jagdhari Singh. In paragraph no.7 of the cross-examination, this witness had stated that there was a khangi Batwara between Jagdhari Singh and Matukdhari Singh in the year 1976 but no evidence was brought on record to support the same and further this fact of khangi Batwara was also not mentioned in the plaint for probate by the original appellant / plaintiff.
17. After considering the aforesaid facts and statement of the witnesses, the trial court concluded that the property covered under the Will was the joint property of the testator-Matukdhari Singh and his brother Jagdhari Singh, because even prior to the execution of the present Will the testator had jointly executed the deed of gift. Drawing strength from Article 368 of the Hindu Law by Mullah 14 th Edition, the trial court noted that a Hindu cannot bequeath or dispose of undivided interests in the co-parcenary property which could not be alienated by gift. Even in view of Article 357 of the said Hindu Law, gift may be made in respect of separate or self acquired property and as such, the court concluded that the Will Patna High Court FA No.175 of 1999 dt.30-06-2025 13/45 has been executed in respect of a joint property and no specific details of the property were mentioned in the Will. Further, the court noted that the scheduled-A annexed to the petition filed in the trial court appears to be an afterthought and as such, casting doubt on the Will and therefore, the Will in question cannot be said to be valid in the eyes of law and hence, these issues were decided against the original appellant / plaintiff.
18. Therefore, the remaining issues i.e. issue nos. 1,2 and 6 were also consequently decided against the original appellant / plaintiff and accordingly, the grant of probate was refused by the trial court and the suit was dismissed on contest. Being aggrieved by the dismissal of the suit, the original plaintiff-appellant has approached this Court.
19. The learned counsel for the appellants has vehemently argued that once the issue of genuineness and authenticity of the Will was decided in the favour of the original appellant / plaintiff by deciding issue no.5 in his favour, the remaining issues would naturally have to be decided in favour as well. However, the Court had decided the remaining issues 1 through 4, against the original appellant / plaintiff and as a consequence, the issue no.6 was decided as the plaintiff being not entitled to relief as sought. It is submitted that the trial court Patna High Court FA No.175 of 1999 dt.30-06-2025 14/45 vide the impugned judgment and decree had rejected to grant the relief as sought by the original appellant / plaintiff after coming to the conclusion that the Will property is an undivided property and as such, against the undivided property Will could not be executed.
20. It is emphasized by the learned counsel for the appellants that no such issue was framed on the question of partition between the testator and his brothers, nor was it appropriate to venture into that aspect in a proceeding for probate. It was further reiterated that the probate is a process of certifying the contents and authenticity of a Will and the Court has no jurisdiction to go into the question of deciding the title of the testator. As such, it is submitted that the probate proceedings are not the appropriate stage to adjudicate the title of a testator over the property in question since the proceedings were only confined and concerned with granting probate to the executor named in the Will. Once the executor has established that the Will has been duly and validly executed by the testator, the grant of probate can not be refused on the basis of property under Will being undivided, and the ownership of the property of the testator can not be determined in a probate case.
21. It is next submitted that the caveator- Patna High Court FA No.175 of 1999 dt.30-06-2025 15/45 defendant has also not challenged the title of the testator and had merely stated that the Will was forged, fabricated and a manufactured one but, the trial court had categorically decided that the Will in question was executed by the testator in a state of sound mind and body.
22. The learned counsel for the appellants has relied upon the decision of the Hon'ble Supreme Court in the case of Meena Pradhan & Ors. vs. Kamla Pradhan & Anr. reported as (2023) 9 SCC 734. Paragraph nos. 7 to 11 of the aforesaid decision read as under:-
"7. Before delving into the facts of the case, it is pertinent to reproduce the relevant provisions dealing with the validity and execution of the Will. 7.1. Section 63 of the Indian Succession Act, 1925 "63. Execution of unprivileged wills- Every testator, not being a soldier employed in an expedition or engaged in actual warfare or an airman so employed or engaged, or a mariner at sea, shall execute his Will according to the following rules:-
(a) The testator shall sign or shall affix his mark to the Will, or it shall be signed by some other person in his presence and by his direction.
(b) The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it Patna High Court FA No.175 of 1999 dt.30-06-2025 16/45 was intended thereby to give effect to the writing as a Will.
(c) The Will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the Will or has seen some other person sign the Will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgement of his signature or mark, or the signature of such other person; and each of the witnesses shall sign the Will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary."
7.2. Section 68 of the Evidence Act, 1872;
"68. Proof of Execution of document required by law to be attested - If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence."
