High Court
Case Details
RSA 132/2007 BEFORE HON’BLE MR. JUSTICE A.C. UPADHYAY Being aggrieved by the judgment and decree dated 18.8.2006 and 24.4.2006 respectively passed by the learned Civil Judge, Barpeta, in T.A. No. 18/05 affi rming the judgment and decree dated 20.12.2005 and 12.1.2005 respectively passed by the learned Civil Judge, (JD), Barpeta, in T.S. No. 85/99, this Second Appea l has been preferred. 2) s follows: The facts leading to the filing of the appeal may be, stated in brief, a
Facts
The appellants as plaintiff No.1 and plaintiff No.2 filed T.S. No. 85 of 1999 against the respondent Nos. 1 and 2, for declaration of plaintiffs’ right, title and interest over the suit land. The plaintiffs’ further case is that one Utsav Boro had 100 Bighas of land including the land described in Schedule-A to the plaint. Utsav Boro died leaving behind his wife Jamini Boro, two sons, name ly, Ramesh and Sankar and several daughters including the plaintiff No.1. Jamini Boro inherited 10 Bighas of land from the Schedule-A land as per Tribal c ustom. By a registered deed of gift No. 6307/77, Jamini Boro gifted her land to her daughter Smt. Thaneswari Boro. Thaneswari Boro, in turn, settled the aforesa id 10 Bighas of land to the plaintiffs by a deed of will executed on 1.10.91. Af ter death of Thaneswari Boro on 12.1.92, the plaintiffs instituted a Misc. Proba te Case No. 66/92 in the Court of District Judge, Barpeta, and the same was cont ested by the respondent/ defendant No.3, Ramesh Boro. Probate was subsequently i ssued in favour of the plaintiffs/ appellants. On 15.3.94, while the plaintiffs were in possession of the said land, the defend ant Nos. 1 and 2 forcibly entered into 6 Bighas 3 Kathas 14 Lechas of land cover ed by Dag No. 125, 155, 210,360 and 106 of Village Gobindapur. The plaintiffs ap proached the defendants several times to vacate the land, however, without any r esult. On 22.6.2009 after receiving the certified copy of the Jamabandi of the s uit land, the plaintiffs could learn that defendant No.1, Karthik Sarma had got mutation in respect of 4 Bighas 2 Kathas 19 Lechas of land covered by Dag No. 10 6 of village Gobindapur. Similarly, defendant No.2, Abhay Charan Brahma also got mutation in respect of 4 Bighas of land covered by Dag No. 360 of the same vill age. The defendant Nos.1 and 2 obtained the mutation order in respect of the sui t land by right of purchase from the defendant No.3. The plaintiff alleged that the defendant No.3 had no right, title and possession over the suit land and he had also no saleable right over the land. Hence, the suit was filed. The defendants entered appearance by filing written statement denying al 3) l the allegations made by the plaintiffs. It is also stated that the defendants were not made parties in the probate proceedings and, therefore, the directions issued by the learned Court below in the probate proceedings would not be operat ive against the defendants. It was further stated that the plaintiffs cannot hav e any right, title and interest and possession over the suit land on the strengt h of the probate of the will since the land in question was purchased by the de fendants Nos. 1 and 2 from defendant No.3. On the basis of the pleadings of the parties, the following issues were framed by the learned Trial Court for arrivin g at a just decision: (cid:28)i) Whether there is any cause of action for the suit ? ii) Whether the suit is barred by limitation ? iii) Whether the plaintiffs have right, title and interest over the A schedule l and ? iv) Whether the defendant No.3 Ramesh Ch. Boro has saleable interest over the su it land and whether defendant Nos. 1 and 2 acquired any right over the suit land . v) Whether the mutation order of S.D.C. Barnagar dt. 26/3/99 in connection with Mutation Case No. 257/97-98 was illegal and inoperative in the eye of law? vi) Whether the defendant Nos. 1 and 2 are trespasser in the suit land and liabl e to be evicted ? vii) Whether the plaintiffs are entitled to get a decree as prayed for ? viii) What other relief/ reliefs the parties are entitled to? (cid:29) 4) On the basis of the evidence laid on behalf of the plaintiffs as well as the defendants, the learned Trial Court dismissed the suit by holding that gran t of probate does no more than establish the factum of will and the legal charac ter of the executor. It does not establish the executor’s title over the propert y specified in the petition. It was further held by the Trial Court that the pla intiffs failed to prove the title of the executant of the will over the suit lan d. 5) The plaintiffs carried the appeal before the First Appellate Court. The First Appellate Court upon due appraisal of the evidence on record and upon hear ing the learned counsel for the plaintiffs/ appellants as well as the defendants / respondents, held that plaintiffs/ appellants totally failed to establish thei r right, title and interest over the suit land and, accordingly, affirmed the ju dgment and decree of the learned trial Court. 6) This second appeal having been filed against the First Appellate Court’s order, the following substantial question of law was formulated, for a just dec ision of the appeal : (cid:28)Whether the learned Court below erred in law in not recognizing the right of the appellant conferred on him by probate of the will in Misc Case No. 66/92? (cid:29) 7)
Legal Reasoning
