JUDGMENT
S.B. Sinha, J.
1. This first appeal Under Section 299 of the Indian
Succession Act arises out of a judgment dated 29th January, 1986 passed by
Shri S. Narayan in Probate Case No. 1 of 1982, whereby and whetherunder
the said learned Court allowed an application filed by the respondents for
grant of Letters of Administration in relation to the will dated 14-9-1973
executed by Mst. Sundarmani Devi.
2. The fact of the matter lies in a very narrow compass.
3. Mst. Sundarmani Devi executed a registered will dated 14-9-1973.
She died on 23-12-1981 at village Sikki Kala. According to the respondents,
Mst. Sundarmani Devi had great love and affection for the petitioner, as she
had rendered services to her husband. She out of her love and affection and
in view of the services rendered, executed and registered the aforementioned
will in her favour On the other hand, the case of the appellants was that the
testatrix had no authority to execute the said will. According to the appellants,
Sundarmani Devi being the wife of Lalji Singh, had no concern with the lands
under the will nor she had any interest therein.
4. It appears that prior to execution of the said will, Sundarmani Devi
had filed an application Under Section 46 of the Chotanagpur Tenancy Act
for grant of permission to execute the said will and therein the appellants were
heard and by an order dated 11-9-1973, permission was duly accorded to
Sundarmani Devi to execute the said will in a case bearing No. 3 of 1973-74
and the aforementioned will was executed in terms of the aforementioned
order.
5. An appeal was preferred by the appellants against the said order
but the said appeal was dismissed by the Additional Collector, Palamau in
terms of his order dated 10-10-1974.
6. The learned Court below found that the will was genuine and the
same was validly executed.
7. Mr. K.K. Sahay, the learned Counsel appearing on behalf of the
appellants submitted that the parties are cheros by caste and thus, they are
governed in the matter of inheritance and succession by their own customary
laws and not under the provisions of Hindu Succession Act, 1956.
8. It was submitted that even assuming that the parties were sufficiently hincuised and were thus governed under the provisions of Hindu Law in the
matter of inheritance and succession; but the provisions Of the Hindu Succession
Act, 1956 having no application in relation to the members of the Scheduled
Tribe, Sundarmani Devi, under the old Hindu Law had merely a limited interest
in the property in question and in that view of the matter too she was not
competent to execute the will in question.
The learned Counsel, in this connection, has relied upon a decision in
Mohari Mahto V. Mokaram Mahto, reported in AIR 1963 Pat 466. In Chotrai
Manjhi v. Rupi Manjhian, reported in 1990 (1) BLJR 501 and in Daudwa Uraon
v. Karueluous Urqbn, reported in 1988 PLJR 603.
9. The learned Counsel further submitted that it was obligatory on
the part of the learned Court below to consider this aspect of the matter and it
should have come to the conclusion that the aforementioned Sundarmani Devi
had no authority to execute the will in question as she was a limited owner.
In this connection, reliance has been placed in Jagdeo Singh v. Mt.
RajaKuer, reported in AIR 1927 Pat 262 and in Shambhu Dayal v. Basudeo
Sahai, reported in AIR 1970 Alld. 525.
10. Mr. Sahay further submitted that the will in question (Ext. 1) was
not legally proved inasmuch as in doing the same, the provisions of Section 68
of the Evidence Act were not complied with.
The learned Counsel, in this connection, relied upon Girja Dut. v.
Gangotri Datt, reported in AIR 1955 SC 346.
11. Mr. P.N. Sahu, the learned Counsel appearing on behalf of the
respondents, on the other baud, submitted that in view of the fact that the
respondents obtained prior permission of the Deputy Commissioner for executing the will, it must be held that the said will was genuine. It was further
submitted that the will in question has validly been proved on behalf of the
respondents.
The learned Counsel, in this connection, relied on Jai Narain v. Kedar
Nath, reported in AIR 1956 SC 359, in Smt. Jaswant Kaur v. Smt Amrit Kaur
reported in AIR 1977 SC 74 and in Krishna Kumar Sinha v. The Kayastha
Pathshala, reported in AIR 1966 Alld. 570.
