Jharkhand High Court
Bibi Sarjahatan vs Bibi Mamena Sheikh on 11 March, 2022
Author: Gautam Kumar Choudhary
Bench: Gautam Kumar Choudhary
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
M.A. No. 163 of 2006
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Bibi Sarjahatan .... .... .... Appellant
Versus
Bibi Mamena Sheikh .... .... .... Respondent
CORAM: HON'BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY For the Appellant : Mr. Srijit Choudhary, Advocate For the Respondent :
C.A.V. ON 28.03.2022 PRONOUNCED ON 11 /03/ 2022 This appeal has been filed by Bibi Sarjahatan, who has preferred an application under Section 276 of the Indian Succession Act for probate of Will executed by Bibi Sabiran wife of Late Sikandar Ali with respect to Schedule 'B' land in her favour.
2. The applicant is the daughter-in-law of executor of Will and Will was executed by registered deed dated 17.01.1997 as her last Will with respect to of Schedule 'B' property which was acquired by testator Bibi Sabiran through a sale deed bearing registration no. 5780 dated 26.11.1979 from one Samsuddin Sheikh son of Late Ahmad Sheikh. Opposite party no.1-Sadar Sheikh is brother of her husband and opposite party no.2-Mamena Bibi is his wife. Both the parties appeared and contested the probate application, consequently, it was converted into a Title Suit by the learned Court below vide order dated 13.02.2004.
3. It is the case of the opposite party/respondent that applicant in collusion with her husband Badruddin Sheikh set up a woman in place of Bibi Sabiran and got fraudulent deed executed in her favour. At the time of filing of the claim application Sadar Sheikh who happens to be the son of the testator was not made a party and only on getting to know about this case filed a petition for being impleading and was impleaded vide order dated 22.9.2003. As a matter of fact, Bibi Sabiran being very much pleased with the service of Sadar Sheikh (O.P.2), had executed an unregistered deed of gift in his favour on 07.06.1996 in presence of witnesses and the deed was accepted by the donee. Sadar Sheikh was living in the same house, therefore there was no requirement of delivery of possession. Sadar Sheikh for payment of Den Mohar to his wife executed sale deed No. 2099 dated 02.05.2001 in favour of his wife Mamena Bibi (O.P.). Vide order dated 15.06.04 Momena Bibi/respondent has also been impleaded in the case.
24. On the basis of pleadings of the parties, the following issues were framed:-
(i) Whether the deceased Sabiran Bibi had executed deed of gift on 07.06.1996 in favour of opposite party no.1-Sadar Sheikh and whether it is valid?
(ii) Whether Will in question is valid one and whether it can be probated?
5. The learned Court below dismissed the application for probate and decided the case in favour of the opposite party/respondent mainly on the following grounds:-
(i) That before execution of registered Will on 17.01.1997 in favour of applicant, Bibi Sabiran had executed an unregistered deed of gift on 07.06.1996 in favour of opposite party no.1-Sadar Sheikh. Under Section 147 of Mohammedan Law of Mulla, written gift is not required of movable or immovable property and the conditions for valid gift under Section 149 is as follows:
(a) Declaration of gift by the donor.
(b) Acceptance of the gift expressed or inclined by or on behalf of donee.
The possession of opposite party has been admitted by the applicant herself in her evidence. It is also well settled that the deed of gift under Mohammedan Law is not required to be compulsory registered under the Transfer of Property Act.
6. The order of learned Court below has been assailed on the ground that under Section 50 of Registration Act, "certain registered documents relating to land to take effect against unregistered documents". It is submitted that the learned Court below committed gross error by ignoring Exhibit 1 which was the registered deed of Will and only on the basis that the unregistered deed of gift had been executed before the date of execution of the registered Will the probate application has been rejected. It is further contended that there is no evidence on record to suggest that the deed of gift had ever been acted upon which will be evident from Exhibit 2 which is rent receipt in the name of Bibi Sabiran in the year 1998.
7. Reliance has been placed on the following authorities:
I. Sanjay Kumar Raha v. Michael Tigga, 2012 SCC Online Jhar 2119 : (2013) 3 AIR Jhar R 581 wherein it has been held that the Probate Court only has jurisdiction to see the genuineness of the Will. The question of right, title and interest are wholly beyond the jurisdiction of the Probate Court 3 and even after grant of Probate, suit for title can be filed The Probate Court also cannot decide as to whether the bequest is good, valid and as to whether they properly exist or not. Section 68 of the Evidence Act and Sections 59 and 63 of the Indian Succession Act are the only scope within which a Probate Court has to confine itself.