This Court in 15) the case of Ka Riverretta Diengdoh v.s Ka Trially Sara R ymbai & another reported in 2012(5) GLT 453 has observed that the probate of a Will is a civil proceeding, in contemplation of law it is solely an inquiry as t o the validity of a certain paper writing whether it is or is not the last Will and testament of the deceased and the judgment or the decree in such case passed by the probate Court is either that it is or is not such a Will. The probate pr oceeding thus is a proceeding to establish the validity of the Will and not a re gular suit, and its inquiry is limited to the question as to whether the documen t to be forwarded as the last Will and testament of the deceased person was duly executed and attested in accordance with law and whether at the time of such ex ecution the testator had sound disposing mind. The question whether a particular bequest is good or bad is not within the purview of the probate Court. 16. In another case of Durlabh Chandra Bhattacharjee vs. Atul Barthakur repo rted in 2005(4) GLT 306, this Court held that that the Apex Court in Ishwardeo N arain singh (Supra) has held that the Court of probate is only concerned with th e question as to whether the document put forward as the last Will and testament of a deceased person was duly executed and attested in accordance with law and whether at the time of such execution the testator had sound disposing mind. The question whether a particular bequest is good or bad is not within the purview of the probate court. It has further been held that there is nothing in law whic h requires the registration of a Will and to draw any inference against the genu ineness of the Will on the ground of its non registration was wholly unwarranted . It was further held by this Court that the Apex Court has already held in var ious decisions, as discussed above, that the function of the probate court is no t to decide the question of title of the testator or testatrix but is to see whe ther the Will was legally and validly executed as required under the law. 17) On careful evaluation of the entire gamut of facts vis-à-vis the legal i ssues involved, it clearly transpires that probate of will cannot confer a title of the property to the beneficiaries of the will. Probate of the will except in dicating the description of property in question, which is bequeathed to the te stator, do not confer the possessory right to the beneficiary of the property in question. Despite having a probate of the will, the beneficiaries of the will s hall be required to establish its title over the property in question or the tit le of the testator of the will. 18) Consequently, the substantial question of law formulated by this Court i s decided in favour of the defendants against the plaintiff/appellants, since th e probate of the will did not confer any title over the property either on the t estator or the beneficiary of the will. Since the plaintiff neither could prove that the testator owned the suit property nor the plaintiff could prove her own title. 19) Accordingly, this second appeal filed on behalf of the appellants stands dismissed. 20) Send back the LCRs.
Arguments
I have heard Mr. SK Medhi, learned counsel for the appellants as well as Mr. J. Roy, learned counsel representing the respondents. 8) Learned counsel for the appellants by reiterating the facts, submitted t hat the property belonged to the ancestors of the plaintiffs and, therefore, the probate of the will, which was granted in favour of the appellants/ plaintiffs confers title of the property in question to the beneficiary of the will. Theref ore, the suit ought to have been decreed by the Court below in favour of the pla intiff. 9) In support of his contention, learned counsel for the appellants relied on the decision of the Hon’ble Apex Court reported in (2009) 10 SCC 223 (FGP Lim ited v. Saleh Hooseini Doctor, wherein it was observed as follows: (cid:28)46. In this connection, we must see the distinction between Sections 211 and 21 3 of the Succession Act. Under Section 211 of the said Act, the executor or admi nistrator, as the case may be, of a deceased person is his legal representative for all purposes, and all the property of the deceased person vests in him as su ch. Here the legal representatives will have the same meaning as has been given in Section 2(11) of the Code of Civil Procedure. Section 2(11) of the Code of Ci vil Procedure provides as under: (cid:28)2. (11) ’legal representative’ means a person who in law represents the estate of a deceased person, and includes any person who intermeddles with the estate of the deceased and where a party sues or is sued in a representative character the person on whom the estate devolves on the death of the party so suing or sue d; (cid:29) 47. Therefore, it is Section 211 and not Section 213 that deals with the vesting of property. This vesting does not take place as a result of probate. On the ex ecutor’s accepting his office, the property vests on him and the executor derive s his title from the will and becomes the representative of the deceased even wi thout obtaining probate. The grant of probate does not give title to the executo r. It just makes his title certain. & & & & & & & & 52. Even if the will is not probated that does not prevent the vesting of the pr operty of the deceased on the executor/administrator and consequently any right of action to represent the estate of the executor can be initiated even before t he grant of the probate. (cid:29) 10) Learned counsel for the appellants further submitted that executor or ad ministrator of the will as the case may be, of the deceased person is the sole r epresentative for all purpose and all the properties of the deceased person is v ested on him. 11) However, the Hon’ble Apex Court reported in (1995) Suppl 1 SCC 289 (Nepa l Krishna Roy v. Baidya Nath Poddar ), observed that no person can convey better title other than what he has. The relevant observation reads as follows: (cid:28)11. & & & & &. Nemo dat qui non habet (no person can convey a better title other than what he has) is a settled principle of law. 12. It is true that a court granting probate does not decide questions of title. But unless the plaintiffs have established their title which in this case, they have miserably failed to do, they cannot succeed. Therefore, the suit has been rightly dismissed by the courts below. Accordingly, the civil appeals will stand dismissed. No costs. (cid:29) 12) In reply to the above, learned counsel for the respondents, Mr J Roy sub mitted that the plaintiff No.1 herself in her cross-examination clearly deposed that she could not say in whose name she had instituted the suit. Learned counse l for the respondents further pointed out that in the plaint no boundary was ind icated which is contrary to the provisions of law. Moreover, the plaintiff fail ed to prove that the suit schedule either owned by the plaintiff or by the testa tor of the will. Therefore, there is no scope to interfere with the findings of the First Appellate Court. 