8. Thus, a bare reading of the above-mentioned provisions would show that the requirements Patna High Court FA No.175 of 1999 dt.30-06-2025 17/45 enshrined under Section 63 of the Succession Act have to be categorially complied with for the execution of the Will to be proven in terms of Section 68 of the Evidence Act.
9. A Will is an instrument of testamentary disposition of property. It is a legally acknowledged mode of bequeathing a testator's property during his lifetime to be acted upon on his/her death and carries with it an element of sanctity. It speaks from the death of the testator. Since the testator/testatrix, at the time of testing the document for its validity, would not be available for deposing as to the circumstances in which the Will came to be executed, stringent requisites for the proof thereof have been statutorily enjoined to rule out the possibility of any manipulation.
10. Relying on H. Venkatachala Iyengar v. B.N. Thimmajamma 1959 Supp (1) SCR 426 (3-Judge Bench), Bhagwan Kaur v. Kartar Kaur, (1994) 5 SCC 135 (3-Judge Bench), Janki Narayan Bhoir v. Narayan Namdeo Kadam, (2003) 2 SCC 91(2- Judge Bench), Yumnam Ongbi Tampha Ibema Devi v. Yumnam Joykumar Singh, (2009) 4 SCC 780 (3-Judge Bench) and Shivakumar v.
Sharanabasappa, (2021) 11 SCC 277 (3-Judge Bench), we can deduce/infer the following principles required for proving the validity and execution of the Will:
10.1. The court has to consider two aspects: firstly, that the Will is executed by the testator, and secondly, that it was the last Will executed by him:
10.2. It is not required to be proved with Patna High Court FA No.175 of 1999 dt.30-06-2025 18/45 mathematical accuracy, but the test of satisfaction of the prudent mind has to be applied.
10.3. A Will is required to fulfil all the formalities required under Section 63 of the Succession Act, that is to say:
(a) The testator shall sign or affix his mark to the Will or it shall be signed by some other person in his presence and by his direction and the said signature or affixation shall show that it was intended to give effect to the writing as a Will;
(b) It is mandatory to get it attested by two or more witnesses, though no particular form of attestation is necessary:
(c) Each of the attesting witnesses must have seen the testator sign or affix his mark to the Will or has seen some other person sign the Will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgment of such signatures:
(d) Each of the attesting witnesses shall sign the Will in the presence of the testator, however, the presence of all witnesses at the same time is not required.
10.4. For the purpose of proving the execution of the Will, at least one of the attesting witnesses, who is alive, subject to Patna High Court FA No.175 of 1999 dt.30-06-2025 19/45 the process of court, and capable of giving evidence. shall be examined;
10.5. The attesting witness should speak not only about the testator's signatures but also that each of the witnesses had signed the will in the presence of the testator, 10.6. If one attesting witness can prove the execution of the Will, the examination of other attesting witnesses can be dispensed with:
10.7. Where one attesting witness examined to prove the Will fails to prove its due execution, then the other available attesting witness has to be called to supplement his evidence;
10.8. Whenever there exists any suspicion as to the execution of the Will, it is the responsibility of the propounder to remove all legitimate suspicions before it can be accepted as the testator's last Will. In such cases, the Initial onus on the propounder becomes heavier.
10.9. The test of judicial conscience has been evolved for dealing with those cases where the execution of the Will is surrounded by suspicious circumstances. It requires to consider factors such as awareness of the testator as to the content as well as the consequences, nature and effect of the dispositions in the Will; sound, certain and disposing state of mind and memory of the testator at the time of execution: testator executed the Will while acting on his own Patna High Court FA No.175 of 1999 dt.30-06-2025 20/45 free Will:
10.10. One who alleges fraud, fabrication, undue influence et cetera has to prove the same. However, even in the absence of such allegations, if there are circumstances giving rise to doubt, then it becomes the duty of the propounder to dispel such suspicious circumstances by giving a cogent and convincing explanation. 10.11. Suspicious circumstances must be "real, germane and valid and not merely the fantasy of the doubting mind". Whether a particular feature would qualify as 'suspicious' would depend on the facts and circumstances of each case. Any circumstance raising suspicion legitimate in nature would qualify as a suspicious circumstance for example, a shaky signature, a feeble mind, an unfair and unjust disposition of property, the propounder himself taking a leading part in the making of the Will under which he receives a substantial benefit, etc.