II. Nilambar Bera Vs Fagu Prusty AIR (38) 1951 Orissa 236 III. P.P.K. Gopalan Nambiar v. P.P.K. Balakrishnan Nambiar, 1995 Supp (2) SCC 664 at page 665 "It is trite that it is the duty of the propounder of the will to prove the will and to remove all the suspected features. But there must be real, germane and valid suspicious features and not fantasy of the doubting mind".
IV Uma Devi Nambiar v. T.C. Sidhan, (2004) 2 SCC 321 "A Will is executed to alter the ordinary mode of succession and by the very nature of things, it is bound to result in either reducing or depriving the share of natural heirs. If a person intends his property to pass to his natural heirs, there is no necessity at all of executing a Will. It is true that a propounder of the Will, has to remove all suspicious circumstances. Suspicion means doubt, conjecture or mistrust. But the fact that natural heirs have either been excluded or a lesser share has been given to them, by itself without anything more, cannot be held to be a suspicious circumstance especially in a case where the bequest has been made in favour of an offspring".
8. At the outset it may be noted that a probate court is not competent to determine the title of schedule property. The jurisdiction of a probate court is limited to determination that the WILL executed by the testator was his last WILL. Whether he had right to execute the will with respect to the schedule property is beyond the scope of the court considering a probate application. It has been held in Kanwarjit Singh Dhillon v. Hardyal Singh Dhillon, (2007) 11 SCC 357 "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 preserve the original will in its 4 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".
9. A probate court being a Court of conscience, the intention of the testator is paramount and it is the bounden duty of the Court to ascertain the real WILL of the testator, if any.
Court below dismissed the application for probate of the registered WILL only because an unregistered gift was allegedly made by the testator of WILL before the date of execution of the WILL. Quite interestingly instead of confining itself to the question of the due execution of the WILL, the Probate Court entered into discussion on the validity of unregistered WILL under the Mohamedan Law. The validity of the unregistered gift allegedly made by Sabiran Bibi in favour of Sadar Sheikh (O.P.1) was beyond the scope of inquiry in the probate proceeding. The Court should have confined itself to the due execution of WILL and any attending circumstance that made it suspicious.
10. The registered WILL executed on 17.01.1997 has been adduced into evidence and marked as Exhibit 1. The Will has been executed by Bibi Sabiran in favour of Bibi Sarjahatan, wife of Badruddin Seikh with respect to Jamabandi No.79, Private Plot No.105, measuring an area of 1 Bigha 10 Katha in the District of Sahebganj, Sub Division Rajmahal. It has been stated in the WILL that being happy and satisfied with the services rendered by the beneficiary of the WILL has been executed. AW 2 Tajmul Hussain, a scribe by profession, is the attesting witness he has deposed that it is the Will executed by Bibi Sabiran in favour of Bibi Sarjahatan on 17.1.97. This was registered in the registry office Rajmahal. He knows Bibi Sarjahatan who had put her thumb impression on the deed of Will in his presence. The writer of the deed was Sambhu Nath Vishwakarma. He has proved the will which has been marked as Exhibit 1. In his cross examination he has deposed that he has no personal knowledge about the date of execution of the will. He has further deposed in para 3 that he was the scribe of unregistered gift dated 7.6.96 executed by Sabiran Bibi in favour of Sadar Sheikh the O.P.no.1. He has proved the gift which has been marked as exhibit B. He has also proved the registered deed of sale which was scribed by him on 2.5.01 exhibit C. AW4 Sambhu Nath Vishwakarma is the scribe of the will and has deposed that he had written the will at the instance of Sabiran Bibi. And his cross 5 examination is deposed that he does not personally know Sabiran Bibi and Bibi Sarjahatan. Badruddin Seikh PW 5 has proved the registered sale deed dated 12.1.79 executed by Shamsuddin Seikh and Mojibur Sheikh in favour of Mojibur Sheikh. He has also proved the rent receipts which has been marked as Exhibit 3.
