The execution of a Will in favor of a non-natural heir does not automatically raise suspicion; the probate court's role is to determine the Will's genuineness, not property title.

JUDGMENT :

GAUTAM KUMAR CHOUDHARY, J.

1. Heard, learned counsel for the parties.The instant Misc. Appeal has been filed against the judgment dated 30.05.2007 passed by learned 1^st Addl. District Judge, Dumka in Title Suit No.4 of 2006 (Arising out of Probate Case No.01 of 2000) whereby and whereunder the application for probate of Will dated 02.06.1998 has been allowed.

2. As per the case of the appellant(s)/ respondent(s), propounder of the Will, Smt. Someshwary Bhagtain used to reside with the plaintiff(s) after the death of her husband in the District – Birbhum, West Bengal and she was the only child of Late Baijnath Bhagat and was sole legal heir and successor of her father with respect to the property as detailed in Schedule A & B in the District-Dumka. She executed her last Will in favour of the plaintiff on 02.06.1998. The probate application was filed on 19.05.2000 after her death on 07.01.1999.

3. Appellant(s)/ Opp. Party(s)/ defendant(s) contested the probate application, inter-alia, on the ground that the probate application was shrouded in suspicious circumstances, as property of Schedule-B was jointly recorded in the name of the common ancestors. The father of Testator was neither in possession of the land of Schedule A & B property nor he had any interest over the schedule property.

4. Learned Probate Court allowed the application for probate, for the reason as detailed in Para-12 of the impugned judgment. The Probate Court noted that the attesting witness had duly proved the signature of the testator on each and every page of the Will. The attesting witnesses stated in the cross-examination that the Testator was in the sound state of mind at the time of testamentary suit of the property. Both the attesting witnesses have stated that they were neighbours of the Testator, Someshwari Bhagatain.

5. The order has been impugned mainly on the ground that the Will is in Bangla script whereas, the signature of the testator is in Hindi and no evidence has been allowed to show that the testator was conversant with Bangla script. The scribe has also not been examined who could have said that the Will was read over and explained to anyone.

6. The applicant is a rank outsider and no reason has been stated why the Will was executed deflecting, the normal line of inheritance. Reliance in this regard is placed in the judgment rendered by Hon’ble the Supreme Court in the case of Kavita Kanwar vs. Pamela Mehta & Ors. passed in Civil Appeal No. 3688 of 2017 at Para-29 onwards wherein unequal distribution of assets by way of Will was one of the factors which was considered by Hon’ble the Supreme Court to cast suspicion on the Will executed in favour of the applicant.

7. At the outset, it may be noted that a probate court is not competent to determine the title of scheduled property. The jurisdiction of a probate court is limited to determination that the will executed by the testator was last will. Whether he had right to execute the will with respect to the schedule property is beyond the scope of the court considering a probate application. The question whether a particular bequest is good or bad is not within the purview of the Probate Court. Therefore, the only issue in a probate proceeding relates to the genuineness and due execution of the will and the court itself is under duty to determine it and preserve the original will in its custody. The Succession Act is a self-contained code insofar as the question of making an application for probate, grant or refusal of probate or an appeal carried against the decision of the Probate Court (See Krishna Kumar Birla v. Rajendra Singh Lodha, (2008) 4 SCC 300; Kanwarjit Singh Dhillon v. Hardyal Singh Dhillon, (2007) 11 SCC 357)

8. Merely because the Will deflects the normal line of succession cannot be a reason to raise suspicion over its due execution. It has been held in Rabindra Nath Mukherjee v. Panchanan Banerjee, (1995) 4 SCC 459that execution of will in favour of a person who is not the n