Gorakhpur, Uttar Pradesh vs Karmatarn, District- Jamtara, Jharkhand.

Judgment

1. Prakash Sonkar, aged about 57 years, son of Late Gabbulal ------ Sonkar alias Gabbulal Khatik,

2. Rinku Kumar Sonkar, aged about 31 years, son of Late Prem Chandra Sonkar,

3. Asha Devi, aged about 47 years, wife of Late Prem Chandra Sonkar, All Residents of village Sitakata, (Lalkothi), P.O. & P.S.- Karmatarn, District- Jamtara, Jharkhand.

5. Vicky Kumar Sonkar, aged about 33 years. Vishal Kumar Sonkar, aged about 28 years, Both sons of Prem Chand Sonkar, Resident of Village Sitakata, (Karmatarn), Lalkothi, P.O. & P.S.- Karmatarn, District- Jamtara, Jharkhand.

6. Ashok Kumar Sonkar, aged about 51 years, S/o Late Gabbulal Sonkar, Resident of Village Sitakata, (Karmatarn), Lalkothi, P.O. & P.S.- Karmatarn, District- Jamtara, Jharkhand.

7. Usha Devi, aged about 49 years, wife of Lalan Sonkar, resident of Village Barhalganj (Tola Chodhrana Mohalla), P.O. & P.S- Bahralganj, District- Gorakhpur, Uttar Pradesh.

8. Sharmila Devi, aged about 47 years, wife of Bholasankar Sonkar, Resident of Village Sastrinagar, Kadma, Jamshedpur, House no.23, Ward No.3, Road no.1, Near Sisu Mandir, P.O. & P.S.- Kadma, District- East Singhbhum, Jharkhand.

9. Smt. Gita Devi, aged about 47 years, W/o Shankar Prasad Sonkar, Resident of at Kadhachak, P.O. and P.S.- Gagaha, Dist- Gorakhpur, Uttar Pradesh ………. Defendants/Appellants Versus 1 M.A. No.71 of 2023 (1) Raj Kumar Sonkar, aged about 41 years, son of Gabbulal Sonkar alias Gabbulal Khatik, Residents of village Sitakata P.O. & P.S.- Karmatarn, District- Jamtara, Jharkhand. (2) 16/- Annas Raiyat of Mauza, Sitakata Karmatar, P.O. & P.S.- Karmatar, Sub Division of District- Jamtara, Jharkhand

………. Plaintiff/Respondent ………. Proforma Respondent ------ For the Appellants : Mr. Bhupal Krishna Prasad, Advocate Mr. Rohit Sinha, Advocate Ms. Shreesha Sinha, Advocate Mr. Niraj Kumar, Advocate For the Resp. No.1 : Mr. Shashank Shekhar, Advocate P R E S E N T HON’BLE MR. JUSTICE ANIL KUMAR CHOUDHARY By the Court: - Heard the parties. ------

2. This appeal, under Section 299 of the Indian Succession Act, 1925 has been preferred against the Judgment dated 21.01.2023 passed by District Judge-I, Jamtara in Original Suit (Probate Case) No.01 of 2018 whereby and where under the learned District Judge- I, Jamtara has allowed the probate case and issued the probate of the WILL in the prescribed form in favour of the petitioner. 3. The brief facts of this case is that the testatrix Badami Devi executed a WILL on 15.03.2011 in favour of the petitioner/respondent who is the youngest son of Badami Devi and got the same registered in Jamtara court in presence of two witnesses namely Ashok Kumar Sonkar and Akhilesh Gupta which was registered vide WILL No.91/1 dated

15.03.2011. As per the said WILL, the petitioner/respondent has been given the full authority of the lands in respect of which the WILL was executed. Badami Devi died on 23.11.2014. The petitioner filed the petition for probate of the WILL on 20.02.2018. 4. The opposite parties/appellants their written statement challenged the maintainability of the probate application on various technical grounds including the same being barred by limitation and also 2 M.A. No.71 of 2023 pleaded that the witness Akhilesh Gupta is a close friend of the petitioner/respondent and as such with ulterior motive, his name has been mentioned as a witness. The opposite parties/appellants next pleaded that the petitioner has put his signature in the WILL. They next pleaded that the other witness Ashok Kumar Sonkar is not a mentally fit person and he is suffering from mental disorder for about ten years. They also pleaded that taking the advantage of illness and illiteracy of Badami Devi, the petitioner managed to get the WILL executed by her and at the time of execution of the WILL, Badami Devi was not in sound health condition and she was not in a position to understand what she was doing and no certificate of the doctor regarding the good health of the said Badami Devi has been put forth. Badami Devi was not physically fit. The objectors are the class-I heirs of Badami Devi and they have got equal right over the estate of Badami Devi. The opposite party/appellant further pleaded that Badami Devi along with the opposite party/appellant No.1 filed a regular Title Suit being Original Suit No.13 of 2013 in the court of Civil Judge, Senior Division-I, Jamtara for declaration of right, title and interest over certain properties including the prayed properties and in the said suit, the opposite party/appellant No.6 namely Ashok Kumar Sonkar is the defendant No.6 as he was not having good relationship with his mother- Badami Devi. 5. The learned trial court on the basis of rival pleadings of the parties, framed the following seven issues:- Is the Probate Case as filed by the petitioner is maintainable? (i) (ii) Whether the petitioner has got any valid cause of action? (iii) Whether Court fee has been properly paid? (iv) Whether the Probate Case is barred by non-joinder of necessary parties? (v) Whether the petitioner is entitled for an order of Probate of the “WILL” legally? (vi) Is the suit barred by limitation? (vii) Is the petitioner entitled to the other reliefs?

