{"id":168468,"date":"1991-04-30T00:00:00","date_gmt":"1991-04-29T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/udeshwar-singh-and-anr-vs-runa-devi-and-ors-on-30-april-1991"},"modified":"2015-08-28T16:41:02","modified_gmt":"2015-08-28T11:11:02","slug":"udeshwar-singh-and-anr-vs-runa-devi-and-ors-on-30-april-1991","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/udeshwar-singh-and-anr-vs-runa-devi-and-ors-on-30-april-1991","title":{"rendered":"Udeshwar Singh And Anr. vs Runa Devi And Ors. on 30 April, 1991"},"content":{"rendered":"
Patna High Court<\/div>\n
Udeshwar Singh And Anr. vs Runa Devi And Ors. on 30 April, 1991<\/div>\n
Equivalent citations: 1992 (40) BLJR 1040, II (1992) DMC 536<\/div>\n
Author: S Sinha<\/div>\n
Bench: S Sinha<\/div>\n<\/p>\n
<\/pre>\n
JUDGMENT<\/p>\n
S.B. Sinha, J.<\/p>\n
1. This first appeal Under Section 299 of the Indian
\nSuccession Act arises out of a judgment dated 29th January, 1986 passed by
\nShri S. Narayan in Probate Case No. 1 of 1982, whereby and whetherunder
\nthe said learned Court allowed an application filed by the respondents for
\ngrant of Letters of Administration in relation to the will dated 14-9-1973
\nexecuted by Mst. Sundarmani Devi.\n<\/p>\n
2. The fact of the matter lies in a very narrow compass.\n<\/p>\n
3. Mst. Sundarmani Devi executed a registered will dated 14-9-1973.
\nShe died on 23-12-1981 at village Sikki Kala. According to the respondents,
\nMst. Sundarmani Devi had great love and affection for the petitioner, as she
\nhad rendered services to her husband. She out of her love and affection and
\nin view of the services rendered, executed and registered the aforementioned
\nwill in her favour On the other hand, the case of the appellants was that the
\ntestatrix had no authority to execute the said will. According to the appellants,
\nSundarmani Devi being the wife of Lalji Singh, had no concern with the lands
\nunder the will nor she had any interest therein.\n<\/p>\n
4. It appears that prior to execution of the said will, Sundarmani Devi
\nhad filed an application Under Section 46 of the Chotanagpur Tenancy Act
\nfor grant of permission to execute the said will and therein the appellants were
\n heard and by an order dated 11-9-1973, permission was duly accorded to
\nSundarmani Devi to execute the said will in a case bearing No. 3 of 1973-74
\nand the aforementioned will was executed in terms of the aforementioned
\norder.\n<\/p>\n
5. An appeal was preferred by the appellants against the said order
\nbut the said appeal was dismissed by the Additional Collector, Palamau in
\nterms of his order dated 10-10-1974.\n<\/p>\n
6. The learned Court below found that the will was genuine and the
\nsame was validly executed.\n<\/p>\n
7. Mr. K.K. Sahay, the learned Counsel appearing on behalf of the
\nappellants submitted that the parties are cheros by caste and thus, they are
\ngoverned in the matter of inheritance and succession by their own customary
\nlaws and not under the provisions of Hindu Succession Act, 1956.\n<\/p>\n
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
\nmatter of inheritance and succession; but the provisions Of the Hindu Succession
\nAct, 1956 having no application in relation to the members of the Scheduled
\nTribe, Sundarmani Devi, under the old Hindu Law had merely a limited interest
\nin the property in question and in that view of the matter too she was not
\ncompetent to execute the will in question.\n<\/p>\n
The learned Counsel, in this connection, has relied upon a decision in
\nMohari Mahto V. Mokaram Mahto, reported in AIR 1963 Pat 466. In Chotrai
\nManjhi v. Rupi Manjhian, reported in 1990 (1) BLJR 501 and in Daudwa Uraon
\nv. Karueluous Urqbn, reported in 1988 PLJR 603.\n<\/p>\n
9. The learned Counsel further submitted that it was obligatory on
\nthe part of the learned Court below to consider this aspect of the matter and it
\nshould have come to the conclusion that the aforementioned Sundarmani Devi
\nhad no authority to execute the will in question as she was a limited owner.
