Patna High Court
Ramsagar Tiwary & Ors vs The State Of Bihar & Anr on 23 February, 2012
Equivalent citations: AIR 2012 PATNA 133
Author: Shailesh Kumar Sinha
Bench: Shailesh Kumar Sinha
IN THE HIGH COURT OF JUDICATURE AT PATNA
APPEAL FROM ORIGINAL ORDER NO.732 OF 2010
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From a decision of Shri Bijendra Kumar Singh, District Judge, Gopalganj dated 29th
of July, 2010 passed in Probate Case No.1 of 2007
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1. Ramsagar Tiwary, son of Late Gauri Shankar Tiwary.
2. Suresh Tiwary, son of Sukhsagar Tiwary
3. Yugal Kishore Tiwary, son of Sri Prem Sagar Tiwary
All resident of Pokhar Bhinda, P.S.-Uchkagaon,
District-Gopalganj.
.... .... Appellants
Versus
1. The State of Bihar through Collector, Gopalganj.
2. Prem Sagar Tiwary, son of Gauri Shankar Tiwary,
Resident of Pokhar Bhinda, P.S.-Uchkagaon,
District-Gopalganj.
.... .... Respondents
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Appearance :
For the Appellants : Mr. Manan Kumar Mishra, Sr.Advocate
with
Messrs. Vishwajeet Kumar Mishra &
A.K. Pandey, Advocates
For Respondent No.1 : G.A. 6
For Respondent No.2 : None
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CORAM: HONOURABLE MR. JUSTICE SHAILESH KUMAR SINHA
ORAL JUDGMENT
Date: 23-02-2012 This appeal is directed against the order dated 29th of July, 2010 in Probate Case No.1 of 2007 passed by the District Judge, Gopalganj, dismissing the aforesaid probate case filed for grant of the probate of the Will dated 15th of January, 1970.
2. The brief facts of the case are that one Bhukhla Kuwar, widow of Late Lal Tiwary, executed a Will dated 15th of January, 1970 in favour of the applicants-appellants on being pleased 2 Patna High Court MA No.732 of 2010 dt.23-02-2012 2/8 with their services. The said Will was got scribed by Late Kailash Prasad and after the same being read over and making her understand the Will, said Bhukhla Kuwar put her left thumb impression and got the same identified by said scribe Late Kailash Prasad. The witnesses on the request of the testator put their signatures as witness in her presence. The further case is that the applicants used to give services to said Bhukhla Kuwar and after her death, they performed Shradh and other rituals as per the custom under the Hindu Law. Said Bhukhla Kuwar died on 12th of November, 1971 at Village-Pokhar Bhinda, P.S.-Uchakagaon, District-Gopalganj. The applicants are the nephews of the testator Bhukhla Kuwar. The further case of the applicants-appellants was that the said Will was kept in the box by one of the applicants, namely, Ram Sagar Tiwary and after the same was taken out from the box, the application for the grant of the probate of the aforesaid Will was filed in respect of the property mentioned in Schedule-I of the application.
3. Upon general citation, one Prem Sagar Tiwary, who happens to be nephew of the husband of Bhukhla Kuwar, appeared and filed written statement. In the written statement, the execution and the existence of the Will was not denied rather it was admitted. However, it was stated in the written statement that the probate of the Will in question be granted after checking and being satisfied. 3 Patna High Court MA No.732 of 2010 dt.23-02-2012 3/8 Thereafter said Ram Sagar Tiwary left doing any Pairvi in the case.
4. Considering the pleadings, the following four issues were settled in the court below :-
"I) Whether the suit as framed is maintainable?
II) Whether the Will executed by Bhukhla
Kuwar on 15.1.70 is the last and genuine Will
and it has been properly executed by Bhukhla
Kuwar with her free consent and sound mind
and duly attested?
III) Whether the Will is related with property in
the plaint or not ?
IV) Whether the applicants are entitled for relief
as claimed in the probate petition?"
5. Upon considering the evidence of the applicant witnesses, the learned District Judge doubted the genuineness of the Will taking notice of the fact that the Will (Ext.1) was presented for its probate after more than 37 years. The L.T.I. of Bhukhla Kuwar was in the margin of the Will and not at the bottom even though there was good space for the same. Besides, the Will did not mention about any specific property rather the words "all properties" of the testator were mentioned. This apart, the learned court below did not find that any witness to the Will has stated that the testator was in such a mental condition so as to understand the nature of the documents. As regard the property mentioned in Schedule-I of the application for 4 Patna High Court MA No.732 of 2010 dt.23-02-2012 4/8 probate, the learned court below also held that there was nothing on the record to show that the property mentioned in the Schedule either belonged to the testator Bhukhla Kuwar or her husband and in absence of such material, it cannot be ascertain as to whether the Will in question relates to the property mentioned in Schedule-I of the application for probate. Accordingly, on such observations/findings, the application for probate was dismissed.
