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2024 Supreme(Jhk) 619
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Shree Chandrashekhar, A.C.J., Anubha Rawat Choudhary, J.
Jitendra Deo Sinha – Appellant
Versus
Shambhu Nath Sahay and Others – Respondents
LPA No. 552 of 2023
Decided On : 17-01-2024
Advocate Appeared:
For the Appellant : Sushant Kumar Sinha
IMPORTANT POINT
Intra-court appeals against orders of a Single Judge under the Indian Succession Act are not maintainable post amendment of section 100A of CPC.
Headnote:
(A) Indian Succession Act, 1925 - Section 276 - Letters Patent Appeal - Appeal against dismissal of probate application based on purported Will - Delay of 79 days condoned - Court finds no merit in appeal as execution of Will not explained and lacks compliance with statutory requirements. (Paras 1-6, 16-18)
(B) Maintainability of Appeal - Court reiterates that intra-court appeal against order of Single Judge under section 299 of the Indian Succession Act is not maintainable post amendment of section 100A of CPC. (Paras 7-14)
Facts of the case:
The appellant sought probate for a Will executed in 1979, which was dismissed by the lower court due to unexplained delay and lack of compliance with statutory provisions.
Findings of Court:
The appeal was dismissed as it was found not maintainable under the current legal framework.
Issues: The main issue was the maintainability of the appeal against the dismissal of the probate application and the execution of the Will.
Ratio Decidendi: The court held that the appeal was not maintainable due to the lack of statutory compliance in the execution of the Will and the binding precedent regarding intra-court appeals.
Result: Appeal dismissed.
JUDGMENT :
Anubha Rawat Choudhary, J.
I.A. No. 9290 of 2023
1. The learned counsel for the appellant submits that an interlocutory application under section 5 of the Limitation Act has been filed seeking condonation of delay of 79 days in preferring the present appeal.
2. We are satisfied with the cause shown by the appellant in this application and, therefore, the delay of 79 days in preferring this Letters Patent Appeal is hereby condoned.
3. I.A. No. 9290 of 2023 is, accordingly, allowed.
LPA No. 552 of 2023
4. The present appeal has been filed against the order dated 1st May 2023 passed in MA No. 337 of 2016 by the learned Single Judge who has been pleased to dismiss the appeal filed against the judgment dated 31st March 2016 passed in Probate Case No. 4 of 2003 by the learned District and Additional Sessions Judge-XIV Hazaribag. The probate case was filed by the appellant for grant of probate in his favor on the basis of the purported Will dated 2nd August 1979 said to have been executed by one Parmeshwar Dayal in his favor.
5. The learned District and Additional Sessions Judge-XIV Hazaribag dismissed the Probate Case No. 4 of 2003 and the operative portion of the judgment is quoted as under:
“11. Having regards to the entire fact and circumstances as narrated above, I am of the convinced view that the petition filed by petitioner under section 276 of the Indian Succession Act 1925 is not fit to be allowed in his favour. Consequently, I refused grant the probate of WILL dated 2nd August, 1979 executed by Parmeshwar Dayal in favour of Petitioner Jitendra Deo Sinha with respect to the property as disclosed in the aforesaid WILL and also the property fully described in Schedule of this petition. Accordingly, Probate case is hereby dismissed.”
6. The learned single Judge has recorded the following findings in paragraph no. 16 onwards which are quoted as under:
“16. Admittedly the delay of 25 years has not been explained and execution of will is also silent and not explained in the Probate Case. The manner in which the Will was executed is alien to any of the provisions of the Indian Succession Act. Since the requirements of provisions of Section 63 and 68 are lacking therefore, rightly the Court below considering the aforesaid aspects, has restrained itself from allowing the petition and has dismissed the Probate Case.
17. The contention of learned counsel appearing for the appellant and the reasons assigned that the natural heirs were not taking care of the testator and as such the will was executed in favour of the appellant debaring the legal heirs, is not at all acceptable to this Court. The Judgment relied upon by the appellant is not at all applicable in the instant case.
18. In view of the above findings and discussions and more particularly in view of the above oral & documentary evidences discussed here-in-above, Section 63 of the Indian Evidence Act as well as the Judgments relied upon by the parties, this Court is in full agreement with the findings of the Court below and as such I find no merits in the instant appeal. This appeal is accordingly dismissed.......”
7. The learned counsel for the appellant has submitted that an office objection has been raised regarding the maintainability of the present appeal and reference has been made to the order dated 16th March 2012 passed in LPA No. 208 of 2011 by the Division Bench holding that an appeal does not lie against the judgment passed in Miscellaneous Appeal arising out of adjudication under section 299 of the Indian Succession Act. The learned counsel has fairly referred to the order dated 4th September 2023 passed in LPA No. 422 of 2022 wherein a similar view has been taken by this Court by referring to the order passed in LPA No. 208 of 2011.
8. In “Subal Paul v. Malina Paul” (2003) 10 SCC 361 the Hon'ble Supreme Court referred to the provisions under the Indian Succession Act, 1925 and held that the provisions under section 299 are not akin to section 104 of the Code of Civil