6. In support of their case, the petitioner/respondent examined four witnesses and also proved the documents which have been marked as Ext. 1 to Ext. 6. The opposite party/ appellants on the other hand examined two witnesses. 7. The learned trial court first took up issue No.(v) and considering the materials available record 3 M.A. No.71 of 2023 petitioner/respondent was the youngest son of Badami Devi and Badami Devi has got special love and affection for him and Badami Devi was maintained by the petitioner/respondent in her old age, hence, she executed the WILL on 15.03.2011 having full authority in respect of the lands. The learned trial court considered the testimony of P.W.1- Akhilesh Gupta- the witness of the WILL having identified Badami Devi and he has deposed about the execution and registration of the WILL in the Registry Office of Jamtara and proved the WILL which was marked as Ext. 1 and the signatures of Ravindra Routh- advocate and Dhananjay Biswas- typist which were marked as Ext.2 and 3. The learned trial court also considered the testimony of the P.W.4- the petitioner himself who has proved the compromise decree passed in Title Suit No.54 of 2006 marked as Ext. 6 and who has also stated about the death of Badami Devi. Ext. 1 is the signature of the petitioner on the WILL and the WILL has been marked as Ext. 4. The P.W.4 has also stated about the sale-deed executed in favour of Badami Devi and the appellant Nos.1 and 6 which has been marked as Ext. 6. The learned trial court also considered the testimony of P.W.2 and P.W.3 who also proved the authenticity of the WILL and considering the evidence in the record, came to the conclusion that the petitioner has proved that Badami Devi has duly executed her last WILL and testament i.e. Ext.4 on 15.03.2011 and it was duly attested in accordance with law at the time of execution of the WILL and thus, the petitioner is entitled to grant of probate of WILL. 8. The learned trial court next took up issue No. (iii) and came to the conclusion that the court fee has properly been paid by the petitioner. 9. In respect of issue No. (iv), next taken up by the learned trial court, the learned trial court came to the conclusion that there is no material brought by the opposite party of any necessary party being not joined and decided the said issue against the opposite party. 10. The learned trial court disposed of the issue No. (vi) as the same has not been pressed. 11. Lastly, the learned trial court took up issue Nos. (i), (ii) and (vii) together granted probate of the WILL as already indicated above. 12. Learned counsel for the appellants draws the attention of this Court towards the judgment of the Hon’ble Supreme Court of India in the case 4 M.A. No.71 of 2023 of Ramesh Nivrutti Bhagwat vs. Dr. Surendra Manohar Parakhe reported in (2020) 17 SCC 284 paragraphs-13, 14 and 16 of which read as under:- “13. This issue was considered in Kunvarjeet Singh Khandpur v. Kirandeep Kaur [Kunvarjeet Singh Khandpur v. Kirandeep Kaur, (2008) 8 SCC 463] . This Court negatived the plea that since the Act prescribes no period of limitation in regard to matters concerning grant of probate or letters of administration, there is no time-limit. The Court followed the decision in Kerala SEB v. T.P. Kunhaliumma [Kerala SEB v. T.P. Kunhaliumma, (1976) 4 SCC 634 : (1977) 1 SCR 996] which took note of the change in the collocation of words in Article 137 of the Limitation Act, 1963 compared with Article 181 of the Limitation Act, 1908, and held that applications contemplated under Article 137 are not applications confined to the Code of Civil Procedure, 1908. In the older Limitation Act of 1908, there was no division between applications in specified cases and other applications, as in the Limitation Act, 1963. The Court held in Kerala SEB [Kerala SEB v. T.P. Kunhaliumma, (1976) 4 SCC 634 : (1977) 1 SCR 996] that: (SCC pp. 638-39, paras 18 & 22) “18. … The words “any other application” under Article 137 cannot be said on the principle of ejusdem generis to be applications under the Civil Procedure Code other than those mentioned in Part I of the third division. Any other application under Article 137 would be petition or any application under any Act. But it has to be an application to a court for the reason that Sections 4 and 5 of the Limitation Act, 1963 speak of expiry of prescribed period when court is closed and extension of prescribed period if applicant or the appellant satisfies the court that he had sufficient cause for not preferring the appeal or making the application during such period. ***

22. The conclusion we reach is that Article 137 of the Limitation Act, 1963 will apply to any petition or application filed under any Act to a civil court. With respect we differ from the view taken by the two-Judge Bench of this Court in Athani Municipal Council case [Town Municipal Council, Athani v. Labour Court, (1969) 1 SCC 873] and hold that Article 137 of the Limitation Act, 1963 is not confined to applications contemplated by or under the Code of Civil Procedure.”

14. Applying the ratio in Kerala SEB [Kerala SEB v. T.P. Kunhaliumma, (1976) 4 SCC 634 : (1977) 1 SCR 996] , the Court, in Kunvarjeet Singh Khandpur [Kunvarjeet Singh Khandpur v. Kirandeep Kaur, (2008) 8 SCC 463] observed that: (Kunvarjeet Singh Khandpur case [Kunvarjeet Singh Khandpur v. Kirandeep Kaur, (2008) 8 SCC 463] , SCC p. 467, para 13) “13. … The crucial expression in the petition (sic Article) is “right to apply”. In view of what has been stated by this Court, Article 137 is clearly applicable to the petition for grant of letters of administration. As rightly observed [Kunvarjeet Singh Khandpur v. Kirandeep Kaur, 5 M.A. No.71 of 2023 2005 SCC OnLine Del 1573] by the High Court in such proceedings the application merely seeks recognition from the court to perform a duty and because of the nature of the proceedings it is a continuing right.” The Court then concluded that the right to apply for probate accrues on the date of death of the testator.

16. The decision in Lynette Fernandes v. Gertie Mathias [Lynette Fernandes v. Gertie Mathias, (2018) 1 SCC 271] , dealt with the precise issue of the period of limitation applicable for an application for cancellation of a probate or letters of administration. This Court held as follows: (SCC pp. 283-84, para 19) “19. One must keep in mind that the grant of probate by a competent court operates as a judgment in rem and once the probate to the will is granted, then such probate is good not only in respect of the parties to the proceedings, but against the world. If the probate is granted, the same operates from the date of the grant of the probate for the purpose of limitation under Article 137 of the Limitation Act in proceedings for revocation of probate. In this matter, as mentioned supra, the appellant was a minor at the time of grant of probate. She attained majority on 9-9-1965. She got married on 27-10-1965. In our considered opinion, three years’ limitation as prescribed under Article 137 runs from the date of the appellant attaining the age of majority i.e. three years from 9-9-1965. The appellant did not choose to initiate any proceedings till the year 25-1-1996 i.e. a good 31 years after she attained majority. No explanation worthy of acceptance has been offered by the appellant to show as to why she did not approach the court of law within the period of limitation. At the cost of repetition, we observe that the appellant failed to produce any evidence to prove that the will was a result of fraud or undue influence. The same will has remained unchallenged until the date of filing of application for revocation. No acceptable explanation is offered for such a huge delay of 31 years in approaching the Court for cancellation or revocation of grant of probate.” and submits that since Article 137 of the Schedule of the Limitation Act is applicable to a petition for grant of probate and as admittedly the prayer for grant of probate was filed more than three years after the date of death of the testatrix on 23.11.2014, hence, the learned court below committed a grave error by not dismissing the probate application being barred by limitation. 13. Learned counsel for the appellants next relies upon the judgment of the Hon’ble Supreme Court of India in the case of Kunvarjeet Singh Khandpur vs. Kirandeep Kaur & Others reported in (2008) 8 SCC 463 paragraphs-14 and 15 of which read as under:- 6 M.A. No.71 of 2023 “14. Though the nature of the petition has been rightly described by the High Court, it was not correct in observing that the application for grant of probate or letters of administration is not covered by Article 137 of the Limitation Act. Same is not correct in view of what has been stated in Kerala SEB case [(1976) 4 SCC 634] . 15. Similarly reference was made to a decision of the Bombay High Court in Vasudev Daulatram Sadarangani v. Sajni Prem Lalwani [AIR 1983 Bom 268] . Para 16 reads as follows : (AIR p. 270) “16. Rejecting Mr Dalpatrai’s contention, I summarise my conclusions thus— (a) under the Limitation Act no period advisedly prescribed within which an application for probate, letters of administration or succession certificate must be made; (b) the assumption that under Article 137 the right to apply necessarily accrues on the date of the death of the deceased, is unwarranted; (c) such an application the court’s permission to perform a legal duty created by a will or for recognition as a testamentary trustee and is a continuous right which can be exercised any time after the death of the deceased, as long as the right to do so survives and the object of the trust exists or any part of the trust, if created, remains to be executed; (d) the right to apply would accrue when it becomes necessary to apply which may not necessarily be within 3 years from the date of the deceased’s death; (e) delay beyond 3 years after the deceased’s death would arouse suspicion and greater the delay, greater would be the suspicion; (f) such delay must be explained, but cannot be equated with the absolute bar of limitation; and (g) once execution and attestation are proved, suspicion of delay no longer operates.” Conclusion (b) is not correct while Conclusion (c) is the correct position of law.” (Emphasis supplied) and submits that as the petitioner has failed to come up with any explanation as to why the petition for grant of probate was not filed within a period of three years from the date of death of the testatrix, hence, there is no way the delay in filing the petition for grant of probate could have been condoned by the learned trial court. 14. Learned counsel for the appellants draws the attention of this Court to Section 275 read with Section 281 of the Indian Succession Act, 1975, which read as under:-

