The validity of a Will under Section 63 of the Indian Succession Act requires a full trial if disputed facts exist, rather than being decided as a preliminary issue.

JUDGMENT :

The present petition has been filed for the following reliefs:-

"a. For setting aside the order dated 18.01.2022 passed by the learned Additional District and Sessions Judge, XXI, Patna in Title Suit No.39 of 2019, whereby and whereunder Probate Case No.58 of 2018 converted into Title Suit No.39 of 2019 has been dismissed summarily on the basis of preliminary issue without correctly appreciating the law and the facts of the case and without application of judicious mind by the learned court below.

b. For setting aside the order dated 29.11.2021 passed by learned Additional District and Sessions Judge XXI, Patna in Title Suit No.39 of 2019 whereby and whereunder additional issue no.1(a) has been framed and inserted after original issue no.1 framed on 25.11.2019 and further it has been directed that the said issue no.1(a) be treated as preliminary issue and the parties may come prepared for hearing on the same.

c. For issuance of appropriate order directing the court below to properly adjudicate Probate Case No.58 of 2018 converted into title Suit No.39 of 2019 filed by the petitioner after full-fledged trial in consonance with the principles of natural justice."

2. The facts of this case, as stated in the writ petition, are that the father of the petitioner late Ram Briksh Singh executed a registered Will on 04.03.2015 in favour of his son i.e. the petitioner. The father of the petitioner died on 15.08.2018 leaving behind his five sons and two daughters. As per the Will, the immovable property bequeathed to the petitioner is the self acquired property of his father, which came in exclusive title and possession of the testator after deed of gift executed in the year 1951 by the grandfather of the petitioner. Earlier, in the year 1951, the grand-father of the petitioner executed a gift deed in favour of his two sons namely Ram Briksh Singh and Ram Sagar Singh in respect to several plots including Plot No.167, Khata No.511, Thana No.14, Tauzi No.1501 situated at Mauza Pahari measuring 3 kattha and 15 dhur but Ram Sagar Singh died issue-less and therefore, the father of the petitioner became the owner of the property of Ram Sagar Singh.

3. The petitioner, after death of his father, filed Probate Case No.57 of 2018 under Section 276 of the Indian Succession Act, 1925 for grant of probate certificate in his favour by impleading all the brothers and sisters of the petitioner as parties. In the said probate case, the elder brother of the petitioner namely, Ram Chandra Prasad Singh filed his objection and sought a month's time to file his written objection. However, two brothers and two sisters of the petitioner supported the case of the petitioner by filing their show-cause and they have stated that the Will was executed well within their knowledge.

4. On 11.06.2019, the Court below directed to convert the probate case into a testamentary case in view of the objection filed by the elder brother of the petitioner. On 28.08.2019, the elder brother of the petitioner filed his written statement in the newly constituted Title Suit No.39 of 2019, in which no objection with regard to non-compliance of section 63(c) of the Indian Succession Act, 1925 was taken. As the defendant no.5 was not appearing in the probate case in spite of repeated notice, the Court below vide order dated 15.11.2019 decided to proceed ex-parte against the non-appearing defendants. Thereafter, the Court below after hearing the parties vide order dated 25.11.2019 framed five issues for consideration, which reads as under:-

1. Whether the suit as framed is maintainable ?

2. Whether the plaintiff has valid cause of action for the Suit ?

3. Whether the plaintiff has paid sufficient court fee or not ?

4. Whether the registered will dated 04.03.2015, executed by the deceased Ram Briksh Singh in favour of the plaintiff is genuine, legal and valid or not ?

5. Whether the plaintiff is entitled to grant probate certificate in his favour on the basis of the Will dated 04.03.2015 e