12. It was, further submitted that in this case the scribe himself was
an attesting witness and thus he was competent to prove the will In this
connection the learned Counsel relied upon Sita Ram v. R.D. Gupta, reported
in AIR 1981 P&H 83.
13. Mr. Sahu next contended that in any event as the appellants did
not question the proof of the will before the Court below; he should not be
permitted to do so for the first time before the appellate Court Mr. Sahu
in this connection, relied upon Krishna Kumar Sinha v. The Kayastha Pathshala,
reported in AIR 1967 All 570.
14. The learned Counsel further submitted that the scope of an enquiry
in a proceeding for grant of letter of administration with a copy of will annexed thereto is a limited one and in such a proceeding a disputed question of
title cannot be gone into. The learned Counsel, in this connection, has relied uoon a Division
Bench decision of this Court in Rajeshwar Misser v. Sukhdeo Missir, reported
in AIR’ 1947 Pat 449; in Dukhu Mahato v. Shridhar Mahato reoorted in 1989
BLT 534 and in Jagojoti v. Barauchi, reported in AIR 1970 Orissa 28.
15. In view of the aforementioned rival contentions the following
questions arise for consideration in this appeal:
(1) Whether the learned Court below could have enquired into the
(2) Whether the will in question has legally been proved ?
16. Re Question (1) :
Section 278 of the Indian Succession Act reads are follows :-
278. “Petition for letter of administration-(1) Application for letters of
administration shall be made by petition distinctly written as aforesaid and stating
(a) the time and place of the deceased’s death;
(b) the family or other relatives of the deceased and their respective
residences;
(c) the right which the petitioner claims;
(d) the amount of assets which are likely to come to the petitioner’s
hands;
(e) when the application is to the District Judge that the deceased
at time of his death had a fixed place of abode, or had some
property, situate within the jurisdiction of the judge; and
(f) When the application is to a District Delegate that the deceased
at the time of his death had a fixed place of abode, within the
jurisdiction of such Delegate.
(2) Where the application is to the District Judge and any portion
of the assets likely to come to the petitioner’s hand is situate in
another State, the petition shall further state the amount of such
assets in each State and the District Judges within whose jurisdiction such assets are situate. From a perusal of the aforementioned provision, it would appear that
an application will be entertained if the same has been filed in compliance with
the requirements mentioned therein.
17. In Rajeshwar Missir v. Sukhdeo Missir, reported in AIR 1947 Pat. 449, a Division Bench of this Court held as follows :
“The application was opposed by respondent Sukhdeo Missir
who is the son of Padarath Missir another brother of Hazari Missir.
The document in question purports to make a disposition of the
property of Sarwan and Balgovind Missir in favour of six sons of
Hazari. Sarwan and Balgobind died some time in the year 1928. The
present application was filed on 13-9-1940, by the four applicants, the
other two sons of Hazari Missir having died in the mean time. The
application was opposed on the grounds, firstly, that the document is
not a genuine document executed by Sarwan and Balgobind Misser,
secondly, that it is not a will at all but is a deed of partition, thirdly
that, at the time of the execution of the document, they were not in a
sound disposing state of mind, and, fourthly, that, at the time of the
execution of the alleged will, they were joint with Padarath Missir
and as such had no right to execute the will. In an application for
probate, the Court has no jurisdiction to enquire into the nature of the
rights of the testator in the property covered by the will and so, the last
point was rightly ignored by the learned Additional District Judge, and
he has considered only whether the document was in fact executed by
the alleged testators, whether, at the time of the execution of the
document, they were in a sound disposing state of mind and whether
the applicants are entitled to probate. He decided the first two points
in favour of the applicants but, on the third point, he has decided
against them, holding that the document in question is not a will at
all. Hence, the present appeal.” (Underlining is mine)
18. In Mrs. Hem Nolni Judah v. Mrs. Isolyne Sarojbashi Bose, reported in AIR.1962 SC 1471, the Supreme Court held that the questions of title are
not decided in proceeding for grant of probate or letters of administration. It
was further held whatever, therefore, might have happened in those proceedings,
could not establish the title. In Jagojoti v. Bararuchi, reported in AIR 1970
Orissa 28, the aforementioned decision has been followed.