6. Mr. Manan Kumar Mishra, learned Senior Counsel appears on behalf of the appellants. Respondent no.1 is present. However, no one appears on behalf of respondent no.2 despite service of notice.
7. Mr. Mishra, learned Senior Counsel appearing for the appellants submits that the learned court below dismissed the probate application primarily on the grounds that (i) the application for probate was filed after 37 years, (ii) the left thumb impression (L.T.I.) of Bhukhla Kuwar was not put at the bottom of the Will, (iii) the words "all properties" as mentioned in the Will suffer from vagueness, (iv) in the absence of any evidence on the record that the testator was in such a mental condition so as to understand the nature of the Will and (v) that the title to the property as mentioned in Schedule-I was not established by the applicants that those belonged to the testator Bhukhla Kuwar. Mr. Mishra further submits that under 5 Patna High Court MA No.732 of 2010 dt.23-02-2012 5/8 the provisions of the Indian Successions Act, 1925, there is no specific period of limitation prescribed for filing an application for probate. It is submitted that the cause of action accrues each and every day after the death of the testator and as such, it can be filed at an appropriate time. It is further submitted that it was not in dispute that the Will in question was kept in the box and necessity of probate was not felt earlier and as such when the necessity of probate was felt by the applicants, the application for probate of the Will in question was filed. Learned counsel in support of his assertion that the cause of action remains continued till the Will is not probated as the application for probate of the Will cannot be barred by limitation in view of the explanation for not probating the Will earlier, relied upon a Division Bench decision of this Court in the case of Ramanand Thakur v. Parmanand Thakur, reported in AIR 1982 Patna 87.
As regards the question that the L.T.I. was put in the margin and not at the bottom, it is submitted that there is no specific form prescribed for the Will and as such putting the signature in the margin of the Will was perfectly in order. As regards the words "all properties" mentioned in the Will, it is submitted that it can also be with respect to all the properties, movable and immovable, of the testator and as such it does not suffer from any vagueness.
The question whether the testator has right and title or not 6 Patna High Court MA No.732 of 2010 dt.23-02-2012 6/8 with respect to the property sought to be probated could be the question of title, which cannot be gone into in a probate proceeding in which the question of genuineness of the Will is the prime question to be considered.
With respect to the finding that the testator was in a good mental condition, learned counsel referred to the evidence of Jaleshwar Pathak, who appeared as A.W.1, and in his declaration filed at the time of filing of the probate case clearly stated that the testator was in a good mental condition and she after understanding the contents of the Will and its nature put her left thumb impression in the presence of Jaleshwar Pathak (A.W.1) and he (A.W.1) also put his signature at her request. The applicant Ram Sagar Tiwary also supported the application for probate, who appeared and gave his evidence as A.W.2. Therefore, it is submitted that in view of the averments made in the application read with the averments in the written statement as also the evidence, oral as also documentary adduced on behalf of the applicants, the application for probate ought to have been allowed and the order under appeal deserves to be set aside.
8. Upon considering the submissions of the appellants as also respondent no.1, it would appear that there is no specific period prescribed for filing the application for probate of the Will in terms of 7 Patna High Court MA No.732 of 2010 dt.23-02-2012 7/8 the provisions of section 276 of the Indian Succession Act, 1925. However, as per Article 137 of the Limitation Act, the same is to be filed within the limitation period of three years from the date right to apply accrues. A Division Bench of this Court in the case of Ramanand Thakur v. Parmanand Thakur, referred to above, has held that for filing application for probate, there could be no fixed starting point of limitation as the right to apply accrues every day for the probate of the Will. In the said case, the application for probate was filed after more than ten years.
9. As regards the mental condition and the title of the properties, it is submitted that the evidence of A.W.1 and A.W.2 as also the declaration of the attesting witness, who stood as A.W.1, has stated that the testator executed the Will in his presence scribed by Late Kailash Prasad, who made her understood the nature of the documents and after understanding, on the request of the testator, A.W.1 put his signature on the Will. Moreover, the existence or execution of the Will was also admitted in the written statement and, as such, there is no difficulty in holding that the Will in question did not suffer from any vagueness with respect to the property since the testator had mentioned that all her properties are bequeathed.
10. It is well settled that the question of title of the property under the Will sought to be probated is not a matter under 8 Patna High Court MA No.732 of 2010 dt.23-02-2012 8/8 consideration in the probate proceedings. In such proceedings, the only question to be considered is as to whether the Will is genuine. The issue as to whether the Bhukhla Kuwar or her husband had any title over the property mentioned in Schedule-I was not required to be gone into or that could not have been the subject-mater of consideration.
11. For the reasons and the discussions made above, this Court holds that the applicants-appellants were entitled to the grant of probate of the Will dated 15th of January, 1970 in their favour. I order accordingly. The order under appeal is set aside. The appeal, thus, succeeds and the same is allowed as indicated above. No costs.
(Shailesh Kumar Sinha, J.) Patna High Court, The 23rd of February, 2012.
P.N.M. N.A.F.R.