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2024 Supreme(Gau) 888
IN THE HIGH COURT OF GAUHATI, ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH
HON’BLE MR. JUSTICE DEVASHIS BARUAH, J.
Dipty Borthakur, W/o. Dulendra Nath Barthakur, D/o. Lt. Roma Kanta Sabhapandi - Petitioner
Versus
Aruna Chakraborty, W/o. Lt. Nani Kumar Chakraborty & Ors. - Respondents
Test.Cas. No. 2 of 2007
Decided On : 23-07-2024
For the Appellants :Mr. P.S. Deka, Senior Advocate, Ms. P. Bhattacharjee.
For the Respondents: Ms. S. Sarma.
IMPORTANT POINT
The probate court is not authorized to adjudicate on the title of properties bequeathed in a will; such matters must be resolved by a competent civil court.
Headnote:
PROBATE - WILL EXECUTION - Indian Succession Act, 1925 - Section 299 - The court discussed the provisions of the Indian Succession Act, 1925, particularly Section 299, which pertains to the appeal process in probate matters. The court emphasized that the probate court's role is limited to certifying the execution of the will and not to adjudicate on the title of the property bequeathed. The court interpreted that the probate court should not enter into disputes regarding property ownership, which should be resolved by a competent civil court. This interpretation influenced the court's decision to grant probate for the will in question, despite the objections raised by the respondents.
Fact of the Case:
The appeal was filed under Section 299 of the Indian Succession Act, 1925, challenging a judgment regarding the probate of a will executed by Roma Kanta Sarma Sabhapandit, which bequeathed property to his daughters. The respondents contested the will, claiming it was executed under suspicious circumstances and that the property belonged to their deceased relative.
Finding of the Court:
The court found that the will was executed voluntarily and in good health, without undue influence. It held that the probate court erred in deciding the title of the property, which should be determined by a civil court. The court granted probate for the will concerning the property bequeathed.
Issues: 1. Whether the will was duly executed by the testator without influence or duress. 2. Whether the house bequeathed belonged to the testator. 3. Whether the land was acquired by the government. 4. Whether the appellants were entitled to probate of the will.
Ratio Decidendi: The probate court's function is limited to verifying the execution of the will and not to resolve disputes over property title. The court reiterated that any title disputes should be addressed in a competent civil court, not in probate proceedings.
Final Decision: The appeal was allowed, and the court granted probate of the registered will dated 15.09.1990 in favor of the appellants concerning the properties bequeathed therein, while clarifying that the title of the property remains undecided.
JUDGMENT :
Devashis Baruah, J.
The instant appeal is filed under Section 299 of the Indian Succession Act, 1925 (for short, the Act of 1925) challenging the judgment dated 16.12.2006 passed in Title Suit (Probate) No.30/2001 by the learned District Judge, Jorhat.
2. At the outset, it is very relevant to take note of that the instant appeal was filed by two appellants. However, one appellant expired and accordingly her name was struck off vide an order passed by this Court on 24.08.2017.
3. The brief facts leading to the filing of the instant appeal are that one Roma Kanta Sarma Sabhapandit during his lifetime executed a will which was duly registered on 15.09.1990. In terms with the said will, the said Late Roma Kanta Sarma Sabhapandit (hereinafter to be referred to as the ‘testator’) had bequeathed an Assam-typed house bearing Jorhat Municipal Holding No.193, Ward No.1 of Jorhat Municipal Board, Jorhat consisting of 17 rooms, besides bathrooms, sanitary latrines, kitchen and Verandah along with a plot of land measuring 1 katha 19 ½ lechas covered by dag No.1225(old), 1391/2160 (new) included in PP No.204(old), 298(new) of Block No.6, Jorhat Town Mouza within the district of Jorhat with specific boundaries in favour of his two daughters, the appellants herein.
4. It is relevant to take note of that the said will was executed in presence of two attesting witnesses, one Sri Harendra Nath Sarma and the other Sri Tapan Borthakur. The said testator expired on 13.09.1995 at the age of 84 years. Pursuant thereto, a probate proceedings was initiated being Probate Case No.29/2000 seeking grant of probate in favour of the applicants, who are the appellants herein. In the said probate proceedings, the respondents herein were made parties.
5. At this stage, it is relevant to take note of that the respondents herein are the wife and the daughter of one Nani Kumar Chakraborty (since deceased), who is the brother of the appellants herein. The respondents upon appearing objected to the grant of probate by filing written objection by raising objection that the said will was executed under suspicious circumstances and the Assam-typed house which was a part of the property bequeathed in favour of the appellants was constructed by Late Nani Kumar Chakraborty during his lifetime. On the basis of the said objection so made, the said probate proceedings was converted into a suit which was registered and numbered as Title Suit (Probate) Case No.30/2001.
6. At this stage, it is very relevant to take note of that a perusal of the probate application reveals that the said probate application was filed and was duly verified by the two attesting witnesses, namely, Sri Harendra Nath Sarma and Sri Tapan Borthakur, who claimed to be present when the will, in question, was executed by the testator. On the basis of the objection so filed, four issues were framed in the form of points of determination which were :
(1). Whether the will (Exhibit-A) was duly executed by the testator Roma Kanta Sarma Sabhapandit in his good health and mental condition without any influence or duress under the petitioners?
(2). Whether the house standing on the land as included in the will, in question and described under the schedule of the Probate petition belonged to said Nani Chakraborty being the husband of the opposite party No.1 and the father of the opposite party No.2, which the opposite party No.1 owns after the death of her husband and after the death of the said testator being the father of deceased Nani Chakraborty?
(3). Whether the two lessas of the land included in the said will were acquired by the Government as per the order dated 09.07.1970 in the Land Acquisition Case No.109/08/69?
(4). Whether the petitioners are entitled to the grant of a probate of the said will?
7. On behalf of the appellants, who were the applicants to the said probate application, five witnesses were examined including the applicants. The other three witnesses included the two attesting witnesses and o