Reference, in this connection, may also be made to Chintaman v. Ram
Chandra, reported in ILR 34 Bom. 589; Kashi v. Govinda, reported in 1952
Calcutta Weekly Notes 914 and in Panna Banerjee v. Kalikinkor, reported in
AIR 1974 Cal. 126.
19. The effect of grant of probate, therefore, is that it does not prove
the executrix’s title of the property involved in the application for probate as
derived from the deceased testator, nor does it prove that such property exists
in facts. In an application for grant of probate, the Court has no jurisdiction
to enquire into the nature of the rights of the testator in the property covered
by the will. The question as to whether the testatrix Sundarmani Devi has any
right in relation to the property in question or not, thus could not have been
gone into by the learned Court below.
20. In Dukhu Mahata Shridhar Mahata, reported in 1989 BLT 534,
this Court has held :
“It appears that the Court below had gone into the question of
title which was wholly outside the scope of the probate Court. All
that it was required to record was whether it was genuine and valid.
For that firstly it was required to record a finding whether the will
was executed keeping in view the provision of Section 63 of the Act
and in the circumstances of this case proved in terms of Section 69 of
the Evidence Act. Since there has been non-compliance of Section 69
of the Evidence Act, i.e. the will has not been proved in accordance
with law, letters of administration could not have been granted in
favour of the propounders.
21. In Jagdeo Singh v. Mt. Raja Kuer, reported in AIR 1927 Pat. 262,
it was held that under the Hindu Law, a legatee from a widow does not derive
any interest. In that case the question which fell for consideration before the
Division Bench was as to whether the legatee under the will derived any interest
m the property or not and in that context it was held that the legatee of a
Hindu widow did not derive any interest whatsoever in the property. In
Shambhu Dayal v. Basudeo Sahai, reported in AIR 1970 Alld 525, the decision
of the Patna High Court aforementioned and other decisions have been followed
by a Full Bench of the Allahabad High Court.
22. In this case, as noticed hereinbefore, this Court is not concerned
with the title of Sundarmani Devi in the property nor this Court is concerned
with as to whether by reason of the will, the opposite party has derived any
right, title and interest or not. Such a pure question of title can only be considered in an appropriate suit by a competent Civil Court did not by a testamentary Court in view of the settled principles of law, as noticed hereinbefore.
23. In this view of the matter, in my opinion, the submission of Mr.
Sahay cannot be accepted.
24. Re : Question (2):
The word “attested” has been defined in Section 3 of the Transfer of
Property Act in the following term :
“Attested”-“Attested in relation to an instrument, means and
shall be deemed always to have meant, attested by two or more witnesses each of whom has seen the executant sign or affix his mark to
the instrument, or has been some other person sign the instrument in
the presence and by the direction of the executant, or has received
from the executant a personal acknowledgment of his signature or
mark, or of the signature of such other person, and each of whom
has signed the instrument in the presence of the executant; but it shall
not be necessary that more than one of such witnesses shall have
been present at the same time, and no particular form of attestation
shall be necessary.”
Section 68 of the Indian Evidence Act, 1972 reads as follows:
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 :
Provided that it shall not be necessary to call an attesting witness
in proof of the execution of any document, not being a will, which
has been registered in accordance with the provisions of the Indian
Registration Act, 1908 (16 of 1908), unless its execution by the
person by whom it purports to have been executed is specifically
defined.”
Section 63(c) of the Indian Succession Act reads as follows:
“The will shall be attested by two or more witnesses each of
whom has been the testator sign or affix his mark to the will or has
seen some other persons sign the will, in the presence and by the
direction of the testator, or has received from the testator a personal
acknowledgment 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.”
25. In Beni Chand v. Kamla Kunwar, reported in AIR 1977 SC 63 it
was held :
“Section 68 of the Evidence Act deals with proof of the execution of documents required by law to be attested. It provides that
such documents shall not be used as evidence until at least one attesting witness has been called to prove the execution, if there be an
attesting witness alive and subject to the process of the Court and
capable of giving evidence. Since by Section 63 of the Succession
Act, 1925 a will has to be attested by two more witnesses, Section 68
of the Evidence Act would come into play and therefore it was
incumbent on the propounder of the will to examine an attesting
witness to prove due execution of the will. But this argument overlooks that Dwijendra Nigam is himself one of the three persons who
made their signatures below the. thumb impression of Jaggo Bai.
