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JHARKHAND HIGH COURT
Sanjay Kumar Dwivedi, J.
Premendra Kumar – Appellant
versus
Dharmender Kumar and Ors. – Respondents
Miscellaneous Appeal No. 479 of 2017
Decided on 27.3.2025
Indian Succession Act, 1925 – Section 278 – Probate of Will – Probate proceeding is not merely inter-partes proceeding but leads to judgment in rem and even when no one contests, it does not ipso facto lead to grant of probate – Probate is granted only on proof of Will as also on removal of suspicious circumstances – There is no inflexible rule as regards nature of evidence required in any particular circumstances, but evidence in favour of a Will, propounded after a long lapse of time, must extend to clear proof of execution – Witness who has been examined as typist of letter in support of Will, is a person of no particular credit and explanation is not offered in regard to various suspicious circumstances and that is far from convincing – Probate proceeding is ultimately a matter of conscience of Court and irrespective of whether any plea in opposition is taken or not, a Propounder of Will is required to satisfy conscience of Court with removal of all suspicious circumstances – Where execution of a Will is shrouded in suspicion, it is a matter essentially of judicial conscience of Court and party which sets up Will has to offer cogent and convincing explanation of suspicious circumstances surrounding Will – In the Will, there is no description of any property – Impugned order set aside. (Paras 11 to 17)
Result: Appeal allowed.
JUDGMENT
Heard Mr. Saurabh Shekhar, learned counsel appearing for the appellant and Mr. Himanshu Kumar Mehta, learned counsel appearing for respondent nos. 1 to 6.
2. This appeal has been filed under Section 299 of the Indian Succession Act, wherein, the challenged is made to the judgment and order dated 25.05.2017 passed in Letter of Administration Case No.08 of 2016, passed by the learned Additional Judicial Commissioner-VII, Ranchi and further challenge is made with regard to grant of letter of administration vide order dated 15.07.2017 in favour of Sri Dharmender Kumar-respondent no.1.
3. Mr. Saurabh Shekhar, learned counsel for the appellant submits that respondent no.1 approached the learned Court under the provision of Section 278 of the Indian Succession Act and sought for grant of letter of administration of the Will executed by Malti Devi, who left for her heavenly abode on 29.09.2004 by filing Letter of Administration Case No.08 of 2016. He further submits that the said letter of administration case was moved through the application, affidavited on 16.02.2016, wherein, respondent no.1 has claimed that one Malti Devi, wife of Late Sita Nath Upadhay had acquired some immovable property in the district of Ranchi, Village Rani Bagicha, Road No.4, Kati Tand, Ratu, P.O. & P.S. Ratu, District- Ranchi, which are as under:
(i) 0.4 decimals through deed no.1175, dated 11.08.1987 in the district of Ranchi
(ii) 3 decimals through deed no. 11857 dated 02.11.1992
(iii) 1.27 decimals through deed no.9044 dated 03.10.2009
(iv) 1.36 decimals through deed no.4460 dated 14.09.2010.
4. Mr. Saurabh Shekhar, learned counsel appearing for the appellant further submits that respondent no.1 has prayed for grant of letter of administration in relation to the unregistered Will entered into by the said Malti Devi, whom he claims to be as his mother. He then submits that the said Malti Devi had three sons, namely, Dharmender Kumar, Premendra Kumar and Jitender Kumar and three daughters, namely, Mrs. Rekha Mishra, Mrs. Punam Devi and Mrs. Nilam Kumari Pandey and her brother-in-law is Kashi Nath Upadhay. Malti Devi was married to Sita Nath Upadhay and, thus, they are mother and father of the appellant along with respondent nos. 1 to 5. He submits that respondent no.1 has claimed in the said application that one registered Will was executed by his so-called father, being Will dated 30.12.1987, wherein, he has declared that the property after his death will devolve upon his wife, i.e. Malti Devi and after her death, the property will be equally divided into his son Premendra Kumar and his nephews, Dharmender Kumar and Jitender Kumar and that registered Will was created as final Will of the said Sita Nath Upadhay, which has been exhibited and marked as Ext.-5 on behalf of respondent no.1. He also submits that respondent no.1 has claimed that Malti Devi had executed unregistered Will dated 31.05.2003 and he has prayed for grant of letter of administration through this unregistered Will. The death certificate of Malti Devi was brought on record, which has been marked as Ext.1. He further submits that after the notice in the said case, the appellant appeared and filed his written statement and controverted the statements made in the plaint, wherein, any relationship between Sita Nath Upadhay and respondent no.1 has been categorically denied and his father has stated that the appellant is the sole son of Late Sita Nath Upadhay and the appellant has taken ground of fake and suspicious document and it was also stated that the signature of Sita Nath Upadhay, who was the husband of the said Malti Devi was not taken in the said Will. He submits that the said lands have been mutated in the name of Late Sita Nath Upadhay and he was not made party in the said unregistered Will and mutation of the property in question was also made in his name. He submits that the ground has also been taken of manufacturing of the Will, which was the subject matter of gra
Probate of Will – Probate proceeding is not merely inter-partes proceeding but leads to judgment in rem and even when no one contests, it does not ipso facto lead to grant of probate – Probate is gra....
The court ruled that an unregistered Will must overcome all reasonable suspicions, especially if filed long after the testator's death, failing which the grant of letter of administration cannot be s....
A holographic Will is presumed valid unless strong evidence is presented to the contrary. Delays in seeking letters of administration do not invalidate the Will if the right to apply arises from lega....
A registered Will is presumed genuine unless serious doubts about its execution or the testatrix's capacity are proven.
The absence of an original Will does not invalidate its probate if secondary evidence sufficiently proves its execution and the delay in application is justified.
Important Point : A will can be proved through secondary evidence if the original is lost, and Letters of Administration can be granted when no executor is appointed.
A will must be executed in accordance with statutory requirements, and any suspicious circumstances must be adequately addressed by the propounder for the will to be validated.
(1) When a Will is allegedly shrouded in suspicion, its proof ceases to be a simple lis between plaintiff and defendant.(2) Genuineness of Will must be proved by proving intention of testator to make....
Grant of letters of administration – Presumption under Section 90 of Evidence Act, 1872 as to regularity of documents more than 30 years of age is inapplicable when it comes to proof of Wills, which ....
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