11. In short, apart from statutory compliance, broadly it has to be proved that (a) the testator signed the Will out of his own free Will (b) at the time of execution he had a sound state of mind (c) he was aware of the nature and effect thereof and
(d) the Will was not executed under any suspicious circumstances. (emphasis supplied)"
23. The learned counsel has also drawn strength from the judgment of this Court in the case of Makhan Prasad Patna High Court FA No.175 of 1999 dt.30-06-2025 21/45 Singh vs. Mishrilal Singh & Ors. (Civil Miscellaneous No. 383 of 2017) wherein this Court after discussing the facts of the case at hand had observed as under :-
"5. ...No doubt, a judgment in a probate of letter of administration is a judgment in rem. However, a judgment rendered in a probate proceeding would not be determinative of question of title. But general citation issued in terms of Section 283(1)
(c) of the Indian Succession Act calling upon all such persons who claimed to have any interest in the estate of the deceased is for those persons who have an interest in the estate left by the deceased.
Only because neither under Section 284 nor under Section 295 of the Indian Succession Act is the caveator required to show any interest in the estate of the deceased, the same would not mean that anybody and everybody who intends to oppose the grant of probate would be entitled to lodge caveat. Citations are issued in order to enable such persons to see the proceedings before the grant of probate and if necessary, to oppose the same. Furthermore, the interest claimed as caveatable interest must not be one which would have the effect of destroying the testator's estate. Any person claiming any interest adverse to the testator or his estate cannot maintain any application before the probate court and his remedy would lie elsewhere. This view has been taken by the Hon'ble Supreme Court in the case of Krisha Kumar Birla vs. Rajendra Singh Lodha & Ors, reported in (2008) 4 SCC 300.
06. Furthermore, the scope of proceeding in a LOA Patna High Court FA No.175 of 1999 dt.30-06-2025 22/45 case or probate case is very limited. In the case of Ishwardeo Narain Singh vs. Smt. Kumta Devi & Ors., reported in AIR 1954 SC 280, the Hon'ble Supreme held that Probate Court has only to decide as to whether the document put-forward is last Will and testament of the deceased person and was duly executed and attested in accordance with the law and whether the testator was of sound mind. Therefore, any question of title cannot be gone into in a probate proceeding and construction of Will relating to right, title and interest of any person is beyond the domain of probate court, and hence the Probate Court is not competent to determine the question of title or nature of ownership of the property of the testator or even the existence of property itself. (emphasis supplied)'
24. By making the aforesaid submissions and relying upon the aforesaid decisions, the learned counsel for the appellants has submitted that the impugned judgment and decree cannot be sustained since the trial court despite concluding that the Will in question having been duly executed by the testator has then proceeded on an erroneous application of law to refuse the grant of probate and therefore, the present appeal deserves to be allowed.
25. Learned Senior counsel for the respondents supported the impugned judgment and decree refusing to grant Patna High Court FA No.175 of 1999 dt.30-06-2025 23/45 probate in favour of the appellants and has submitted that after the death of the testator-Matukdhari Singh the property covered under the Will was inherited by his brother Jagdhari Singh, his heirs and successors, who inherited the property including the lands and house covered under the disputed Will and thereafter, they came in possession over the said property. Further, the learned Senior Counsel has emphasised that the brother of the testator i.e. Jagdhari Singh never appeared in the aforesaid probate case to give his evidence and no explanation for the same has been given.
26. Learned Senior Counsel for the respondents has also submitted that said Jagdhari Singh had performed the Shradh ceremony of the testator-Matukdhari Singh after selling some lands covered under the disputed Will through different registered sale deeds and also Jagdhari Singh had gifted some land and house covered under the disputed Will to the caveator - Suresh Prasad Singh vide registered gift deeds dated 02.11.1977 and 18.01.1979 and thereafter the said caveator-Suresh Prasad Singh acquired the possession thereon as donee. He has also pointed out that the disputed Will was registered on 28.11.1978 ie. after the death of testator in collusion with Sub-Registrar and identifier - Sidheshwar Singh.
Patna High Court FA No.175 of 1999 dt.30-06-2025 24/45
27. Learned Senior Counsel for the respondents has further submitted that the original appellant / plaintiff in collusion with the scribe and attesting witnesses has brought the Will into existence and therefore, the Will is forged and fabricated one. To elaborate this submission, learned Senior Counsel for the respondents has submitted that the recital of the Will and the signature of the testator are without date and without any endorsement.