275. Conclusiveness of application for probate or administration if properly made and verified.—The application for probate or letters of administration, if made and verified in the manner hereinafter provided, shall be conclusive for the purpose of authorising the grant of probate or administration; and no such grant 7 M.A. No.71 of 2023 shall be impeached by reason only that the testator or intestate had no fixed place of abode or no property within the district at the time of his death, unless by a proceeding to revoke the grant if obtained by a fraud upon the Court.

281. Verification of petition for probate, by one witness to Will.—Where the application is for probate, the petition shall also be verified by at least one of the witnesses to the Will (when procurable) in the manner or to the effect following, namely:— “I (C.D.), one of the witnesses to the last will and testament of the testator mentioned in the above petition, declare that I was present and saw the said testator affix his signature (or mark) thereto (or that the said testator acknowledged the writing annexed to the above petition to be his last will and testament in my presence).” and submits that none of the witness of the WILL has verified the petition for grant of probate so, on that score also, the probate application ought to have been rejected by the learned court below. 15. Learned counsel for the appellants next relies upon the judgment of the Hon’ble Supreme Court of India in the case of Smt. Jaswant Kaur vs. Smt. Amrit Kaur & Others reported in (1977) 1 SCC 369 paragraphs-10 and 23 of which read as under:- “10. There is a long line of decisions bearing on the nature and standard of evidence required to prove a will. Those decisions have been reviewed in an elaborate judgment of this Court in R. Venkatachala Iyengar v. B.N. Thimmajamma [AIR 1959 SC 443 : through 1959 Supp 1 SCR 426] Gajendragadkar, J., laid down in that case the following propositions : . The Court, speaking “1. Stated generally, a will has to be proved like any other document, the test to be applied being the usual test of the satisfaction of the prudent mind in such matters. As in the case of proof of other documents, so in the case of proof of wills, one cannot insist on proof with mathematical certainty.

2. Since Section 63 of the Succession Act requires a will to be attested, it cannot be used as evidence until, as required by Section 68 of the Evidence Act, one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the court and capable of giving evidence.

3. Unlike other documents, the will speaks from the death of the testator and therefore the maker of the will is never available for deposing as to the circumstances in which the will came to be executed. This aspect introduces an element of solemnity in the decision of the question whether the document propounded is proved to be the last will and testament of the testator. Normally, the onus which lies on the propounder can be taken to be discharged on proof of the essential facts which go into the making of the will. 8 M.A. No.71 of 2023

4. Cases in which the execution of the will is surrounded by suspicious circumstances stand on a different footing. A shaky signature, a feeble mind, an unfair and unjust disposition of property, the propounder himself taking a leading part in the making of the will under which he receives a substantial benefit and such other circumstances raise suspicion about the execution of the will. That suspicion cannot be removed by the mere assertion of the propounder that the will bears the signature of the testator or that the testator was in a sound and disposing state of mind and memory at the time when the will was made, or that those like the wife and children of the testator who would normally receive their due share in his estate were disinherited because the testator might have had his own reasons for excluding them. The presence of suspicious circumstances makes the initial onus heavier and therefore, in cases where the circumstances attendant upon the execution of the will excite the suspicion of the court, legitimate suspicions before the document can be accepted as the last will of the testator. the propounder must remove all

5. It is in connection with wills, the execution of which is surrounded by suspicious circumstances that the test of satisfaction of the judicial conscience has been evolved. That test emphasises that in determining the question as to whether an instrument produced before the court is the last will of the testator, the court is called upon to decide a solemn question and by reason of suspicious circumstances the court has to be satisfied fully that the will has been validly executed by the testator.

6. If a caveator alleges fraud, undue influence, coercion etc. in regard to the execution of the will, such pleas have to be proved by him, but even in the absence of such pleas, the very circumstances surrounding the execution of the will may raise a doubt as to whether the testator was acting of his own free will. And then it is a part of the initial onus of the propounder to remove all reasonable doubts in the matter.”