\nIn this connection, reliance has been placed in Jagdeo Singh v. Mt.
\nRajaKuer, reported in AIR 1927 Pat 262 and in Shambhu Dayal v. Basudeo
\nSahai, reported in AIR 1970 Alld. 525.\n<\/p>\n
10. Mr. Sahay further submitted that the will in question (Ext. 1) was
\nnot legally proved inasmuch as in doing the same, the provisions of Section 68
\nof the Evidence Act were not complied with.\n<\/p>\n
The learned Counsel, in this connection, relied upon Girja Dut. v.
\nGangotri Datt,<\/a> reported in AIR 1955 SC 346.\n<\/p>\n
11. Mr. P.N. Sahu, the learned Counsel appearing on behalf of the
\nrespondents, on the other baud, submitted that in view of the fact that the
\nrespondents obtained prior permission of the Deputy Commissioner for executing the will, it must be held that the said will was genuine. It was further
\nsubmitted that the will in question has validly been proved on behalf of the
\nrespondents.\n<\/p>\n
The learned Counsel, in this connection, relied on Jai Narain v. Kedar
\nNath,<\/a> reported in AIR 1956 SC 359, in Smt. Jaswant Kaur v. Smt Amrit Kaur<\/a>
\nreported in AIR 1977 SC 74 and in Krishna Kumar Sinha v. The Kayastha
\nPathshala, reported in AIR 1966 Alld. 570.\n<\/p>\n
12. It was, further submitted that in this case the scribe himself was
\nan attesting witness and thus he was competent to prove the will In this
\nconnection the learned Counsel relied upon Sita Ram v. R.D. Gupta, reported
\nin AIR 1981 P&H 83.\n<\/p>\n
13. Mr. Sahu next contended that in any event as the appellants did
\nnot question the proof of the will before the Court below; he should not be
\npermitted to do so for the first time before the appellate Court Mr. Sahu
\nin this connection, relied upon Krishna Kumar Sinha v. The Kayastha Pathshala,
\nreported in AIR 1967 All 570.\n<\/p>\n
14. The learned Counsel further submitted that the scope of an enquiry
\nin 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
\ntitle cannot be gone into. The learned Counsel, in this connection, has relied uoon a Division
\n Bench decision of this Court in Rajeshwar Misser v. Sukhdeo Missir, reported
\nin AIR’ 1947 Pat 449; in Dukhu Mahato v. Shridhar Mahato reoorted in 1989
\nBLT 534 and in Jagojoti v. Barauchi, reported in AIR 1970 Orissa 28.\n<\/p>\n
15. In view of the aforementioned rival contentions the following
\nquestions arise for consideration in this appeal:\n<\/p>\n
(1) Whether the learned Court below could have enquired into the<\/p>\n
(2) Whether the will in question has legally been proved ?\n<\/p>\n
16. Re Question (1) :\n<\/p>\n
Section 278 of the Indian Succession Act reads are follows :-\n<\/p>\n
278. “Petition for letter of administration-(1) Application for letters of
\nadministration shall be made by petition distinctly written as aforesaid and stating<\/p>\n
(a) the time and place of the deceased’s death;\n<\/p>\n
(b) the family or other relatives of the deceased and their respective
\nresidences;\n<\/p>\n
(c) the right which the petitioner claims;\n<\/p>\n
(d) the amount of assets which are likely to come to the petitioner’s
\nhands;\n<\/p>\n
(e) when the application is to the District Judge that the deceased
\nat time of his death had a fixed place of abode, or had some
\nproperty, situate within the jurisdiction of the judge; and<\/p>\n
(f) When the application is to a District Delegate that the deceased
\nat the time of his death had a fixed place of abode, within the
\njurisdiction of such Delegate.\n<\/p>\n
(2) Where the application is to the District Judge and any portion
\nof the assets likely to come to the petitioner’s hand is situate in
\nanother State, the petition shall further state the amount of such
\nassets 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
\nan application will be entertained if the same has been filed in compliance with
\nthe requirements mentioned therein.\n<\/p>\n
17. In Rajeshwar Missir v. Sukhdeo Missir,<\/a> reported in AIR 1947 Pat. 449, a Division Bench of this Court held as follows :
\n “The application was opposed by respondent Sukhdeo Missir
\nwho is the son of Padarath Missir another brother of Hazari Missir.