28. Learned Senior Counsel for the respondents has also drawn the attention of this Court to the fact that the scribe of the Will could not explain the circumstances under which he came to the village -Teldiha since the Will was executed in Teldiha village and the scribe was not from the said village. Further, to make out of case for suspicious circumstances surrounding the Will, the learned Senior Counsel has further argued that according to the deposition of P.W.-3 (Vinayak Singh) the Will was executed only on one side of the page however, the Will has been written on both the sides of the page.
29. It has been submitted by learned Senior Counsel for the respondents that even the signature of third witness on the Will is doubtful as P.W.-2 Sidheshwar Singh has Patna High Court FA No.175 of 1999 dt.30-06-2025 25/45 categorically stated that after his signature on the Will, no one had put signature on the said Will but, the Will indicates that after the signature of P.W.-2 there is one another signature of witness namely, Ramji Tiwary, which is in a different ink.
30. By making the aforesaid submissions, learned Senior Counsel for the respondents has submitted that the impugned judgment and decree does not suffer from any illegality and therefore, the same does not warrant any interference by this Court .
31. Considered the submissions of the parties.
32. The records of the case reveal that the testator-Matukdhari Singh had executed a Will in favour of original appellant / plaintiff- Chuman Narain Singh. Consequently, the executor of the Will namely, Chuman Narain Singh preferred a probate case for grant of probate in his favour. Upon contest by the caveator-Suresh Prasad Singh, the aforesaid probate case was converted into a title suit. The learned trial court after framing the issues, decided to take the issue no.5 first as the same relates to the execution of the Will by the testator in a sound state of body and mind. The aforesaid issue was decided in favour of the original appellant / plaintiff but the remaining issues were decided against him.
Patna High Court FA No.175 of 1999 dt.30-06-2025 26/45
33. The trial court had duly considered the statements of the attesting witnesses while deciding the issue no.5, inasmuch as, P.W.-1-Ramadhar Mishra had categorically stated that the Will was scribed by the scribe-Vinayak Singh on the instructions of the testator, at village Teldiha and thereafter the scribe-Vinayak Singh had read over the contents of the Will to the testator. Subsequently, the testator himself read the Will and finally signed the aforesaid Will. This witness has stated that the testator had signed the aforesaid Will in his presence and thereafter this witness and other attesting witness and the scribe had put their signatures on the Will. The Court had noted that the signature of this attesting witness, P.W.-1-Ramadhar Mishra, was never challenged.
34. P.W.-2-Sidheshwar Singh, another attesting witnesses, has also supported the execution of the Will, inasmuch as, this witness has stated that the testator had put his signature in his presence and subsequently the other attesting witnesses had put their signatures on the request of the testator. P.W.-3 Vinayak Singh has also stated that he was the scribe of the Will in question and that he had drawn the Will on the instructions of the testator and thereafter it was read over to the testator.
Patna High Court FA No.175 of 1999 dt.30-06-2025 27/45
35. The trial court after considering the statements of the witnesses and relying heavily on the report of the fingerprint and handwriting expert (Exhibit-3) had concluded that the testator-Matukdhari Singh was in sound state of body and mind while executing the Will in question and that the signature on the Will marked as Exhibit-1 is that of the testator himself. The court had noted that the defendants had not challenged the signature of the testator. Finally, the trial court concluded that the Will in question was duly executed by the testator-Matukdhari Singh. At this stage, it is pertinent to note that the the respondents have not preferred to file a cross appeal / cross objection against the aforesaid issue decided against them.
36. It would be relevant to refer to a decision of the Hon'ble Supreme Court in the case of Banarsi & Ors. vs. Ram Phal reported (2003) 9 SCC 606 wherein the Hon'ble Supreme Court had held as under :-
"8. Sections 96 and 100 CPC make provision for an appeal being preferred from every original decree or from every decree passed in appeal respectively; none of the provisions enumerates the person who can file an appeal. However, it is settled by a long catena of decisions that to be entitled to file an appeal the person must be one Patna High Court FA No.175 of 1999 dt.30-06-2025 28/45 aggrieved by the decree. Unless a person is prejudicially or adversely affected by the decree he is not entitled to file an appeal. (See Phoolchand v. Gopal Lal [AIR 1967 SC 1470 : (1967) 3 SCR 153] , Jatan Kumar Golcha v. Golcha Properties (P) Ltd. [(1970) 3 SCC 573] and Ganga Bai v. Vijay Kumar [(1974) 2 SCC 393] .) No appeal lies against a mere finding. It is significant to note that both Sections 96 and 100 CPC provide for an appeal against decree and not against judgment.