23. Quite a few other circumstances can be mentioned which raise a grave suspicion as regards the making of the will but the circumstances enumerated above are, in our opinion, sufficient to discard the will. The defendant in his evidence has offered no explanation of any of these circumstances. He has totally failed to discharge the heavy onus which lay on him of explaining the suspicious circumstances surrounding the execution of the will and of establishing that the document which he propounded was the last will and testament of his grandfather Gobinder Singh.” and submits that since the area of the property in respect of which the WILL has been executed, has been mentioned as 2.05 acres whereas admittedly the testatrix got 1.60 acres of land on the basis of a 9 M.A. No.71 of 2023 compromise decree passed in Title Suit No.54 of 2006. So, this creates doubt about the veracity of the WILL. 16. Learned counsel for the appellants next submits that since no doctor has been examined to support the claim of the petitioner that the testatrix was in sound mental disposition at the time of the execution of the WILL. Hence, it is submitted that the same is another ground which creates a suspicion. 17. Learned counsel for the appellants further submits that second attesting witness namely Ashok Kumar Sonkar has not been examined in the backdrop that he was not mentally sound and that too also raises a doubt about the genuineness of the WILL which has been probated by the learned trial court. 18. Learned counsel for the respondent No.1 on the other hand defended the impugned judgment passed by the learned trial court. Learned counsel for the respondent No.1 submits that the contention of the appellants that the prayer for grant of probate was barred by limitation is fallacious. Learned counsel for the respondent No.1 relies upon the judgment of the Hon’ble Supreme Court of India in the case of Sameer Kapoor & Another vs. State through Sub-Division Magistrate South, New Delhi & Others reported in AIROnline 2019 SC 251 paragraphs-16, 17 and 18 of which reads as under:- “16. While considering the issue involved, the decision of this Court in the case of Kunvarjeet Singh Khandpur (AIR 2008 SC 2058)(supra) is required to be referred to and considered. In the said decision, this Court considered the decision of the Bombay High Court in the case of Vasudev Daulatram Sadarangani v. Sajni Prem Lalwani reported in AIR 1983 Bom. 268, as well as, the decision of the Madras High Court in the case of S. Krishnaswami v. E. Ramiah, reported in AIR 1991 Mad. 214. In the said decision, this Court referred to and considered paragraph 17 of the decision of the Madras High Court in the case of S. Krishnaswami(supra), which reads as under: "17. In a proceeding, or in other words, in an application filed for grant of probate or letters of administration, no right is asserted or claimed by the applicant. The applicant only seeks recognition of the court to perform a duty. Probate or letters of administration issued by a competent court is conclusive proof of the legal character throughout the world. An assessment of the relevant provisions of the Indian Succession Act, 1925 does not convey a meaning that by the proceedings filed for grant of probate or letters of administration, no rights of the applicant are settled or secured in the legal sense. The author of the testament has cast the duty with regard to the administration of his estate, and the applicant for probate or letters of administration only seeks the permission of the court to perform that 10 M.A. No.71 of 2023 duty. There is only a seeking of recognition from the court to perform the duty. That duty is only moral and it is not legal. There is no law which compels the applicant to file the proceedings for probate or letters of administration. With a view to discharge the moral duty, the applicant seeks recognition from the court to perform the duty. It will be legitimate to conclude that the proceedings filed for grant of probate or letters of administration is not an action in law. Hence, it is very difficult to and it will not be in order to construe the proceedings for grant of probate or letters of administration as applications coming within the meaning of an ’application’ under Article 137 of the Limitation Act, 1963."

17. Therefore, considering the law laid down by this Court in the case of Kunvarjeet Singh Khandpur (AIR 2008 SC 2058) (supra), it can be said that in a proceeding, or in other words, in an application filed for grant of probate or letters of administration, no right is asserted or claimed by the applicant. The applicant only seeks recognition of the court to perform a duty. Probate or letters of administration issued by a competent court is conclusive proof of the legal character throughout the world. That the proceedings filed for grant of probate or letters of administration is not an action in law but it is an action in rem. As held by this Court in the case of Kunvarjeet Singh Khandpur (AIR 2008 SC 2058) (supra), an application for grant of probate or letters of administration is for the court’s permission to perform a legal duty created by a will or for recognition as a testamentary trustee and is a continuous right which can be exercised any time after the death of the deceased, as long as the right to do so survives and the object of the trust exists or any part of the trust, if created, remains to be executed. Therefore, even if the will is probated by any court mentioned in Section 228 of the Act, right to get the letters of administration is a continuous right which can be exercised any time, as long as the right to do so survives and the object of the trust exists or any part of the trust, if created, remains to be executed.

18. Applying the law laid down by this Court in the aforesaid decision and the observations made hereinabove, the submission on behalf of the appellants that Probate Case No. 15/2001 filed by respondent No.2 for letters of administration under Section 228 of the Act, read with Section 276 of the Act is barred by law of limitation, cannot be accepted. At this stage, it is required to be noted that even in the plaint, it is specifically pleaded that after passing away of the father of the parties in the year 2000, the appellants started intermeddling with properties bequeathed to respondent No.2, which were situated in Delhi and, therefore, left with no option, he was compelled to apply for letters of administration. Therefore, even as per the pleadings in the application, the cause of action started from the date on which the appellants started intermeddling with the properties bequeathed to respondent No.2, after passing away of the father of the parties in the year 2000. Therefore, in the facts and circumstances of the case, both the learned Single Judge and the Division Bench have rightly refused to reject the application in exercise of powers under Order VII Rule 11 of the CPC. In the facts and circumstances of the case and as observed hereinabove, it cannot be said that the application for letters of administration was clearly barred by the law of limitation which was required to be rejected in exercise of powers under Order 11 M.A. No.71 of 2023 VII Rule 11(d) of the CPC. We are in complete agreement with the view taken by the High Court.”

19. Learned counsel for the respondent No.1 further submits that the probate application is a continuous act which can be exercised any time after the death of the deceased as long as the right to do so survives and the object of the trust exists or any part of the trust created remains to be executed; which stands in a different footing than that of an application for revocation of probate of a WILL granted by a court for which the limitation for three years is applicable as has been held by the Hon’ble Supreme Court of India in the case of Ramesh Nivrutti Bhagwat vs. Dr. Surendra Manohar Parakhe (supra). 20. Learned counsel for the respondent No.1 next submits that the Hon’ble Supreme Court of India in the case of Kunvarjeet Singh Khandpur vs. Kirandeep Kaur & Others reported in (2008) 8 SCC 463 paragraph-15 of which has been quoted above, in the foregoing paragraphs of this judgment; has held that the conclusion (C) is the correct position and which goes to show that the Hon’ble Supreme Court of India has validated the principle of law that the right to probate of a WILL is a continuous right. In this respect, learned counsel for the respondent No.1 relies upon the judgment of the Hon’ble Supreme Court of India in the case of Krishna Kumar Sharma vs. Rajesh Kumar Sharma reported in AIR 2009 Supreme Court 3247 paragraph-7 of which reads as under:- “7. Article 137 of the Limitation Act reads as follows : "137. Description of application : Any other application for which no period of limitation is provided elsewhere in the Division. Period of Limitation :Three Years Time from which period begins to run : When the right to apply accrues." The crucial expression in the provision is "right to apply". In view of what has been stated by this Court, Article 137 is clearly applicable to the petition for grant of Letters of Administration. As rightly observed by the High Court in such proceedings the application merely seeks recognition from the Court to perform a duty because of the nature of the proceedings. It is a continuing right. The Division Bench of the Delhi High Court referred to several decisions. One of them was S. Krishnaswami and etc. etc. v. E. Ramiah (AIR 1991 Mad 214). In para 17 of the said judgment it was noted as follows : 12 M.A. No.71 of 2023 "17. for grant of probate or In a proceeding, or in other words, in an letters of application administration, no right is asserted or claimed by the applicant. The applicant only seeks recognition of the Court to perform a duty. Probate or letter of Administration issued by a competent Court is conclusive proof of the legal character throughout the world. An assessment of the relevant provisions of the Indian Succession Act, 1925 does not convey a meaning that by the Proceedings filed for grant of probate or letters of administration, no rights of the applicant are settled or secured in the legal sense. The author of the testament has cast the duty with regard to the administration of his estate, and the applicant for probate or letters of administration only seeks the permission of the Court to perform that duty. There is only a seeking of recognition from the Court to perform the duty. That duty is only moral and it is not legal. There is no law which compels the applicant to file the proceedings for probate or letters of administration. With a view to discharge the moral duty, the applicant seeks recognition from the Court to perform the duty. It will be legitimate to conclude that the proceedings filed for grant of probate or letters of administration is not an action in law. Hence, it is very difficult to and it will not be in order to construe the proceedings for grant of probate or letters of administration as applications coming within the meaning of an ’application’ under Art. 137 of the Limitation Act, 1963."

