JUDGMENT
T.N.K. Singh, J.
1. The present appeal under Section 299 of mejndian Succession Act, 1925 is directed against the judgment and order dated 09.04.99 passed by the learned Additional District Judge, Shri S. Paul, West Tripura, Agartala in Misc. (Probate) Case No. 7 of 1988 granting probate of the Will dated 21.03.88 made by Late Hiran Prabha in favour of the respondent.
2. Core questions i.e., (1) Whether the Court of Probate under the Indian Succession Act, 1925 is only concerned with the question as to whether the document (Will) put forward as the last Will and testament of a deceased person was duly executed and attested in accordance with law? (2) Whether at the time of such execution the testator had sound disposing mind? (3) Whether the probate Court is competent to decide the question of title of the property bequeathed by Will? Put up by the appellants in the present appeal for answers from this Court had already been answered in a Catena of cases by the Apex Court as well as this Court. It is too late for the day to allow this appeal by answering the question that the Probate Court under the Indian Succession Act, 1925 is competent to decide the questions of title of the property bequeathed by Late Hiran Prava Chakraborty by executing Will dated 21.03.88.
3. A short factual panorama which would be sufficient for effective decision of this appeal are that testatrix Hiran Prava Chakraborty executed the Will on 21.03.88 in respect of the property i.e., land measuring 6 gandas 2 karas appertaining to Khatian No. 5216 comprising C.S. Plot No. 14237 (P), 14238 (P), 14239(P)and 14240 (P) at mouja Agartala Sheet No. 16 classified as homestead in favour of respondent. The testatrix died on 17.04.1988 and the respondent is executor named in the Will. The Secretary of the respondent filed an application under Section 276 of the Indian Succession Act, 1925 for a prayer for granting probate of the Will dated 21.03.88 executed by the testatrix Hiran Prava Chakraborty during her life time bequeathing Will property mentioned above to the respondent in the Court of District Judge, West Tripura, Agartala and the said application had been registered as Misc. (P) Case No. 7/88. The Will dated 21.03.88 is the last Will and the testament of the testatrix.
4. The appellants and their parents filed objection in the Misc. (P) Case No. 7/88. In their objection, the appellants stated that the father of the appellants Jatindra Lal Chakraborty (now deceased) was the elder brother of the deceased husband of the alleged testatrix. The name of the deceased husband of the testatrix is Sri Birendra Lal Chakraborty. The name of the appellants’ mother is Pravati Devi. The Title Suit No. 38/74 was instituted by one Nidhu Lal Chakraborty as plaintiff against the parents of the appellants and the deceased husband of the testatrix impleading them as defendant for partition of the properties including the land bequeathed by the testatrix under the Will dated 21.03.88 and the suit was re-numbered as T.S. No. 1/76 and was disposed of on 29.09.78.
5. In the T.S. No. 1/76, the father of the appellants and deceased husband of the testatrix filed their joint statement stating that the father of the appellants and deceased husband of the testatrix had no right, title and interest over the land bequeathed by the testatrix under the Will dated 21.03.88. After disposal of the said T.S. No. 1/76 under the judgment and decree dated 29.09.78, the mother of the appellants preferred appeal being Appeal No. 1/78 before this Court against the judgment and decree dated 29.09.78. During the pendency of the appeal, mother of the appellants and the said Nidhu Lal Chakraborty settled their dispute amicably out of the Court and both of them filed compromise petition whereunder mother of the appellants got land measuring 13 gandas, 1 krantas, 11 and half dhurs including the property bequeathed under the Will dated 21.03.88. The appellants in their objection filed in the Misc. (P) No. 7/88 stated that the testatrix of the Will dated 21.03.88 had no right and interest over the alleged Will property mentioned in the Will dated 21.03.88 and also that testatrix knew the fact of partition during her life time. Knowing it fully well, she could not make such Will dated 21.03.88 for bequeathing the property to the respondent.