9. Any respondent though he may not have filed an appeal from any part of the decree may still support the decree to the extent to which it is already in his favour by laying challenge to a finding recorded in the impugned judgment against him. Where a plaintiff seeks a decree against the defendant on grounds (A) and (B), any one of the two grounds being enough to entitle the plaintiff to a decree and the court has passed a decree on ground (A) deciding it for the plaintiff while ground (B) has been decided against the plaintiff, in an appeal preferred by the defendant, in spite of the finding on ground (A) being reversed the plaintiff as a respondent can still seek to support the decree by challenging the finding on ground (B) and persuade the appellate court to form an opinion that in spite of the finding on ground (A) being reversed to the benefit of the defendant- Patna High Court FA No.175 of 1999 dt.30-06-2025 29/45 appellant the decree could still be sustained by reversing the finding on ground (B) though the plaintiff-respondent has neither preferred an appeal of his own nor taken any cross-objection. A right to file cross- objection is the exercise of right to appeal though in a different form. It was observed in Sahadu Gangaram Bhagade v. Special Dy. Collector, Ahmednagar [(1970) 1 SCC 685 : (1971) 1 SCR 146] that the right given to a respondent in an appeal to file cross-objection is a right given to the same extent as is a right of appeal to lay challenge to the impugned decree if he can be said to be aggrieved thereby. Taking any cross-objection is the exercise of right of appeal and takes the place of cross-appeal though the form differs. Thus it is clear that just as an appeal is preferred by a person aggrieved by the decree so also a cross- objection is preferred by one who can be said to be aggrieved by the decree. A party who has fully succeeded in the suit can and needs to neither prefer an appeal nor take any cross-objection though certain finding may be against him. Appeal and cross- objection -- both are filed against decree and not against judgment and certainly not against any finding recorded in a judgment. This was the well-settled position of law under the unamended CPC.
10. The CPC amendment of 1976 has not materially or substantially altered the law Patna High Court FA No.175 of 1999 dt.30-06-2025 30/45 except for a marginal difference. Even under the amended Order 41 Rule 22 sub- rule (1) a party in whose favour the decree stands in its entirety is neither entitled nor obliged to prefer any cross-objection. However, the insertion made in the text of sub-rule (1) makes it permissible to file a cross-objection against a finding. The difference which has resulted we will shortly state. A respondent may defend himself without filing any cross-objection to the extent to which decree is in his favour; however, if he proposes to attack any part of the decree he must take cross- objection. The amendment inserted by the 1976 amendment is clarificatory and also enabling and this may be made precise by analysing the provision. There may be three situations:
(i) The impugned decree is partly in favour of the appellant and partly in favour of the respondent.
(ii) The decree is entirely in favour of the respondent though an issue has been decided against the respondent.
(iii) The decree is entirely in favour of the respondent and all the issues have also been answered in favour of the respondent but there is a finding in the judgment which goes against the respondent.
11. In the type of case (i) it was necessary for Patna High Court FA No.175 of 1999 dt.30-06-2025 31/45 the respondent to file an appeal or take cross-objection against that part of the decree which is against him if he seeks to get rid of the same though that part of the decree which is in his favour he is entitled to support without taking any cross-
objection. The law remains so post-
amendment too. In the type of cases (ii) and (iii) pre-amendment CPC did not entitle nor permit the respondent to take any cross-objection as he was not the person aggrieved by the decree. Under the amended CPC, read in the light of the explanation, though it is still not necessary for the respondent to take any cross-
objection laying challenge to any finding adverse to him as the decree is entirely in his favour and he may support the decree without cross-objection; the amendment made in the text of sub-rule (1), read with the explanation newly inserted, gives him a right to take cross-objection to a finding recorded against him either while answering an issue or while dealing with an issue. The advantage of preferring such cross-objection is spelled out by sub-rule (4). In spite of the original appeal having been withdrawn or dismissed for default the cross-objection taken to any finding by the respondent shall still be available to be adjudicated upon on merits which remedy was not available to the respondent under the unamended CPC. In the pre-amendment Patna High Court FA No.175 of 1999 dt.30-06-2025 32/45 era, the withdrawal or dismissal for default of the original appeal disabled the respondent to question the correctness or otherwise of any finding recorded against the respondent.
12. The fact remains that to the extent to which the decree is against the respondent and he wishes to get rid of it he should have either filed an appeal of his own or taken cross-objection failing which the decree to that extent cannot be insisted on by the respondent for being interfered, set aside or modified to his advantage. The law continues to remain so post-1976 amendment...
