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2012 Supreme(Gau) 1100
IN THE HIGH COURT OF GAUHATI (SHILLONG BENCH)
BROJENDRA PRASAD KATAKEY, J.
Ka Riverretta Diengdoh – Appellants
Vs.
Ka Trially Sararymbai & Anr. – Respondent
RSA No. 4 (SH) of 2011
Decided On: 14.09.2012
Advocate Appeared
For Appellant/Petitioner/Plaintiff: Mr. T.T. Diengdoh, Mr. K. Baruah and Ms. M.F. Diengdoh
For Respondents/Defendant:Mr. H.S. Thangkhiew, Sr. Advocate, Mr. P. Nongbri, Mr. L. Khyriem, Mr. N. Mozika, Mr. L. Byrsat, Ms. N.G. Shylla and Ms. A. Thangkhiew
Headnote:
Meghalaya Succession of Self Acquired Property (Special Provision) Act, 1984 - Indian Succession Act, 1925 - Section 299 - Probate of Will executed - Whether application for grant of probate filed by petitioner is maintainable in law - Appeal directed against judgment and order application filed by appellant for probate of Will executed by appellants father - Appellant filed an application seeking probate of a Will executed by her father on in Court of learned Judge District Council Court which was registered and numbered as Probate Misc. Case contending that by said Will her father bequeathed property belonging to him in her favor in presence of witnesses and when he was in disposition state of mind said proceeding was contested by respondents by filing joint written objection stating that the Will was obtained by petitioner by fraud and misrepresentation -Held, Apex Court cannot be gone into by a Probate Court in a probate proceeding even though Act authorizes a to dispose of only self-acquired property by a Will - Question of title over property bequeathed or whether it is was self-acquired property or not has to be gone into in an appropriate suit and not in a probate proceeding such proceeding being in nature of an inquiry only relating genuineness and due execution of Will - Contention of learned Sr. counsel for respondents that since question of title over property has already been gone into by a Probate Court same also being a Civil Court such finding relating to title over the property may not be disturbed in appeal even though Probate Court as such cannot go into the question of title over property cannot be accepted in view of fact that Probate Court had no jurisdiction to go into such question and hence that part of decree relating to question of title passed by Probate Court is a nullity and is honest in eye of law - Appeal allowed
B.P. Katakey, J.
1. This appeal under Section 299 of the Indian Succession Act, 1925 (in short the 1925 Act), is directed against the judgment and order dated 22.09.2008 passed by the learned Judge, District Council Court, Shillong, in Probate Misc. Case No. 1/2000, rejecting the application filed by the appellant for probate of the Will executed by the appellant's father. The appellant filed an application seeking probate of a Will executed by her father on 06.02.1999, in the Court of learned Judge, District Council Court, Shillong, which was registered and numbered as Probate Misc. Case NO. 1/2000, contending inter alia that by the said Will her father bequeathed the property belonging to him in her favour, in presence of the witnesses and when he was in the disposition state of mind. The said proceeding was contested by the respondents by filing joint written objection stating inter alia that the Will was obtained by the petitioner by fraud and misrepresentation of facts. It has also been pleaded that the testator did not have any right whatsoever to execute the Will as the property sought to be bequeathed is an ancestral property of Rymbai clan of Saitsohpen descended from the womb of late Ka Bei Rymbai and not the self acquired property of the testator and as such he does not have the right to bequeath the property by means of a Will. It has also been contended that late H.C. Rymbai, the father of the appellant who was merely managing and looking after the property on behalf of the Rymbai clan being the surviving elder uncle, has converted the patta in his name fraudulently without the consent of Rymbai clan, thereby converting the ancestral property as his own, which is absolutely illegal and against the Khasi custom of inheritance.
2. On the basis of the pleadings, the Court has framed the following issues:-
(i) Whether the application for grant of probate filed by the petitioner is maintainable in law?
(ii) Whether this Court has jurisdiction to grant the probate prayed for?
(iii) Whether late Cheselington; Rymbai executed a Will dt. 6.2.1999 in respect of the land and houses in favour of the petitioner? If so whether he is qualified and competent to do so?
(iv) Whether the will was obtained by the petitioner by fraud and misrepresentation of facts?
(v) Whether the petitioner is the qualified executor of the will dt. 6.2.1999?
(vi) Whether the testator has right or competent to execute the will of the property sought for to be bequeathed?
(vii) Whether the said property was first owned by late Ka Bei Rymbai?
(viii) Whether the property included in the said will is the ancestral property of the Rymbai clan of Saisohpen?
(ix) Whether the original patta of the property in dispute was in the name of (L) Ka Wesina Rymbai and after her death the said property was looked after and managed by late U. Woslington Rymbai?
(x) Whether late U. Cheselington Rymbai can convert the ancestral property to be his own property according to khasi custom of inheritance?
(xi) What relief or reliefs the parties are entitled to?
3. The appellant in support of her claim for grant of the probate while examined 6(six) witnesses including herself and proved a number of documents including the Will (Ext.-1), the respondents examined 3(three) witnesses including the respondent No. 1 herself and also proved a number of documents.
4. The learned Judge, District Council Court, though answered the issue No. 3 in favour of the appellant by holding that the valid execution of the Will could be proved by the appellant, answered the issue Nos. 7 and 8 against the appellant by holding that the property bequeathed by the father of the appellant being not his self acquired property but the ancestral property of Rymbai clan of Saitsohpen, the appellant is not entitled to probate of the Will. The issue Nos. 9 and 10 were also decided against the appellant. Consequently the learned Judge has rejected the application seeking probate of the Will. Hence the present appeal.
