Back
2012 Supreme(Jhk) 1763
JHARKHAND HIGH COURT
P.P. BHATT. J.
Sanjay Kumar Raha @ Sanjeev Kumar Raha & Ors. - Appellants
Versus
Micheal Tigga & Ors. – Respondents
A.F.O.D. No.2 of 2004
Decided On : December 21, 2012
P.K. Prasad. Sr. Adv., V.K Prasad and Debolina Sen. for the appellants.
Lalit Kr. Lal. Amar Kr. Sinha. KK Ambastha. Md. Abdul Wahab and Sandeep Verma. for the respondents.
Headnote:
Indian Succession Act - Probate - Sections 270, 276 - Summary of Acts and Sections: The court discussed the applicability of the Indian Succession Act, particularly Sections 270 and 276, in a probate case. The judgment and order dated 05th May, 2003 passed by the learned Additional Judicial Commissioner Ranchi in Probate Case No. 94 of 1995, Title Suit No. 1 of 1998 was quashed and set aside.
Fact of the Case:
The applicant/appellant No.1 filed an application for the grant of Probate under Sections 270/276 of the Indian Succession Act on the basis of the Will dated 20th February, 1994 executed by Pouloush Oraon. The Will was contested by the objectors, who raised issues regarding the testator's religion and the applicability of the C.N.T. Act. The court examined the evidence presented by both parties, including documentary evidence and witness testimonies, to determine the testator's religion and the validity of the Will.
Finding of the Court:
The court found that the evidence presented by the appellants clearly established that Pouloush Oraon was a Christian and followed Christian customs and traditions. The court also found that the lower court had erred in its findings and had unnecessarily delved into irrelevant inquiries. The judgment and order of the lower court were deemed contrary to the evidence and material on record and were set aside.
Issues: The issues raised in the case included the maintainability of the application under Sections 270 and 276 of the Indian Succession Act, the applicability of Section 46 of the C.N.T. Act, the execution of the alleged Will, the proof of due execution and attestation, and the entitlement to grant of Probate with respect to the alleged Will.
Ratio Decidendi: The court held that the Indian Succession Act, particularly Sections 270 and 276, was applicable to the case and that the lower court had erred in its findings. The court also emphasized the need for the Probate Court to confine itself to the genuineness of the Will and not to delve into irrelevant inquiries. Additionally, the court found that the evidence presented by the appellants clearly established the testator's religion and customs, and that the lower court had failed to critically examine and scrutinize the documents on record.
Final Decision: The judgment and order dated 05th May, 2003 passed by the learned Additional Judicial Commissioner Ranchi in Probate Case No. 94 of 1995, Title Suit No. 1 of 1998 was quashed and set aside. The appeal was allowed.
P.P. Bhatt, J.-
Heard the learned counsel for the appellants and the respondents.
2. Perused the records and proceedings.
3. The present appeal is preferred by the appellant under Section 299 of the Indian Succession Act. 1925. being aggrieved and dissatisfied by the judgment and order dated 05th. May. 2003 passed by the Learned Additional Judicial Commissioner. Ranchi in Probate Case No. 94 of 1995. Title Suit No. 1 of 1998. whereby the application for grant of probate has been dismissed.
4. The brief facts of the case are as under :-
The applicant/appellant No.1 initially filed an application for the grant of Probate under Sections 270/276 of the Indian Succession Act on the basis of the Will dated 20th February. 1994 executed late Poulosh Oraon. Initially. it was registered as Probate Case No. 94 of 1995. According to the appellant the Will was duly executed by the deceased Testator and duly attested by the Attesting Witness including Shri Kaushal Kishore. Advocate. who had also typed the said Will. It is the case of the appellant that under the aforesaid Will the applicant/appellant No. 1 was appointed as an executor. The Testator-Pouloush Oraon died on 19.07.1994 at Gutua. Barkakana. where he was temporarily residing along with his daughter. the supporting appellant No.3. who was a Staff Nurse in C.C.L. Hospital at Barkakana. At the time of the death of the Testator, he has a fixed place of abode at village-Dibdih. P.S. Argora. District Ranchi.
5. According to the appellant. Pouloush Oraon. during his lifetime. had filed a Partition Suit No. 29 of 1975 against his brother Patrash Oraon and final decree was passed in the Partition Suit No. 29 of 1975 and Pouloush Oraon came in possession of his separate share in Execution Case No. 1 of 1984 of the Court of the then Sub-Judge. Ranchi. Patrash Tigga (Oraon). separated brother of Pouloush Oraon filed an objection objecting to the grant of Probate on the grounds stated in the objection petition. On the basis of said objection made by the objector. Probate Case was converted and registered as Title Suit No. I of 1998 in the Court of learned Judicial Commissioner. Ranchi. It appears from the record of the case that the applicant/ appellant altogether examined five witnesses :
(i) P.W. 1 Prem Lakra. Treasurer. G.E.L. Church. Dibdih who proved the death of Pouloush Oraon _@ Pouloush Tigga and the Death Certificate. issued by the Registrar. Birth & Death. Ranchi (Exhibit -1) and also the burials of the deceased (Exhibit-2/1).
(ii) P.W. 2-Kaushal Kishore. Advocate.
(iii) P.W. 3-Amrit Minz.
(Iv) P.W. 4-U.K. Mishra.
(v) P.W. 5 Sanjeev Kumar Raha, Attesting Witness.
6. On behalf of the supporting defendant Nos. 1 and 2 (appellant Nos. 2 and 3), the following witnesses were examined :
(i) D.W. 1-Mariyam Tigga.
(ii) D.W. 2-Sudarshan Kujur.
(iii) D.W. 3-Satish Chandra.
7. On behalf of the objectors/respondents as many as eight witnesses were examined. which are as follows :-
(i) D.W. 1-Sohan Tigga.
(ii) D.W. 2-Mangra Oraon @ Kujur Oraon.
(iii) D.W. 3-Churwa Orabn.
(iv) D.W. 4-Mahadev Tirkey.
(v) D.W. 5-Mangra Oraon.
(vi) D.W. 6-Abhiram Nayak.
(vii) D.W. 7-Surendra Prasad Tiwari.
(viii) D.W. 8-Michael Tigga.
8. So far as documentary evidence is concerned the plaintiffs/appellants have brought on record the following :-
(i) Exhibit-1 : the death certificate of Pouloush Oraon.
(ii) Exhibit-2 : the Certificate of Church filed in order to prove that Pouloush Oraon was a Christian.
(iii) Exhibit - 2/1: signature of the person granting Exhibit-2.
(iv) Exhibit-3 : Burial Certificate of Pouloush Oraon.
(v) Exhibit-3/1 : Signature of B. Lakra on Exhibit 3.
(vi) Exhibit-4 : will dated 20th February. 1994, alleged to have been executed by Pouloush Oraon.
(vii) Exhibit 4/1 : signature of Kaushal Kishore. Advocate alleged to have identified the thumb impression of Pouloush Oraon.
(viii) Exhibit 4/2: signature of Kaushal Kishore. Advocate as one of the Attesting Witness in the alleged Will.
(ix) Exhibit 4/3 : signature of Murti