37. The final conclusion of the Hon'ble Supreme Court in Banarsi (supra) is as under:-
13. We are, therefore, of the opinion that in the absence of cross-appeal preferred or cross-
objection taken by the plaintiff-respondent the first appellate court did not have jurisdiction to modify the decree in the manner in which it has done. Within the scope of appeals preferred by the appellants the first appellate court could have either allowed the appeals and dismissed the suit filed by the respondent in its entirety or could have deleted the latter part of the decree which granted the decree for specific performance conditional upon failure of the defendant to deposit the money in terms of the decree or could have Patna High Court FA No.175 of 1999 dt.30-06-2025 33/45 maintained the decree as it was passed by dismissing the appeals. What the first appellate court has done is not only to set aside the decree to the extent to which it was in favour of the appellants but also granted an absolute and out-and-out decree for specific performance of agreement to sell which is to the prejudice of the appellants and to the advantage of the respondent who has neither filed an appeal nor taken any cross-objection. (emphasis supplied) "
38. This Court in the case of Bhagwatia Devi vs. Arjun Prasad Thathera reported as (2012) SCC OnLine Pat 558 : (2013) 2 PLJR 134, relying on the judgment of the Hon'ble Supreme Court in the case of Banarsi (Supra) has observed as under -
"17. The principles underlying the provision of Order 41 Rule 22 is no longer res integra. In the case of Banarsi v. Ram Phal, 2003 (9) SCC 606, their lordships have considered this provision and laid down that in a case where the challenge to a finding by the court below, if succeeds, would result in the modification/variation of the decree, the respondent cannot be permitted to do this in absence of a cross-
objection by him. It would be condign here to notice their lordships' observation:
"...A respondent may defend Patna High Court FA No.175 of 1999 dt.30-06-2025 34/45 himself without filing any cross-
objection to the extent to which decree is in his favour; however, if he proposes to attack any part of the decree he must take cross-
objection..."
39. In the present case, the issue no.5, originally decided by the trial court vide impugned judgment and decree, which was passed after duly considering the statements of the witnesses and the documents on record but the original defendants/ respondents have not preferred any cross-appeal or cross-objection assailing the impugned judgment and decree to the extent that the same is against them makes it impermissible for this Court to consider the arguments challenging the genuineness of the Will at this stage. Therefore, the conclusion of the trial court decided under issue no.5 would remain intact.
40. Considering the aforesaid facts and also the law laid down by the Hon'ble Supreme Court in the case of Banarsi (supra), I am of the considered view that at this stage this Court would not interfere with the aforesaid finding of the trial court decided under issue no.5.
41. Now turning to the fact that the trial court decided the issue nos.3 and 4 jointly, the import of which is whether the Will executed by the testator - Matukdhari Singh in Patna High Court FA No.175 of 1999 dt.30-06-2025 35/45 favour of the executor - Chuman Narain Singh was legal, valid and genuine and further whether the original appellant / plaintiff Chuman Narain Singh was entitled to get the relief of grant of probate/LoA in respect of the property covered under the Will.
42. From a close reading of the impugned judg- ment and decree, it appears that the trial court was of the opinion that since, the property covered under the Will was in the nature of undivided joint property, these issues were jointly decided against the original appellant/ plaintiff.
43. In the case of Chiranjilal Shrilal Goenka vs. Jasjit Singh reported as (1993) 2 SCC 507, the Hon'ble Supreme Court relying on earlier judgment in the case of Ishwardeo Narain Singh vs. Smt Kamta Devi (1953) 1 SCC 295 had held as under :-
"15. In Ishwardeo Narain Singh vs. Smt Kamta Devi [(1953) 1 SCC 295 : AIR 1954 SC 280] 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 Patna High Court FA No.175 of 1999 dt.30-06-2025 36/45 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."
44. It is a settled position that the scope of the probate Court is very limited. The Hon'ble Supreme Court in the case of Krishna Kumar Birla vs. Rajendra Singh Lodha reported as (2008) 4 SCC 300 has held that the Probate Court does not decide any question of title or of the existence of the property itself. This principle has been reiterated in the case of Pasupati Nath Das vs. Chanchal Kumar Das & Ors. reported Patna High Court FA No.175 of 1999 dt.30-06-2025 37/45 as (2018) 18 SCC 547.