6. The learned Additional District Judge, West Tripura, Agartala framed the 4(four) issues in the Misc. (P) No. 7/88:
i) Is the case/suit maintainable in its present form’?
ii) Is the suit barred by the principles of estoppels, waiver and acquiescence, general and constructive? iii) Whether the petitioner is entitled to get probate of the Will executed by Hiran Prava Chakraborty on 21.03.88?
(iv) Whether the question “Title” of the property of the schedule of the Will can be determined in a proceeding for grant of probate?
7. The learned Additional District Judge, West Tripura, Agartala passed his impugned judgment and order dated 09.04.99 with a finding that the petitioner (respondent in the present appeal) has been able to establish that Hiran Prava Chakraborty has executed the Will dated 21.03.88 at her own volition and at the time of execution of the Will she was in full conscience and was in a good health and that the Will is genuine. As the Will is genuine, the petitioner (respondent herein) is certainly entitled to get probate of the same. In the impugned judgment and order dated 09.04.99, the learned Additional District Judge, by referring to various decisions of the Apex Court and also the decisions of the different High Courts had decided the issue No. iv that the Probate Court has no jurisdiction to decide the title of the property bequeathed in the Will.
8. In the present appeal the only thrust of the appellants is that the Probate Court under the Indian Succession Act, 1925 is competent to decide the title of the property bequeathed in the Will and the Probate Court would have rejected the application for probate i.e., Misc (P) Case No. 7/88, as the testatrix Hiran Prava Chakraborty has no right and interest over the land mentioned above bequeathed in the Will dated 21.03.88, in as much as, the competent Civil Court had already decided in the Title Suit stated above that Hiran Prava Chakraborty and her husband have no right and interest over the land bequeathed in the Will dated 21.03.88.
9. The learned Counsel appearing for the appellants in a very clear and unambiguous term stated that the appellants are not questioning the finding of the learned Additional District Judge, West Tripura, Agartala in his impugned judgment and order dated 09.04.99 that the petitioner (respondent herein) has been able to establish that Hiran Prava Chakraborty has executed the Will at her own volition and at the time of execution of Will, she was in full conscience and was in good heath and that the Will is genuine.
10. As stated above in the beginning of the judgment, it would not be even required to discuss at length by referring to the different provisions of the Indian Succession Act, 1925 and Catena of decisions of the Supreme Court for answering that the Probate Court under the Indian Succession Act, 1925 is not competent to decide the question of title of the property allegedly bequeathed by Will and it would be suffice if the reference is made to the following cases:
(1) Ishwardeo Naraih Singh v. Smt. Kamta Devi and Ors. .
(2) Chiranjilal Shrilal Goenka (Deceased) Through L.RS v. Jasjit Singh and Ors. .
(3) Keshah Prasad Shah v. Rampujan Shah and Ors. 2001 (3) GLT436.
11. Admittedly, the Indian Succession Act, 1925 is a self-contained code regarding an application for probate, grant or refusal of probate or an appeal earned against the decision of the Probate Court. The Probate proceedings shall be conducted by the probate Court in the manner prescribed in the Act and in no other ways. The Apex Court in Shri Mandir Sita Ramji v. Governor of Delhi and Ors. held that–“When a procedure is prescribed by the legislature, it is not for the Court to substitute a different one according to its notion of justice. When the legislature has spoken, the judges cannot afford to be wiser”.
12. (Ishwardeo Narain Singh v. Smt. Kamta Devi and Ors. (supra) is quoted hereunder:
Para-2, The dismissal of the application for probate on the ground that the disposition in favour of Thakurji is void for uncertainty can on no principle be supported and indeed learned Counsel appearing for the respondents has not sought to do no. 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 last 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. It is surprising how this elementary principle of law was overlooked by both the Courts below. However, as learned Counsel appearing for the respondents has not sought to support this ground nothing further need be said on that.