\nThe document in question purports to make a disposition of the
\nproperty of Sarwan and Balgovind Missir in favour of six sons of
\nHazari. Sarwan and Balgobind died some time in the year 1928. The
\npresent application was filed on 13-9-1940, by the four applicants, the
\nother two sons of Hazari Missir having died in the mean time. The
\napplication was opposed on the grounds, firstly, that the document is
\nnot a genuine document executed by Sarwan and Balgobind Misser,
\nsecondly, that it is not a will at all but is a deed of partition, thirdly
\nthat, at the time of the execution of the document, they were not in a
\nsound disposing state of mind, and, fourthly, that, at the time of the
\nexecution of the alleged will, they were joint with Padarath Missir
\nand as such had no right to execute the will. In an application for
\nprobate, the Court has no jurisdiction to enquire into the nature of the
\nrights of the testator in the property covered by the will and so, the last
\npoint was rightly ignored by the learned Additional District Judge, and
\nhe has considered only whether the document was in fact executed by
\nthe alleged testators, whether, at the time of the execution of the
\ndocument, they were in a sound disposing state of mind and whether
\nthe applicants are entitled to probate. He decided the first two points
\nin favour of the applicants but, on the third point, he has decided
\nagainst them, holding that the document in question is not a will at
\nall. Hence, the present appeal.” (Underlining is mine)<\/p>\n
18. In Mrs. Hem Nolni Judah v. Mrs. Isolyne Sarojbashi Bose,<\/a> reported in AIR.1962 SC 1471, the Supreme Court held that the questions of title are
\nnot decided in proceeding for grant of probate or letters of administration. It
\nwas further held whatever, therefore, might have happened in those proceedings,
\ncould not establish the title. In Jagojoti v. Bararuchi, reported in AIR 1970
\nOrissa 28, the aforementioned decision has been followed.
\nReference, in this connection, may also be made to Chintaman v. Ram
\nChandra, reported in ILR 34 Bom. 589; Kashi v. Govinda, reported in 1952
\nCalcutta Weekly Notes 914 and in Panna Banerjee v. Kalikinkor, reported in
\nAIR 1974 Cal. 126.\n<\/p>\n
19. The effect of grant of probate, therefore, is that it does not prove
\nthe executrix’s title of the property involved in the application for probate as
\nderived from the deceased testator, nor does it prove that such property exists
\nin facts. In an application for grant of probate, the Court has no jurisdiction
\nto enquire into the nature of the rights of the testator in the property covered
\nby the will. The question as to whether the testatrix Sundarmani Devi has any
\nright in relation to the property in question or not, thus could not have been
\ngone into by the learned Court below.\n<\/p>\n
20. In Dukhu Mahata Shridhar Mahata, reported in 1989 BLT 534,
\nthis Court has held :\n<\/p>\n
 “It appears that the Court below had gone into the question of
\ntitle which was wholly outside the scope of the probate Court. All
\nthat it was required to record was whether it was genuine and valid.
\nFor that firstly it was required to record a finding whether the will
\nwas executed keeping in view the provision of Section 63 of the Act
\nand in the circumstances of this case proved in terms of Section 69 of
\nthe Evidence Act. Since there has been non-compliance of Section 69
\nof the Evidence Act, i.e. the will has not been proved in accordance
\nwith law, letters of administration could not have been granted in
\nfavour of the propounders.\n<\/p>\n
21. In Jagdeo Singh v. Mt. Raja Kuer, reported in AIR 1927 Pat. 262,
\nit was held that under the Hindu Law, a legatee from a widow does not derive
\nany interest. In that case the question which fell for consideration before the
\nDivision Bench was as to whether the legatee under the will derived any interest