45. In Kanwarjit Singh Dhillon vs. Hardyal Singh Dhillon & Others (2007) 11 SCC 357, the Hon'ble Supreme Court has again reiterated that the Probate Court is not competent to determine the question of title of the properties forming subject-matter of a Will. The Probate Court has only to decide as to whether the document put-forward is the last Will and testament of the deceased person and was duly executed, in sound state of body and mind, and attested in accordance with law.
46. From the above discussions, it is clear that it is not competent or proper for the probate court to determine the question of title of the properties under a Will or the existence of the properties. The question whether a particular bequest is good or bad is not under the purview of the probate court.
47. Turning to the facts of the present case, the trial court had decided issue nos.3 and 4 jointly against the original appellant / plaintiff on the ground that the property under the Will was undivided/joint property, which should not be decided by the probate court and therefore, the findings recorded under the aforesaid issues are erroneous and outside the bounds of jurisdiction for the Court considering grant of Patna High Court FA No.175 of 1999 dt.30-06-2025 38/45 probate. Having already decided that the Will in question was duly executed by the testator-Matukdhari Singh, in a sound state of body and mind, and having satisfied itself in the affirmative, on the statutory requirements of proving the Will, it would be improper for the trial court to refuse to grant probate merely because the title of the testator is not established before the trial court.
48. At this stage, it is pertinent to note that after coming into force of the Hindu Succession Act, 1956, there is no bar for execution of Will with respect to even joint family property as provided under Section 30 of the Hindu Succession Act, 1956. It would be apposite to refer to section 30 of the Hindu Succession Act, which reads as under :-
"30. Testamentary succession.―1 Any Hindu may dispose of by will or other testamentary disposition any property, which is capable of being so disposed of by him or by her, in accordance with the provisions of the Indian Succession Act, 1925 (39 of 1925), or any other law for the time being in force and applicable to Hindus.
Explanation.―The interest of a male Hindu in a Mitakshara coparcenary property or the interest of a member of a tarwad, tavazhi, illom, kutumba or kavaru in the property of the tarwad, tavazhi, illom, Patna High Court FA No.175 of 1999 dt.30-06-2025 39/45 kutumba or kavaru shall, notwithstanding anything contained in this Act or in any other law for the time being in force, be deemed to be property capable of being disposed of by him or by her within the meaning of this 3 section."
49. Section 30 of Hindu Successions Act, 1956 permits a member of a Mitakshara coparcenary to dispose of by Will his undivided interest in the coparcenary property (re:
Article 367 (2), Part-1, Chapter-XIX 'Wills' of Mulla Hindu Law 25th Edition).
50. What falls from a bare reading of the afore- quoted provision of the Hindu Succession Act, 1956 is that a male Hindu could very well dispose his interest in a Mitakshara coparcenary property by Will or other testamentary disposition.
51. The High Court of Himachal Pradesh in the case of Kartari Devi & Ors. vs. Tota Ram reported as MANU / HP / 0114 / 1991, after referring to Section 30 of the Hindu Succession Act, 1956, has held as under:-
"5. Now, it is to be seen how far Section 30 of the Act has made inroads into the Hindu Law. The Mitakshara system of Hindu law recognises two modes of devolution of property, namely, survivorship and succession. The rule of survivorship applies to Joint Hindu Family property whereas the Patna High Court FA No.175 of 1999 dt.30-06-2025 40/45 rule of succession applies to separate property of the members of Joint Hindu Family. Further, under the Mitakshara system, every member of Joint Hindu Family has only one undivided interest in the joint property. The Joint Hindu Family consists of all persons lineally descendant from a common ancestor including their wives and unmarried daughters. But a coparcenaries is a much narrower body and it includes only those persons who acquire, by birth, an interest in the joint or coparcenaries property and they are the sons, grand sons and great grand sons of the holder of joint property, in other words, the three generations next to the holder in unbroken male descent. No female can become coparcener under the Mitakshara law. Similarly, the ancestral property is the property inherited by a male Hindu from his father, father's father or father's father's father. The essential features of ancestral property, according to the Mitakshara system, are that the sons, grand sons and great grand sons of the person who inherits it acquire an interest in it by birth and their rights attach to it at the moment of their birth. As such, coparcenaries property under Hindu law includes ancestral property.