None of the three is described in the will as an attesting witness but
such labelling is by no statute necessary and the mere description of a
signatory to a testamentary document as an attesting witness cannot
take place of evidence showing due execution of the document. By
attestation is meant the signing of a document to signify that the
attestator is a witness to the execution of the document. And by
Section 63(c) of the Succession Act, an attesting witness is one who
signs the document in the presence of the executant after seeing the
execution of the document or after receiving a personal acknowledgment from the executant as regards the execution of the document.”
26. In Jaswant Kaur v. Amrit Kaur, reported in AIR 1977 SC 74, the
Supreme Court followed its earlier decision in H. Venkatachala Iyengar v. B.N.
Thimmajamma, reported in AIR 1959 SC 443, wherein the propositions relating
to the nature and standard of the evidence required to prove a will, were laid
down.
27. AW 2 was the Sarpanch of the Sikki Kala Gram Panchayat, he
happened to be a close neighbourer of the testatrix. He stated that AW 3
scribed the will at the instance of Sundarmani Devi and the same was read over
and explained to her whereupon she with conscious and clear understanding of
the recitals of the deed, put her LTI thereupon. He also stated that after
Sundarmani Devi put her L.T.I. he had also signed in her presence. The respondents had examined AW 3 who is an attesting witness as also the scribe. He
was also a witness to the execution of the will by Sundarmani Devi and who
had known the testatrix from before.
28. In Girja Dutt v. Gangotri Dutt, reported in AIR 1955 SC 346 upon
which reliance has been placed by Mr. K.K. Sahay the Supreme Court did not
rely upon the oral testimony of the attesting witnesses as it was held that the
said witnesses have no regard for truth. The Supreme Court, however, laid
down the law in the following terms :
“Section 68, Indian Evidence Act requires an attesting witness to
be called as a witness to prove the due execution and attestation of
the will.”
29. In this case, it has been held that the execution of the will has
been proved by AW 2 as also AW 3 inasmuch as both of them stated that the
scribing of the document and execution of the will be Sundarmani Devi took
place in their presence and they have also put their respective signatures in the
will. Thus, AW 2 and AW 3 were the competent witnesses to prove the due
execution of the will in accordance with the provisions of Section 63(c) of the
Indian Succession Act read with Section 68 of the Indian Evidence Act.
30. AW 3 is the scribe. He stated that he scribed the said will at the
instance of the testatrix and read-over the contents thereof, thereafter the testatrix put her LTI after understanding the same. It, has thus to be held that the
said will has duly been proved by AWs. 2 and 3.
31. In Naresh Charan v. Paresh Charon, reported in AIR 1955 SC 363,
the Supreme Court held :
“When once it has been proved that a will has been executed
with due solemnities by a person of competent understanding and
apparently a free agent, the burden of proving that it was executed
under undue influence is on the party who alleges it.”
The Supreme Court further held :
“It cannot be laid down as matter of law that because the witnesses did not state in examination-in-chief that they signed the will
in the presence of the testator, there was no due attestation. It will
depend on the circumstances elicited in evidence whether the attesting
witnesses signed in the presence of the testator. This is a pure question of fact depending on appreciation of evidence.”
32. In Sitaram v. R.D. Gupta, reported in AIR 1.981 P & H 88, it has
been held that a scribe can be treated an attesting witness.
33. Further the question as to whether the will was duly proved or not
was not raised before the Court below. The learned trial Court considered the
facts and circumstances of the case and particularly the fact that after permission was obtained by the testatrix from the Deputy Commissioner of the provision of Section 46 of the Chotanagpur Tenancy Act, 1908 which the appellant
filed an objection and the aid objection having been rejected, the appellants
preferred an appeal against the said order but the said appeal was also
dismissed.
34. Taking thus all facts and circumstances into consideration, I am of
the view that it must be held that the will in question has duly been proved.
35. In this view of the matter, there is no merit in this appeal which is
accordingly dismissed. However, in the facts and circumstances of this case
there will be no order as to costs.