\nm the property or not and in that context it was held that the legatee of a
\nHindu widow did not derive any interest whatsoever in the property. In
\nShambhu Dayal v. Basudeo Sahai, reported in AIR 1970 Alld 525, the decision
\nof the Patna High Court aforementioned and other decisions have been followed
\nby a Full Bench of the Allahabad High Court.\n<\/p>\n
22. In this case, as noticed hereinbefore, this Court is not concerned
\nwith the title of Sundarmani Devi in the property nor this Court is concerned
\nwith as to whether by reason of the will, the opposite party has derived any
\nright, 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.\n<\/p>\n
23. In this view of the matter, in my opinion, the submission of Mr.
\nSahay cannot be accepted.\n<\/p>\n
24. Re : Question (2):\n<\/p>\n
The word “attested” has been defined in Section 3 of the Transfer of
\nProperty Act in the following term :\n<\/p>\n
 “Attested”-“Attested in relation to an instrument, means and
\nshall 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
\nthe instrument, or has been some other person sign the instrument in
\nthe presence and by the direction of the executant, or has received
\nfrom the executant a personal acknowledgment of his signature or
\nmark, or of the signature of such other person, and each of whom
\nhas signed the instrument in the presence of the executant; but it shall
\nnot be necessary that more than one of such witnesses shall have
\nbeen present at the same time, and no particular form of attestation
\nshall be necessary.”\n<\/p>\n
Section 68 of the Indian Evidence Act, 1972 reads as follows:\n<\/p>\n
68. “Proof of execution of document required by law to be
\nattested-If a document is required by law to be attested, it shall not
\nbe used as evidence until one attesting witness at least has been called
\nfor the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of
\ngiving evidence :\n<\/p>\n
 Provided that it shall not be necessary to call an attesting witness
\nin proof of the execution of any document, not being a will, which
\nhas been registered in accordance with the provisions of the Indian
\nRegistration Act, 1908 (16 of 1908), unless its execution by the
\nperson by whom it purports to have been executed is specifically
\ndefined.”\n<\/p>\n
Section 63(c) of the Indian Succession Act reads as follows:
\n “The will shall be attested by two or more witnesses each of
\nwhom has been the testator sign or affix his mark to the will or has
\nseen some other persons sign the will, in the presence and by the
\ndirection of the testator, or has received from the testator a personal
\nacknowledgment of his signature or mark, or the signature of such
\nother person; and each of the witnesses shall sign the will in the
\npresence of the testator, but it shall not be necessary that more than
\none witness be present at the same time, and no particular form of
\nattestation shall be necessary.”\n<\/p>\n
25. In Beni Chand v. Kamla Kunwar,<\/a> reported in AIR 1977 SC 63 it
\nwas held :\n<\/p>\n
 “Section 68 of the Evidence Act deals with proof of the execution of documents required by law to be attested. It provides that
\nsuch documents shall not be used as evidence until at least one attesting witness has been called to prove the execution, if there be an
\nattesting witness alive and subject to the process of the Court and
\ncapable of giving evidence. Since by Section 63 of the Succession
\nAct, 1925 a will has to be attested by two more witnesses, Section 68
\nof the Evidence Act would come into play and therefore it was
\nincumbent on the propounder of the will to examine an attesting
\nwitness to prove due execution of the will. But this argument overlooks that Dwijendra Nigam is himself one of the three persons who
\nmade their signatures below the. thumb impression of Jaggo Bai.
\nNone of the three is described in the will as an attesting witness but
\nsuch labelling is by no statute necessary and the mere description of a
\nsignatory to a testamentary document as an attesting witness cannot
\ntake place of evidence showing due execution of the document. By
\nattestation is meant the signing of a document to signify that the
\nattestator is a witness to the execution of the document. And by
\nSection 63(c) of the Succession Act, an attesting witness is one who
\nsigns the document in the presence of the executant after seeing the
\nexecution of the document or after receiving a personal acknowledgment from the executant as regards the execution of the document.”\n<\/p>\n
26. In Jaswant Kaur v. Amrit Kaur,<\/a> reported in AIR 1977 SC 74, the
\nSupreme Court followed its earlier decision in H. Venkatachala Iyengar v. B.N.