11. Altogether four witnesses have been examined on behalf of the opposite party.OPW-1 is the O.P.1 himself. He has deposed that land in question is situated in plot number 105 which belonged to his mother. It has been deposed by him that land in question had been transferred by oral gift and thereafter a written gift was executed by her mother in his favour. A part of the said land 15 Katha had been sold by him in favour of his wife by a registered deed of sale. In his cross examination he has deposed that the land was given by his father to his mother. He has denied that it was purchased by his mother from Samsuddin and Mojibur vide deed no.26.11.79. His father had died about three years before the death of his mother. He has identified the voters list of his mother and brother Badruddin Seikh which has been marked as Exhibits 6 and 6/A. He has denied that his mother used to live with his brother. In para eight he has deposed that his mother was not able to walk two years before her death. He has deposed that he cannot say whether his mother had ever visited Rajmahal registry office.
OPW 2 Md Kurhan Seikh is the attesting witness on the deed of gift. He has identified his signature on the gift deed which has been marked as Exhibit A. He has deposed in the cross examination that he cannot say the date of the gift deed, he has denied the suggestion that gift deed was a false document.
Akbar Ali OPW 3 is another attesting witness who deposed that he had put LTI on the gift deed and is supported the case of the opposite party regarding gift.
12. A chronology of events in such cases becomes at times a significant factor unfolding the intent, purpose or design if any of the parties involved in the case. A brief chronology of events is set out as under:
The schedule property was purchased by Bibi Sabiran by registered deed of sale on 26.11.79 Bibi Sabiran executes the registered deed of WILL on 17.1.97 6 The age of Sabiran Bibi at the time of execution of the WILL about 70 years as per her voter list Ext 6.
Testator dies on 19.11.97 The application for probate filed on 4.8.98 without impleading the
opposite parties who happen to be the son and daughter-in-law of the deceased testator.
Sadar Sheikh O.P. No.1 impleaded vide order dated 22.9.2003 on his application for impleadment.
Sadar Sheikh files a petition on the same day i.e. 22.9.2003 that his mother Bibi Sabiran had made an unregistered gift (sada hiba) in his favour for the schedule land.
Date of unregistered deed of gift 7.6.96 Ext B
Registered deed of sale executed by OP 1 in favour of his wife OP 2 on
2.5.2001 Ext C
Ext 6 is the Ration Card with the first entry from the date of 25.8.85
which the family composition applicant Badruddin Seikh and Bibi Sarjahatan to include the testator Sabiran Bibi.
13. From the above it is manifest that the testator was living with the applicant and her husband much before the execution of deed of registered WILL. The testator died on 19.11.97 and the probate application has been filed in 1998 without any delay. The attesting witness has been duly examined and he has proved the execution of the WILL. He has deposed that the WILL was registered in the registry office Rajmahal and Bibi Sarjahatan who had put her thumb impression on the deed of WILL in his presence.
14. Against these background facts, matter for consideration is whether there is any circumstance to raise suspicion over the execution of WILL?
15. It has been contended on behalf of the opposite parties in their written statement that the WILL was forged and executed by an imposter in the registry office in place of Sabiran Bibi. In support of this contention no evidence has been led on behalf of the opposite party. Main plank of the defence is the Sabiran Bibi had made gift of the suit property in favour of Sadar Sheikh 7.6.96. As discussed earlier the validity of this gift can not be adjudicate in the probate proceeding. It can be seen only as one of the circumstances, whether it raises any serious suspicion or doubt over the execution of the deed of Will. I find that this gift has no bearing on the present 7 probate application. The said gift was made on 7.6.96, but there is no evidence to show that it was ever acted upon and it surfaced only after the probate application was filed. Subsequence conveyance of the property by registered deed of sale by Sadar Sheikh to his wife will not confer any better title to his wife then what her really had. This gives credence to the contention on behalf of the appellant that gift was a forged and ante-dated document.
Under the circumstance, I find that the learned Court below completely misdirected itself while considering the probate application and instead of adjudicating on the due and valid execution of the Will, it entered into the issue of validity of gift.
The order of the learned Court below is accordingly set aside. Applicant has established her case for probate of the WILL.
The appeal is allowed.
Let a certificate for probate be, accordingly, drawn with respect to the WILL.
(Gautam Kumar Choudhary, J.) Jharkhand High Court, Ranchi Dated the 11th March, 2022 AFR / Anit