21. Learned counsel for the respondent No.1, in this respect next relies upon the judgment of the Hon’ble Calcutta High Court in the case of Hanuman Prasad Agarwal @ Hanuman Prosad Agarwal & Suresh Agarwal @ Suresh Kumar Agarwal vs. Satyanarain Agarwal reported in AIR 2020 Calcutta 246 paragraph-13 of which reads as under:- “13. The legality of the proposition which the defendant no.1 seeks to establish in this application needs to be examined a little bit further. The language of Article 137 of the Limitation Act is not 3 years from the date of death of the testator but when "the right to apply accrues" which means that the time envisaged will be activated once the right is denied, giving rise to a consequent need to assert the right. Further while section 293 of the Indian Succession Act provides for a cooling-off period of expiration of 7 clear days from the day of the testator’s or intestate’s death before a probate of a Will can be granted (and 14 clear days for a letter of administration), there is no outer limit within which an executor has to take out an application for grant of probate. The absence of an end-point within which such an application has to be filed is a deliberate legislative omission pointing to a larger rationale underlying cases involving grant of probate. First, the date of death of the testator cannot fix the executor with a simultaneous obligation to apply for probate as it may not be possible for the executor to know of the testator’s death in every case. The implementation of the wishes of a testator in terms of giving effect to 13 M.A. No.71 of 2023 the Will cannot be defeated merely on account of the delay on the part of the executor in applying for a probate. Second, in an application for grant of probate, no right is claimed by the applicant. The applicant only seeks recognition of the court to perform a duty, namely the duty cast by the author of the testament upon the executor with regard to administration of his estate. Third, except section 217 which regulates applications for probates/letters of Administration under Part IX of the 1925 Act, there is no provision in the Succession Act which compels the executor to file for grant of probate. Hence, if the right to apply for probate is seen as a continuing right, construing Article 137 as bringing down the curtain to such a right after 3 years cannot stand to reason and would frustrate the very object of the law preserving the wishes of a testator. Importing the provisions of the Limitation Act in a manner which would frustrate the last wish of the deceased cannot also be the intention of the Legislature since the decision of a Probate Court is a judgment in rem not only binding upon the parties to the probate proceeding but binding on the whole world. Till the order granted by the probate court remains in force it is conclusive as to the execution and validity of the Will till the grant of probate is revoked. Section 41 of the Evidence Act provides that an order of a competent court in exercise of probate jurisdiction is conclusive proof of the genuineness of the Will.”

22. Learned counsel for the respondent No.1 next submits that the contention of the appellants that non-compliance of Section 275 read with Section 281 of the Indian Succession Act, 1925 by not satisfying the verification by the witnesses of the WILL, will not be fatal for the petition because the same is not mandatory in nature. In this respect, learned counsel for the respondent No.1 relies upon the judgment of the Hon’ble Madhya Pradesh High Court in the case of Jamunabai & two others vs. Surendra Kumar & Another reported in AIR 1995 Madhya Pradesh 274 paragraph-27 of which reads as under:- “27. In my opinion and as the matter was argued in detail it is necessary to add a few words. S. 281, prima facie, shows that where the application is for probate the petition shall also be verified by at least one of the witnesses to the Will and the manner in which this verification is to be made is given in S. 281. The intention of the Legislature behind enacting S. 281 is very clear. It is expected that forged Wills which have been attested by such persons who are rot to be found may not be brought before the Court. The intention behind S. 281 is to be seen from its own language. According to S. 281 a petition should also be verified by at least one of the witnesses. The effect of non-observance of the conditions laid under S. 281 are not given under the Indian Succession Act. The use of the word ’shall under these circumstances would not mean mandatory resulting in the dismissal of the petition for grant of probate but in fact it only means that the petition should be verified by one witness if he is available. In the instant case the application filed under S. 276 has the signature of Gordhanlal (P. W. 2) on it. P. W. 2 Gordhanlal has put 14 M.A. No.71 of 2023 his signatures on the main petition as a witness though the words in which the verification is to be made are not to be found in the main petition. As observed above the requirement is of the signatures of an attesting witness. The form provided under S. 281 is directory is a guideline and does nowhere say that if the verification is not in accordance with S. 281 then the petition is liable to be rejected. In my opinion, recommendatory and not mandatory and an omission to verify is not fatal to the probate proceedings. The contention of the learned counsel that absence of a verification in accordance with S. 281 would make the petition liable to be rejected is untenable and the same is rejected.” the provision about verification of the petition

23. In this respect, learned counsel for the respondent No.1 also relies upon the judgment of the Hon’ble Allahabad High Court in the case of Nand Kishore Rai & Another vs. Mst. Bhagi Kuer & Others reported in AIR 1958 Allahabad 329 paragraph-3 of which reads as under:- “3. Verification of a petition required under S 281 is similar to verification required of pleadings, including a plaint, under O. VI, R. 15, C. P. C, and has no greater effect or value. Omission to verify, or defective verification of, a pleading is a mere irregularity within S. 99, C.P. C. and is never fatal. The provision of S. 281 of the Succession Act is less drastic than that of O. VI, R. 15 and an omission to verify, or a defective verification of, a petition for probate cannot have a more serious effect than that of a plaint. A pleading must be verified by the party or by some other person acquainted with the facts of the case; a petition for probate is, however, required to be verified by an attesting witness. A petitioner for probate has no legal authority over an attesting witness and cannot compel him to verify the petition. He may be bound to get the petition verified but an attesting witness is not bound to verify it at his instance and he would be helpless if the latter for any reason refuses to verify it even though it contains nothing but the facts. Therefore, the Legislature has deliberately laid down that the petition should be verified only if an attesting witness is procurable, that is, can be procured by the petitioner for the purpose of verification. If a petition is not verified by an attesting witness, the petitioner can always excuse himself on the ground that he could not procure any attesting witness to verify it. I, therefore, respectfully agree with the view expressed in Rama Sinha v. Murtibai, 68 Ind Cas 940 : (AIR 1923 Nag 41) (A), that the provision in S. 281 is merely directory and not mandatory, i.e., noncompliance with it was not intended to lead to the rejection of the petition.”

