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IN THE HIGH COURT OF JHARKHAND AT RANCHI
Gautam Kumar Choudhary, J.
Wasiya Farhat, W/o Late Md. Majhar Imam and ors. - Appellants
Versus
Md. Ali Imam, S/o Late Fahimul Haque and ors. - Respondents
M. A. No. 248 of 2009
Decided On : 14-02-2025
| Table of Content |
|---|
| 1. revocation of probate based on subsequent will. (Para 1 , 2 , 3 , 4) |
| 2. issues framed for probate revocation. (Para 5 , 6) |
| 3. court's finding on grounds for revocation. (Para 7 , 8) |
| 4. arguments from both parties regarding will legitimacy. (Para 9 , 10 , 11 , 12 , 13 , 14) |
| 5. legal definition of 'just cause' for revocation. (Para 15 , 16 , 17) |
| 6. conclusion: revocation order unsustainable. (Para 18) |
JUDGMENT :
GAUTAM KUMAR CHOUDHARY, J.
1. This appeal is against the revocation of grant of probate of Will under Section 264 of the Indian SUCCESSION ACT .
2. Appellant impugns the judgment dated 30.01.2009 passed in Probate (Revocation) Case No. 02 of 2005 by learned 1st Additional District Judge, West Singhbhum, Chaibasa, whereby and whereunder, the WILL, which was duly probated in Probate Case No. 4 of 2001 on 09.02.2004, was revoked.
3. The testator of WILL was Md. Ahmad. Letter of Administration was granted in favour of Majhar Imam, the nephew of testator, as he was the sole executor of the WILL.
4. For better appreciation sequence of dates and events are set out below :-
| Date | Event |
|---|---|
| 04.11.1992 | WILL executed by Md. Ahmad in favour of the Original appellant-Majhar Imam and Noorun Nisha. |
| 10.01.1997 | Will was registered in the office of Registrar at Chaibasa. |
| 29.11.2000 | Testator Md. Ahmad dies. |
| 13.09.2001 | Executor files application for probate of Will, which gets registered as Probate Case No.4 of 2001. The detail of the property was annexed with the schedule of WILL which is the house hold property measuring an area 2 Kathas 14 Dhurs situated in Khas Mahal Holding No. 761/1462/1561, Plot Nos. 1463 and 1464, District Chaibasa. In the said probate application, Noorun Nisha was impleaded as opposite party No.1 and Md. Irfan as opposite party No.2. Both the opposite parties appeared before the court below and they filed an affidavit for grant of probate in favour of applicant-Majhar Imam. |
| 09.02.2004 | Probate allowed and the applicant appointed as sole executor of the Will dated 04.11.1992. |
5. The revocation case under Section 264 was filed by respondent no. 1-Md. Ali Imam on two counts:
Firstly, the testator had changed his mind and executed his last and final WILL on 17.07.2000 in favour of his younger brother Md. Fahimul Haque, father of the applicant, with respect to the property included in his earlier WILL dated 04.11.1992 and, therefore, the earlier WILL had become inoperative and infructuous.
Secondly, the applicant was not made a party in the probate case filed by the opposite parties in which the probate was granted with respect to the WILL dated 04.11.1992.
6. The learned court below, inter alia, framed the following main issues Issue No. 1: Is the case maintainable in its present form and for the reliefs claimed?
| Issue No. | Question |
|---|---|
| VI | Is the probate granted in favour of the opposite parties in Probate Case No. 4 of 2001 by the 1st Additional District Judge of the WILL of Md. Ahmad dated 04.11.1992 liable to be revoked/annulled? |
| VII | Is the alleged WILL of Md. Ahmad dated 17.07.2000 in favour of Late Md. Fahimul Haque liable to be probated being genuine? |
7. Learned court below recorded finding in favour of the applicant and revoked the grant of probate of WILL.
8. The grant was revoked mainly on the ground that earlier WILL probated in favour of the appellant was not the last WILL, as the testator had executed another unregistered WILL on 17.7.2000 in favour of Md. Fahimul Haque. Learned court below also disbelieved the testimony of O.P.W- 2 Md. Irfan regarding execution of Will.
9. It is argued by learned senior counsel appearing for the appellants that the WILL executed by Md. Ahmad was registered WILL and duly attested. In Probate Case No. 04 of 2001, the probate application was duly allowed after hearing the necessary party.
10. Under the Mohammadan Law, present opposite party no. 1 was not the legal heir and descendant of Md. Ahmad and was not an necessary party, therefore, there was no occasion to implead him as a party in the probate
Revocation of a probated will requires substantial evidence proving intention to revoke and adherence to legal formality; unregistered wills do not suffice without proof of revocation.
(1) Revocation of Probate – Limitations starts from date of grant of probate and not from date of knowledge about probate proceedings.(2) Probate Court is a court of conscience – Approach of a probat....
The key legal principle established is that persons with a caveatable interest in the estate of a testator are entitled to file a revocation petition under Section 263 of the Indian Succession Act, 1....
The court ruled that failure to disclose necessary parties with caveatable interest justifies revocation of probate under Section 263 of the Indian Succession Act.
The explanations under Section 263 of the Indian Succession Act, 1925 are illustrative, allowing for revocation of probate based on just causes not explicitly listed.
The applicant must demonstrate a 'just cause' for revocation of Probate and establish a caveatable interest as per Section 263 of the Succession Act, 1925.
Grant of Probate of Will – Even if Will was there at the time of survey, its non-production before survey authorities cannot lead to any inference about its non-existence on the date it purports to h....
(1) Revocation of Probate of Will – Grant of probate is a judgment in rem – If a party has caveatable interest in estate of deceased, it is entitled to be served before final order is passed.(2) Tran....
Revocation of probate not maintainable if challenging testator's title to properties, as such claimant lacks caveatable interest and is stranger to probate proceedings limited to will's genuineness.
The court emphasized that judicial discretion is crucial in probate revocations, where citation omissions do not automatically justify revocation without substantial proof or timely actions from the ....
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