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IN THE HIGH COURT OF JUDICATURE AT PATNA
PURNENDU SINGH, J.
Smt. Pushpa Devi Wife of Bijay Prasad - Appellant
Versus
Eastate Of Rupan Mahto and Anr – Respondent
First Appeal No.110 of 2018
Decided On : 22-01-2026
Indian Succession Act, 1925 – Section 276 read with Sections 217 and 295 – Rule 458 of Civil Court Rules of High Court of Judicature at Patna – Probate case – Scope and ambit – Court which is deciding probate case with a new name of title suit has no power, jurisdiction and authority to decide title suit upon property in question nor has power to decide ownership of property which is referred by Executor of Will of property – On merit, decree passed by a Court without jurisdiction or by a Court, which lacks inherent jurisdiction, is a coram non judice – Such decree passed by a Court, who has no jurisdiction, is a nullity and non est and its invalidity can be set up, where ever it is sought to be enforced or is acted upon – Execution of Will assumes great legal significance, as it represents final expression of a person's intention regarding disposition of their property after death – Will is a legally recognized instrument of testamentary succession, intended to come into operation only upon demise of testator or testatrix – Law mandates strict compliance with statutory requirements for due execution and proof of a Will, so as to guard against risk of manipulation, fraud, or undue influence – As parties have already entered into compromise, appellant becomes entitled to schedule property as mentioned in compromise petition – Matter remitted back to Probate Court, to give effect to compromise petition entered into between parties in accordance with law. (Paras 13, 16, 19 and 25)
Cases Referred:
Krishna Kumar Birla vs. Rajendra Singh Lodha, (2008) 4 SCC 300; Kanwarjit Singh Dhillon vs. Hardyal Singh Dhillon, (2007) 11 SCC 357; Meena Pradhan vs. Kamla Pradhan, 2023 (6) BLJ 38 (SC) : 2023 INSC 847; Chiranjilal Shrilala Goenka vs. Jasjit Singh, (1993) 2 SCC 507; Kanwarjit Singh Dhillon vs. Hardyal Singh Dhillon, (2007) 11 SCC 357 – Relied.
| Table of Content |
|---|
| 1. overview of the case and property details (Para 1 , 2 , 3 , 4 , 5 , 6 , 7 , 8) |
| 2. arguments regarding jurisdiction and compromise (Para 9 , 10 , 11) |
| 3. court's observations on jurisdictional limitations and findings (Para 12 , 13 , 16 , 21 , 22) |
| 4. established principles of probate law (Para 18) |
| 5. final order and disposal of the appeal (Para 23 , 24 , 25 , 26 , 27) |
JUDGMENT :
Heard learned counsel appearing on behalf of the appellant and learned counsel for the respondents.
2. The First Appeal has been preferred by the appellant against the impugned order dated 02.07.2018 passed in Probate Case No. 16 of 2009 by the Presiding Officer, Fast Track Court- 1, Nalanda at Bihar Sharif (for short, the Probate Court). The Probate Court vide impugned order dated 02.07.2018 has dismissed the petition filed by the appellant (original petitioner) under the provision of Indian Succession Act, 1925 (for short, the Act, 1925) as the executor appointed by Late Rupan Mahto by his will and testament dated 02.12.2006.
3. The petitioner (appellant hereof) is named executor as well as she is the sole executor in the said Will. The property is situated in Village – Umed Nagar, P.S.-Deep Nagar, District – Nalanda and also in Village – Meghi Nagma, Thana No. 319, Khata No. 705, Plot No. 4306, Area – ½ Dec, District – Nalanda.
4. The brief facts of the case, is that, one Rupan Mahto, the father-in-law of the appellant, executed a Will dated 02.12.2006 in favour of his daughter-in-law, namely Pushpa Devi, who is the petitioner in Probate (T.S.) Case No. 16 of 2009, and the appellant hereof. The said Will was executed out of love and affection, with the consent of the nearest relatives, and out of the free and sweet will of the testator, as his last Will and testament. The Probate Court has recorded that Rupan Mahto had five sons and three daughters. There was oral partition among all sons of Rupan Mahto. However, none of the parties gave details of the property allotted to each member in the said partition. An objection was filed by Ashok Kumar that Rupan Mahto had never been residing with Pushpa Devi, rather he lived separately. All his sons and daughters were rendering service to Rupan Mahto and he never showed his prudent desire to execute the registered deed of Will.
5. It is informed that a caveat was filed by Jugeshwar Mahto and others and subsequently a compromise petition was filed stating therein that after receiving notice of this case, the parties, namely, Jugeshwar Mahto, Siddheshwar Mahto, Vijay Mahto, Manti Devi, Barti Devi, except Ishari Mahto, as mentioned in Para-3 of the petition, with the advice of other relatives, they wanted not to dispute the genuinity of the Will dated 02.12.2006 executed by Rupan Mahto in favour of Pushpa Devi – the petitioner of the Probate Case and appellant hereof and they had no objection in granting Probate in favour of the petitioner-appellant. Respondent No. 2-Ashok Kumar had not filed any affidavit that he don’t want to contest the suit nor he was party to the said compromise petition which was jointly filed on behalf of the above parties including the caveator Jugeshwar Mahto.
6. The Probate Court framed following issues on the petition of the parties:
i. Whether the registered deed of Will dated 02.12.2006 executed by Rupan Mahto in favour of Pushpa Devi, petitioner / plaintiff is duly executed and genuine and free from all suspicious circumstances?
ii. Whether the Will dated 02.12.2006 is last Will of Rupan Mahto ?
7. The issue was framed after the Probate Case No. 16 of 2009 was converted into Title Suit. Now, the said Title Suit was contested and Probate Petition filed on behalf of the petitioner dated 04.11.2009 was dismissed against which the present First Appeal has been preferred by the appellant.
8. It has been recorded by the Probate Court that after examination of the witnesses and material evidence on record, the Will deed dated 02.12.2006 executed by Rupan Mahto in favour of Pushpa Dev
The jurisdiction of a Probate Court is limited to assessing the genuineness and execution of a Will; it cannot adjudicate rights or title to property.
(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....
The validity of a Will must be proven with clear evidence, especially when suspicious circumstances exist, and findings of fact by lower courts should not be disturbed unless they are perverse.
Probate of a Will requires strict compliance with statutory formalities, including attestation by witnesses; failure to provide adequate proof leads to dismissal of the application.
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