13. (Chiranjilal Goenka (Deceased) Through LRS v. Jasjit Singh and Ors. is quoted hereunder:
Para 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 purviews of the Probate Court. Therefore the only issue in a probate proceedings relates to the genuineness and due execution of the Will and the Court itself is under duty to determine it and preserve the original will in its custody. The Succession Act is a self-contained code insofar as the question of making an application for probate, grant or refusal of probate or an appeal carried against the decision of the Probate Court. This is clearly manifested in the fascicule of the provisions of the Act. The probate proceeding 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.
14. Para 10 of the judgment in Keshab Prasad Shah v. Rampujan Shah and Ors. (supra) are as follows:
Para 10–In view of the settled law by the Apex Court, for giving answer to the question posed in the opening paragraph of the judgment, it need not detain us any further. The answer is that a Probate Court can only go into the genuineness and the due execution of the will and nothing beyond that. It has no power to decide any question of title or the existence of the property itself or to the extent of property sought to be bequeathed. In other words, it cannot go into the question as to whether the will stood wholly or partially revoked.
The learned Counsel appearing for the appellants in order to substantiate the case of the appellants had referred the decision of the Apex Court in Gumpha (Smt) and Ors. v. Jaibai . It is fairly settled law that a judgment is to be understood in the context of the fact in that particular case (Reference: Radhakrishna Agarwal and Ors. v. State of Bihar and Ors. .
15. The fact of the case in Gumpha (Smt) and Ors. (supra) spelt out in Para 2 of the judgment which read as follows:
Para 2– How the dispute arose may be narrated, in brief, to determine if the High Court committed any error of law in setting aside the concurrent orders passed by the two Courts below dismissing the suit of the plaintiff-respondent for declaration of title and recovery of possession. It has been found and is not disputed that the last male holder had two wives. He executed a will of his property in 1941 giving one-half share to each of his wives till their life and the respondent, the only daughter, was to be ultimate beneficiary. The testator died in 1958. The next to die in 1966 was one of his wives, the stepmother of the plaintiff. But, few months before her death, she had executed a will in favour of the defendant-appellant, a complete stranger to the family, allegedly her domestic servant. It is the validity of this will, basically, which has been subject matter of dispute. According to the respondent, the will was invalid as her mother having right of maintenance only, she had no right or title which she could validly transfer by way of will in favour of the appellant. On pleadings of parties various issues were framed. It is not necessary to narrate them as the finding on the nature of interest that the mother of the respondent had in the property, was recorded both by the trial Court and First Appellate Court in her favour. It was held that her mother had life interest only. But the suit was dismissed as the life estate created under the will stood converted into absolute estate under Section 14(1) of the Act as it was in recognition of preexisting right. The High Court did not agree with this and held that the widow could not get larger interest than that was intended by the testator. Thus execution of the will by the last male holder in 1941, grant of life interest to the two wives, vesting of property ultimately in the daughter, death of the testator in 1958, his wife whose share is now in dispute in 1966 and bequeathing of the property by her in favour of the appellant few months before her death are facts which have been found to have been proved by all the Courts. The difference arose between the High Court and the two Courts – below on applicability of the law only.
16. From the above fact it is clear in Gumpha (Smt) and Ors. v. Jaibai (supra) that the respondent by filing the Civil Suit had questioned the interest and title of a female Hindu over the land bequeathed to her under a Will. Therefore, questioning of interest and title of a female Hindu in Gumpha (Smt) and Ors. (supra) over the property bequeathed to her by a Will is in a Civil Suit filed before a Civil Court and also that it was not before the Probate Court under the Indian Succession Act, 1925. Such being the situation spelt out from the fact of the case in Gumpha (Smt) and Ors. (supra), the ratio laid down therein shall not have the case of the appellants.
17. For the reasons discussed above, the present appeal is devoid of merit and accordingly the same is dismissed. Parties shall bear their own costs.