\nThimmajamma,<\/a> reported in AIR 1959 SC 443, wherein the propositions relating
\nto the nature and standard of the evidence required to prove a will, were laid
\ndown.\n<\/p>\n
27. AW 2 was the Sarpanch of the Sikki Kala Gram Panchayat, he
\nhappened to be a close neighbourer of the testatrix. He stated that AW 3
\nscribed the will at the instance of Sundarmani Devi and the same was read over
\nand explained to her whereupon she with conscious and clear understanding of
\nthe recitals of the deed, put her LTI thereupon. He also stated that after
\nSundarmani 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
\nwas also a witness to the execution of the will by Sundarmani Devi and who
\nhad known the testatrix from before.\n<\/p>\n
28. In Girja Dutt v. Gangotri Dutt, reported in AIR 1955 SC 346 upon
\nwhich reliance has been placed by Mr. K.K. Sahay the Supreme Court did not
\nrely upon the oral testimony of the attesting witnesses as it was held that the
\nsaid witnesses have no regard for truth. The Supreme Court, however, laid
\ndown the law in the following terms :\n<\/p>\n
 “Section 68, Indian Evidence Act requires an attesting witness to
\nbe called as a witness to prove the due execution and attestation of
\nthe will.”\n<\/p>\n
29. In this case, it has been held that the execution of the will has
\nbeen proved by AW 2 as also AW 3 inasmuch as both of them stated that the
\nscribing of the document and execution of the will be Sundarmani Devi took
\nplace in their presence and they have also put their respective signatures in the
\nwill. Thus, AW 2 and AW 3 were the competent witnesses to prove the due
\nexecution of the will in accordance with the provisions of Section 63(c) of the
\nIndian Succession Act read with Section 68 of the Indian Evidence Act.\n<\/p>\n
30. AW 3 is the scribe. He stated that he scribed the said will at the
\ninstance 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
\nsaid will has duly been proved by AWs. 2 and 3.\n<\/p>\n
31. In Naresh Charan v. Paresh Charon, reported in AIR 1955 SC 363,
\nthe Supreme Court held :\n<\/p>\n
 “When once it has been proved that a will has been executed
\nwith due solemnities by a person of competent understanding and
\napparently a free agent, the burden of proving that it was executed
\nunder undue influence is on the party who alleges it.”\n<\/p>\n
The Supreme Court further held :\n<\/p>\n
 “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
\nin the presence of the testator, there was no due attestation. It will
\ndepend on the circumstances elicited in evidence whether the attesting
\nwitnesses signed in the presence of the testator. This is a pure question of fact depending on appreciation of evidence.”\n<\/p>\n
32. In Sitaram v. R.D. Gupta, reported in AIR 1.981 P & H 88, it has
\nbeen held that a scribe can be treated an attesting witness.\n<\/p>\n
33. Further the question as to whether the will was duly proved or not
\nwas not raised before the Court below. The learned trial Court considered the
\nfacts 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
\nfiled an objection and the aid objection having been rejected, the appellants
\npreferred an appeal against the said order but the said appeal was also
\ndismissed.\n<\/p>\n
34. Taking thus all facts and circumstances into consideration, I am of
\nthe view that it must be held that the will in question has duly been proved.\n<\/p>\n
35. In this view of the matter, there is no merit in this appeal which is
\naccordingly dismissed. However, in the facts and circumstances of this case
\nthere will be no order as to costs.<\/p>\n","protected":false},"excerpt":{"rendered":"
Patna High Court Udeshwar Singh And Anr. vs Runa Devi And Ors. on 30 April, 1991 Equivalent citations: 1992 (40) BLJR 1040, II (1992) DMC 536 Author: S Sinha Bench: S Sinha JUDGMENT S.B. Sinha, J. 1. This first appeal Under Section 299 of the Indian Succession Act arises out of a judgment dated 29th […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,26],"tags":[],"class_list":["post-168468","post","type-post","status-publish","format-standard","hentry","category-high-court","category-patna-high-court"],"yoast_head":"\nUdeshwar Singh And Anr. vs Runa Devi And Ors. on 30 April, 1991 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/udeshwar-singh-and-anr-vs-runa-devi-and-ors-on-30-april-1991\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Udeshwar Singh And Anr. vs Runa Devi And Ors. on 30 April, 1991 - 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