The probate court's jurisdiction is limited to determining the genuineness of the Will and does not extend to deciding questions of title or the validity of other documents.

I.P. Mukerji, J.

I have had the privilege of going through the draft judgment proposed to be delivered by my sister, Justice Amrita Sinha in this appeal. I am in full agreement with the conclusions reached by her ladyship. Nevertheless, I would like to add a few words.

2. A Will is the intention of a testator concerning his property to be carried into effect after his death. It is a declaration made formally and intended to have legal effect. Under Section 222 of the Indian Succession Act, 1925 probate shall be granted to the executor appointed by the Will. Under Section 232 letters of administration may be granted when the testator has executed a Will but has not appointed an executor. Under Section 211 of the said Act, 1925 the executor or administrator is the legal representative of the deceased person. Under Section 213 no right as executor or legatee can be established in any Court of justice unless the Court has granted probate of the Will under which the right is claimed or has granted letters of administration with the Will or with a copy of an authenticated copy of the Will annexed. Under Section 227 the probate of a Will when granted establishes the Will from the death of the testator or testatrix.

3. In our case Pulak Chowdhury, (he died on 23rd April, 2007 during the pendency of this appeal) son of Late Baikuntha Nath Sen made an application for grant of letters of administration in respect of the properties bequeathed to him covered by the Will of his mother, Kanarani Sen, executed on 8th March, 1977. An application for letters of administration but not probate had to be made because the Will did not appoint an executor. Obviously the issues framed in the application for the grant related to the due execution of the Will.

4. The learned Judge trying the case, in my opinion, very correctly, on analysis of the evidence came to the finding that the Will had been properly executed by the testatrix. That is all that the learned Judge had to do. He had no other declaration to make. He was not called upon to declare whether the properties bequeathed by the Will belonged to the testatrix or not at the time of her death. He only had to adjudge the genuineness of the Will and make the necessary declaration.

5. Now on 17th May, 1993 the testatrix allegedly made a gift of a part of the property covered by her said Will of 8th March, 1977 in favour of her daughter, Archana Mishra and grandson Debangsu Mishra. Kanarani Sen expired on 30th May, 1999.

6. Making a Will in respect of a property did not fetter the right of the testatrix to make a gift of a part of it in her lifetime. If the gift failed the property bequeathed would go wholly to the beneficiaries of the Will. If it succeeded that part of the said property of the testatrix which existed at the time of her death would go to them.

7. The issues framed by the court did not deal with the validity of the gift. The learned Judge for reasons unknown made the legality of the gift an issue before him. He declared in his judgment and decree dated 21st November, 2005 that since the Will according to him was genuine, the Deed of Gift had to be invalid and made the said declaration. Here he went clearly wrong. He was trying to adjudge the title of the testatrix with regard to the subject matter of the bequest. He could not do so. He only had to adjudge the genuineness of the Will. In trying to determine and declare the properties of the testatrix, he committed a very serious error.

8. Therefore, the decree passed by the learned Judge with regard to the alleged Deed of Gift is non-est and is set aside by this Court.

9. The declaratory decree that the appellants did not acquire any right, title or interest over the estate left by Kanarani is erroneous and is set aside.

10. The rest of the decree is affirmed.

11. The validity of the gift may be tested in a proper proceeding. In the facts and circumstances of the case, Section 14 of the Limitation Act, 1963 would apply to exclude the w