6. The Act has neither abolished the Joint Hindu Family nor the Joint Hindu Family property nor it has interfered with the Patna High Court FA No.175 of 1999 dt.30-06-2025 41/45 special rights of those who are members of Mitakshara coparcenary body except in the manner and to the extent mentioned in sections 6 and 30 of the Act. In the present case, we are concerned with Section 30, which, alongwith its explanation, provides that a male Hindu may dispose of his interest in a Mitakshara coparcenary property by way of a will. By the explanation, the interest of a male Hindu in a Mitakshara coparcener property has been held to be the property capable of being disposed of in accordance with the provisions of the Indian Succession Act or any other law for the time being in force and applicable to Hindus. As the Indian Succession Act provides for testamentary succession by way of a will, it follows that the interest of a male Hindu in Mitakshara coparcenary property is capable of being disposed of by way of a will or other testamentary disposition. By using a non-obstante clause, that is, "notwithstanding anything contained in this Act or any other law for the time being in force", the explanation to Section 30 has been given an overriding effect. Even if there is anything contrary in the Act or any other law, which includes custom also, the interest of a male Hindu in Mitakshara coparcenary property is capable of being disposed of by way of will. In other words, the bar created by way Patna High Court FA No.175 of 1999 dt.30-06-2025 42/45 of custom that the coparcenary property is not capable of being alienated by executing a will by one of the coparceners is taken away and rule of survivorship is finished to a limited extent. But it continues to apply in the case of gift and other alienations which are inter vivos.
7. Therefore, in view of Section 30 of the Act, which specifically provides that interest of a male Hindu in Mitakshara coparcenary property is capable of being disposed of by way of will irrespective of any provision in the Act or any other law to the contrary, read with Section 4 of the Act, I hold without any hesitation that any custom prohibiting testamentary succession by way of will of a coparcenary property stands abrogated. In view of Section 30 read with Section 4 of the Act, a male Hindu governed by Mitakshara system is not debarred from making a will in respect of coparcenary/ancestral property.
8. For taking this view, I have taken support from Full Bench Judgment of Calcutta High Court in Commissioner of Wealth Tax, West Bengal, III Calcutta v. Sampatral Bhutoria and Sons 1981 TLR 1550, wherein in para 17 it has been held as under:
"Again, Section 30 of the Act makes provision for a male governed by Mitakshara Law to dispose of by a testament his interest in the coparcenary property, in such a case Patna High Court FA No.175 of 1999 dt.30-06-2025 43/45 the provisions of sections 6 and 8 would not be applicable. The general law of Mitakshara branch is now repealed by Explanation to Section 30 which lays down that such interest of a Hindu male under Mitakshara is to be deemed to be the property capable of being disposed of by will....
9. A similar view was taken by a Division Bench of Madras High Court in S.V. Sundaresan v. Assistant Controller of Estate Duty Combater 1983 TLR 1438. In Para 16 it has been observed:
...According to the original
Mitakshara law, no coparcener, not
even a father could dispose of by
will his undivided coparcenary
interest even if the other
coparceners consent to the
disposition. This is because the
moment the coparcener died his
undivided interest devolved by
survivorship on the other
coparceners. The title by
survivorship was considered to take precedence to the exclusion of that by devise. This rule of Mitakshara law has now been abrogated by Section 30 and the Explanation thereto Section 30 read with the explanation only empowers a coparcener to dispose of his Patna High Court FA No.175 of 1999 dt.30-06-2025 44/45 property by will in accordance with the provisions of the Indian Succession Act, 1925 or any other law for the time being in force. The section is confined only to testamentary disposition and does not cover disposition by way of gift inter vivos....
52. The aforesaid view of the learned Single Judge in Kartari Devi (supra) was upheld by the Division Bench of the Himachal Pradesh High Court in Tek Chand and Anr. vs. Mool Raj and Ors. reported as 1997 SCC OnLine HP
51. The view of the Division Bench of the Himachal Pradesh High Court came to be approved by the Hon'ble Supreme Court in Shyam Lal vs. Sanjeev Kumar and Ors. reported as MANU/SC/0576/ 2009.
53. In light of the above discussions, it is clear that a male Mitakshara Hindu could dispose of his undivided interest in coparcenary property and therefore, it follows that it is inescapable that the issues nos. 3 and 4, as well as, issues 1 and 2 decided against the original plaintiff is not sustainable on the ground that the trial court has declined to grant probate only on the ground that the property under the Will was undivided / joint property.
54. Accordingly, the findings recorded against Patna High Court FA No.175 of 1999 dt.30-06-2025 45/45 the appellants under issue nos.1 to 4 are hereby reversed and the application for probate is hereby granted in favour of the present appellants.
55. In view of the above, this appeal stands allowed in part. The impugned judgment and decree of the trial court is hereby modified to the extent as indicated in the preceding paragraphs.
(Sandeep Kumar, J) pawan/-
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