24. To counter the contention of the appellants that the non-examination of the doctor creates a doubt about the execution of the WILL, learned counsel for the respondent No.1 relies upon the judgment of the Hon’ble Supreme Court of India in the case of Madhukar D. Shinde vs. Tarabai Aba Shedage reported in (2002) 2 SCC 85 paragraph-15 of which reads as under:- 15 M.A. No.71 of 2023 “15. Other reasonings of the trial court and the first appellate court, for holding the will not proved, too, to say the least, verge on absurdity. Bhagubai died a day after the execution and registration of the will. There is nothing to show that Bhagubai was physically or mentally incapacitated from executing the will. On the one hand, the courts below have questioned the propriety of the Sub-Registrar having come to the house of Bhagubai for registering the will on the ground as to why Bhagubai could not have gone to the office of the Registrar on an assumption that she was fit to do so and yet the mental capacity of Bhagubai to execute the will has been doubted. The two attesting witnesses have been held to be “interested” on the ground of their being classfellows of Chingubai’s son and on the other hand, it has been doubted whether they would have known and identified the executant. There is nothing to doubt the mental and physical capacity of Bhagubai but the same has been suspected because of “complete absence of any medical evidence, of a doctor which would show that the testator was in a sound and disposing state of mind”. There is no rule of law or of evidence which requires a doctor to be kept present when a will is executed. In short, the courts below have allowed their findings to be influenced by such suspicion and conjectures as have no foundation in the evidence and have no relevance in the facts and circumstances of the case and unwittingly allowed their process of judicial thinking to be vitiated by irrelevant reasonings and considerations. The weighty factor that the factum of execution of the will by Bhagubai was being denied by a rank trespasser without raising any specific pleadings and the fact that no relation of Bhagubai has chosen to lay a challenge to the will, have been simply overlooked. In our opinion, the High Court ought not to have sustained such a perverse finding which would result in the property of a rightful owner being lost to a trespasser.” (Emphasis supplied)

25. To counter the contention of the appellants that the testatrix did not have ownership in respect of the property which was the subject matter of the WILL is concerned, learned counsel for the respondent No.1 submitted that the jurisdiction of the probate court is limited being confined only to consider the genuineness of the WILL and a question of title arising under the act cannot be gone into in the probate proceedings and in this respect, learned counsel for the respondent No.1 relies upon the judgment of the Hon’ble Supreme Court of India in the case of Krishna Kumar Birla vs. Rajendra Singh Lodha & Others reported in (2008) 4 SCC 300 paragraph-57 of which reads as under:- “57. The 1925 Act in this case has nothing to do with the law of inheritance or succession which is otherwise governed by statutory laws or the custom, as the case may be. It makes detailed provisions as to how and in what manner an application for grant of probate is to be filed, considered and granted or refused. Rights and obligations of the parties as also the executors and administrators appointed by the court are laid down therein. Removal of the existing executors and 16 M.A. No.71 of 2023 administrators and appointment of subsequent executors are within the exclusive domain of the court. The jurisdiction of the Probate Court is limited being confined only to consider the genuineness of the will. A question of title arising under the Act cannot be gone into the (sic probate) proceedings. Construction of a will relating to the right, title and interest of any other person is beyond the domain of the Probate Court.” (Emphasis supplied)

26. In this respect, learned counsel for the respondent No.1 also relies upon the judgment of the Hon’ble Supreme Court of India in the case of Kanwarjit Singh Dhillon vs. Hardyal Singh Dhillon & Others reported in (2007) 11 SCC 357 paragraphs-11 and 12 of which read as under:- “11. As noted hereinearlier, the suit for declaration of title and injunction has been filed by the appellant inter alia on the allegations that the suit properties are joint family properties of HUF of which the appellant and his two brothers Hardyal Singh Dhillon and Harbans Singh Dhillon, mother Surjit Kaur and unmarried daughter Amarjit Kaur are members. It has also been claimed by the appellant in the suit that by utilising the income from the ancestral agricultural land, various properties including the suit properties were acquired. Such being the allegations made in the plaint which can only be decided on trial after parties are permitted to adduce evidence in respect of their respective claims, it is difficult to hold that only because probate of the will of late S. Kirpal Singh has been granted, the suit for title and injunction must be held to be not maintainable in law. It is well- settled law that the functions of a Probate Court are to see that the will executed by the testator was actually executed by him in a sound disposing state of mind without coercion or undue influence and the same was duly attested. It was, therefore, not competent for the Probate Court to determine whether late S. Kirpal Singh had or had not the authority to dispose of the suit properties which he purported to have bequeathed by his will. The Probate Court is also not competent to determine the question of title to the suit properties nor will it go into the question whether the suit properties bequeathed by the will were joint ancestral properties or acquired properties of the testator. 12. In Chiranjilal Shrilal Goenka v. Jasjit Singh [(1993) 2 SCC 507] this Court while upholding the above views and following the earlier decisions of this Court as well as of other High Courts in India observed in para 15 at SCC p. 515 which runs as under: “15. In Ishwardeo Narain Singh v. Kamta Devi [AIR 1954 SC 280] this Court held that the court of probate is only concerned with the 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. Therefore, the in a probate proceedings relates to the genuineness and due execution of the will and the court itself is under duty to determine it and preserve the 17 M.A. No.71 of 2023 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. This is clearly manifested in the fascicule of the provisions of the Act. The probate proceedings shall be conducted by the Probate Court in the manner prescribed in the Act and in no other ways. The grant of probate with a copy of the will annexed establishes conclusively as to the appointment of the executor and the valid execution of the will. Thus it does no more than establish the factum of the will and the legal character of the executor. Probate Court does not decide any question of title or of the existence of the property itself.” (emphasis supplied) That being the position and in view of the nature of allegations made in the plaint, we do not find any reason as to how the High Court as well as the civil court could come to a conclusion that after the probate of the will executed by late S. Kirpal Singh was granted, the suit for declaration for title and injunction on the above allegation could not be said to be maintainable in law. The High Court also while holding that the suit was not maintainable, in view of the probate granted of the will of late S. Kirpal Singh had relied on a decision of this Court, as noted hereinearlier, in Rukmani Devi [(1985) 1 SCC 144] . We are not in a position to agree with the High Court that this decision could at all be applicable in the facts and circumstances of the present case. A plain reading of this decision would not show that after the grant of probate by a competent court, the suit for title and permanent injunction cannot be said to be maintainable in law. What this Court held in that decision is that once a probate is granted by a competent court, it would become conclusive of the validity of the will itself, but, that cannot be decisive whether the Probate Court would also decide the title of the testator in the suit properties which, in our view, can only be decided by the civil court on evidence. It is true that the probate of the will granted by the competent Probate Court would be admitted into evidence that may be taken into consideration by the civil court while deciding the suit for title but grant of probate cannot be decisive for declaration of title and injunction whether at all the testator had any title to the suit properties or not.”