13) In (1998) 4 SCC 539 (Punjab Urban Planning & Development Authority -vs- Shiv Saraswati Iron & Steel Rerolling Mills) , the Apex Court held that the plai ntiffs are required to prove their own case fully on its own merit and cannot ta ke advantage of the weakness of the defence case and a decree cannot be passed c onsidering the evidence of the witnesses of the defendant. Learned counsel vehem ently submitted that probate of the will cannot confer any title of the property bequeathed by the testator. Therefore, the claim of the plaintiff over the sui t land on the basis of the probate of the will is redundant. The plaintiff/app ellant must succeed or fail on his own case and cannot take advantage of weaknes s in the defendant/respondent’s case to get a decree. 14) By referring to the decision of the Hon’ble Apex Court in (2002) 1 SCC 3 3 (Ghulam Qadir v. Special Tribunal), learned counsel submitted that a probate p roceedings cannot be equated with the adjudication of the right by succession in the civil court. The relevant observation of the Apex Court reads as follows: (cid:28)64. It is true that the Act neither supersedes the law of succession applicable to the evacuee nor does it confer powers upon the authorities under the Act to adjudicate the right to succession of the claimant. If the claim of a person app roaching the Custodian is undisputed on admitted facts, such a claim may be adju dicated by the authorities in accordance with the provisions of the Act and the procedure prescribed under the Rules which envisages the service of a notice to all concerned. We have no doubt in our mind that the tenants of the property are definitely such persons who have interest in the property and thus being necess ary parties are required to be served a notice before adjudicating the claim of the person approaching the Custodian for the relief in terms of Section 8 or Sec tion 14 of the Act. It is evident from the record that when the appellant prefer red his claim to the property after the death of Sardar Begum, the then Custodia n rightly directed him to establish his title in the civil court. Such a directi on of the Custodian was upheld by the Custodian-General later vide his order dat ed 24-5-1977. Despite the orders of the Custodian and Custodian-General which ha d become final, the appellant did not get his title established in any civil cou rt and instead he preferred claim on the basis of a probate. The probate proceed ings cannot be equated with the adjudication of the right to succession by the c ivil court. In the absence of declaration of his right to succession by a civil court, the appellant was rightly held not entitled to any right to the property (vide order of the Custodian-General dated 11-2-1989 - Annexure R-11). After the death of Sardar Begum, under the circumstances of the case, the appellant was n ot entitled to prefer any claim in respect of a right or interest in the propert y which had been declined during her lifetime. The Special Tribunal, therefore, fell in error in allowing the claim filed by the appellant who, on the relevant date, is proved to have no right or interest in the property. We further hold th at even if Sardar Begum had any interest in the property which could be establis hed, the same cannot devolve upon the appellant for the reasons already noticed hereinabove. (cid:29) 15) The Apex Court has already held in various decisions, as discussed above , that the function of the probate court is not to decide the question of title of the testator or testatrix but is to see whether the Will was legally and vali dly executed as required under the law therefore, the aforesaid two decisions ci ted by Mr. Medhi, learned counsel for the petitioners, is not applicable in the instant case. 16) It was observed in 2005 (4) GLT 306 ( Ka Riverretta Diengdoh -vs- Ka Tri ally Sara Rymbai and another) that the Probate Court is not to decide the questi on of title or existence right of property involved in the will, but it only ver ify whether the will was duly executed and attested as required under the law. I t was also observed that except proving the factum of the execution of the will, it does not decide the title or existence of property mentioned therein. The re levant observation reads as follows: (cid:28)( 34 ) In Chiranjilal Shrilal Goenka, the Apex court has held that the probate Court is not to decide the question of title or existence of property involved i n the Will but it has to seen whether the Will was duly executed and attested as required under the law it has further been held that in case of probate of will the Civil Court has no jurisdiction and the jurisdiction lies only on the proba te Court. Judgment by probate Court is in rem and binds not only the parties but also the whole world. The Apex Court has further held that the decree passed by the Court without jurisdiction is a nullity and nonest. In Ghulam Qadir (Supra) , it has been held by the Apex Court that there can be no dispute to the legal p roposition that the grant of probate establishes conclusively as to the appointm ent of executor and the valid execution of the Will. It does not decide more tha n the factum of Will as the probate Court does not decide the title or the exist ence of property mentioned therein. A Division Bench of this Court in the case o f keshab Prasad Shah, relying on the judgment of the Apex Court in Ishwardeo Nar ain singh, as well as Chiranjilal Shrilal Goenka case has also reiterated the sa id position of law. (cid:29)