27. Regarding the jurisdiction of the probate court, learned counsel for the respondent No.1 relies upon the judgment of the Hon’ble Supreme Court of India in the case of Chiranjilal Shrilal Goenka (Deceased) through LRs. & Others vs. Jasjit Singh reported in (1993) 2 SCC 507 paragraphs-15 and 18 of which read as under:- “15. In Ishwardeo Narain Singh v. Smt Kamta Devi [AIR 1954 SC 280] this Court held that the court of probate is only concerned with the 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 18 M.A. No.71 of 2023 whether a particular bequest is good or bad is not within the purview of the probate court. Therefore the only issue in a probate proceedings 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. This is clearly manifested in the fascicule of the provisions of the Act. The probate proceedings shall be conducted by the probate court in the manner prescribed in the Act and in no other ways. The grant of probate with a copy of the will annexed establishes conclusively as to the appointment of the executor and the valid execution of the will. Thus it does no more than establish the factum of the will and the legal character of the executor. Probate court does not decide any question of title or of the existence of the property itself.

18. It is settled law that a decree passed by a court without jurisdiction on the subject-matter or on the grounds on which the decree made which goes to the root of its jurisdiction or lacks inherent jurisdiction is a coram non judice. A decree passed by such a court is a nullity and is non est. Its invalidity can be set up whenever it is sought to be enforced or is acted upon as a foundation for a right, even at the stage of execution or in collateral proceedings. The defect of jurisdiction strikes at the very authority of the court to pass decree which cannot be cured by consent or waiver of the party. In Bahadur Singh v. Muni Subrat Dass [(1969) 2 SCR 432] an eviction petition was filed under the Rent Control Act on the ground of nuisance. The dispute was referred to arbitration. An award was made directing the tenant to run the workshop up to a specified time and thereafter to remove the machinery and to deliver vacant possession to the landlord. The award was signed by the arbitrators, the tenant and the landlord. It was filed in the court. A judgment and decree were passed in terms of the award. On expiry of the time and when the tenant did not remove the machinery nor delivered vacant possession, execution was levied under Delhi and Ajmer Rent Control Act. It was held that a decree passed in contravention of Delhi and Ajmer Rent Control Act was void and the landlord could not execute the decree. The same view was reiterated in Kaushalya Devi (Smt) v. K.L. Bansal [(1969) 1 SCC 59 : AIR 1970 SC 838] . In Ferozi Lal Jain v. Man Mal [(1970) 3 SCC 181 : AIR 1970 SC 794] a compromise dehors grounds for eviction was arrived at between the parties under Section 13 of the Delhi and Ajmer Rent Control Act. A decree in terms thereof was passed. The possession was not delivered and execution was laid. It was held that the decree was nullity and, therefore, the tenant could not be evicted. In Sushil Kumar Mehta v. Gobind Ram Bohra (dead) through his Lrs. [(1990) 1 SCC 193 : JT 1989 (Suppl) SC 329] the civil court decreed eviction but the building was governed by Haryana Urban (Control of Rent and Eviction) Act (11 of 1973). It was held that the decree was without jurisdiction and its nullity can be raised in execution. In Union of India v. Ajit Mehta and Associates, Pune [AIR 1990 Bom 45 : (1989) 3 Bom CR 535] a Division Bench to which Sawant, J. as he then was, a member was to consider whether the validity of the award could be questioned on jurisdictional issue under Section 30 of the Arbitration Act. The Division Bench held that Clause 70 of the contract provided that the Chief Engineer shall appoint an engineer officer to be sole arbitrator and unless both parties agree in writing 19 M.A. No.71 of 2023 such a reference shall not take place until after completion of the works or termination or determination of the contract. Pursuant to this contract under Section 8 of the Act, an arbitrator was appointed and award was made. Its validity was questioned under Section 30 thereof. The Division Bench considering the scope of Sections 8 and 20(4) of the Act and on review of the case-law held that Section 8 cannot be invoked for appointment of an arbitrator unilaterally but Section 20(4) of the Act can be availed of in such circumstances. Therefore, the very appointment of the arbitrator without consent of both parties was held void being without jurisdiction. The arbitrator so appointed inherently lacked jurisdiction and hence the award made by such arbitrator is non est. In Ghellabhai case [ILR 21 Bom 336] Sir C. Farran, Kt., C.J. of Bombay High Court held that the probate court alone is to determine whether probate of an alleged will shall issue to the executor named in it and that the executor has no power to refer the question of execution of will to arbitration. It was also held that the executor having propounded a will and applied for probate, a caveat was filed denying the execution of the alleged will, and the matter was duly registered as a suit, the executor and the caveatrix subsequently cannot refer the dispute to arbitration, signing a submission paper, but such an award made pursuant thereto was held to be without jurisdiction.”

28. In this respect, learned counsel for the respondent No.1 then relies upon the judgment of a Division Bench of this Court in the case of Nakul Bedia & Another vs. The Union of India through the Secretary, Ministry of Surface Transport & Others reported in 2016 (4) JLJR 41. 29. Learned counsel for the respondent No.1 lastly submits that this appeal, being without any merit, be dismissed. 30. Having heard the rival submissions made at the Bar and after carefully going through the materials available in the record, the following four points crop up for determination in this appeal:- (i) Whether the probate application ought to have been dismissed by the learned court below for being barred by limitation? (ii) Whether the learned court below ought to have dismissed the probate application for the same being not verified by the witnesses of the WILL in terms of Section 275 read with 281 of the Indian Succession Act, 1925? (iii) Whether the learned court has committed a gross error by ignoring the fact that though the testatrix was admittedly having right, title and interest only on over 1.6 acres of land; mentioning the area of the land in the WILL as 2.05 acres made the WILL ineligible for being probated? (iv) Whether the learned court below ought to have disbelieved the execution of the WILL because of the suspicious circumstances surrounding the execution of the WILL?

31. Now, so far as the first point for determination as to whether the probate application ought to have been dismissed by the learned court 20 M.A. No.71 of 2023 below for being barred by limitation is concerned, in view of the principles of law discussed above, this Court has no hesitation in holding that no doubt the Article 137 of the Limitation Act, 1963 is applicable to probate proceeding but as has been held by the Hon’ble Supreme Court of India in the case of Kanwarjit Singh Dhillon vs. Hardyal Singh Dhillon & Others (supra) in paragraph-15 that the conclusion (c) of the Hon’ble Bombay High Court in the case of Vasudev Daulatram Sadarangani vs. Sajni Prem Lalwani (AIR 1983 Bombay 268) in paragraph-16; that such an application is for the court’s permission to perform a legal duty created by a WILL or for recognition as a testamentary trustee and is a continuous right which can be exercised at any time after the death of the deceased, as long as the right to do so survives and the object of the trust exists or any part of the trust, if created, remains to be executed. Hence, certainly the time period for start of the limitation as envisaged in Article 137 of the Limitation Act, 1963 cannot run from the date of death of the testator or testatrix as the case may be. More so because Article 137 of the Limitation Act, 1963 itself envisages that such period for limitation shall start from when "the right to apply accrues". Here, in this case undisputedly the right for recognition as a testamentary trustee for the petitioner survived by the time he filed the application for probate of the WILL and further the trust created by the WILL remained to be executed. Hence, in the considered opinion of this Court, the learned trial court has not committed any illegality by not holding that the application for grant of probate is barred by limitation. Hence, the first point for determination is answered in the negative. 32. So far as the second point for determination as to ‘whether the filing of the probate application without appending the format of verification as envisaged under Section 281 of the Indian Succession Act, 1925’ is concerned, in view of the reasoning mentioned by the Hon’ble Madhya Pradesh and Allahabad High Court as already indicated above in the foregoing paragraphs of this judgment, this Court has no hesitation in holding that the said provision contained in Section 281 is not mandatory in nature and in absence of it being mandatory in nature as one of the witnesses of the WILL has been examined as P.W.1- Akhilesh Gupta. Hence, in the considered opinion of this Court merely because the petition was not supported by the 21 M.A. No.71 of 2023 verification in the format prescribed in Section 281 of the Indian Succession Act, 1925, the learned trial court has not committed any error. More so because there is no material in the record to suggest that the attendance of such with procurable at the time of filing of the probate application. Hence, the second point for determination is answered in the negative. 33. So far as third point of determination as to Whether the learned court has committed a gross error by ignoring the fact that though the testatrix was admittedly having right, title and interest only on over 1.6 acres of land; mentioning the area of the land in the WILL as 2.05 acres made the WILL ineligible for being probated is concerned, it is a settled principle of law as has been held by the Division Bench of this Court in the case of Nakul Bedia & Another vs. The Union of India through the Secretary, Ministry of Surface Transport & Others (supra), para-6 of which defines the functions of the probate court as under: (a) “6. Xxxxx In view of the aforesaid decision, as has been held by the Hon’ble Supreme Court, function of the probate Court is as under:- to see that Will executed by the testator, (in the present case Lalo Devi) was actually executed by him/her ( in this case Lalo Devi) in a sound State of mind, without coercion or any undue influence, (b) Whether the Will was duly attested, (c) the genuineness of the Will and (d) due execution of the Will. This is the scope of the decision of a Probate Court and nothing beyond that; (vii) The Probate Court: (e) (f) is not competent to determine the question of title to the suit properties, the Probate Court has no power, jurisdiction and authority to go into the question whether suit properties which are bequeathed by the Will, are ancestral properties or self- acquired properties of the testator ( in the facts of the present case Lalo Devi). (g) The Probate Court can not decide any question of a title or existence of the property itself. (viii) Thus, in view of the aforesaid decisions, the Probate 19 Court while deciding a probate case should only establish the factum of the Will and the legal character of the executor, and the Probate Court has nothing to do with the title of the property or it has nothing to do how the testator acquired the property nor it has any power/authority/ jurisdiction to decide, whether the suit properties, as ancestral properties has mentioned in the Will or not. All theses questions could not have been decided by the Probate Court. xxxxX” Thus, the probate court while deciding the probate case is not to 22 M.A. No.71 of 2023 decide the legal character of the executor and probate court has got nothing to do with the title of the property. 34. It is also pertinent to mention here that by mere grant of a probate of a WILL itself do not create any title in respect of the property for which the WILL has been executed in favour of the executant of the WILL or the testator. Hence, in the considered opinion of this Court, the discrepancy in the description of the area of the property to be 1.06 acres as it ought to have been but 2.05 acres as has been mentioned in the WILL by itself; is not a valid ground to reject the prayer for probate of the WILL. Hence, in the considered opinion of this Court, the learned court below has not committed any error by granting the probate of the WILL in spite of the discrepancy in the description area of the land in respect of which the WILL was created. So, the third point for determination is also answered in the negative. 35. Now, coming to the fourth point for determination as to ‘whether the learned court below ought to have disbelieved the execution of the WILL because of suspicious circumstances surrounding the execution of the WILL,’ is concerned, true it is that when a WILL dislodges the natural succession certainly the person seeking the probate of such WILL has to prove due execution of the WILL. The two circumstances which were agitated by the learned counsel for the petitioner which creates a suspicion about the execution of the WILL are that:- (1) the presence of the petitioner at the time of registration of the WILL in the Sub Registrar’s Office creates a doubt over the same; and (2) non-examination of the doctor to establish that the testatrix was in a fit state of mind at the time of execution of the WILL creates a doubt. So far as contention of the appellant regarding non-examination of the doctor is concerned, in view of principle of law settled in the case of Madhukar D. Shinde vs. Tarabai Aba Shedage (supra), it is pertinent to mention here that there is no rule of law or of evidence which required the doctor to be kept present when a WILL is executed. So, merely because the doctor was not examined as a witness to show the mental status of the testatrix, the probate court, in the considered opinion of this Court has not committed any error by not being influenced by such suspicion merely because of the non-examination of the doctor. So far as the presence of the petitioner at the time of registration of the WILL is 23 M.A. No.71 of 2023 concerned, perusal of the WILL which has been marked Ext. 4 reveals that, in the last page, the photograph of the petitioner has been affixed and he has signed by the side of his photograph. It is pertinent to mention here that execution of a WILL and presentation of the same for registration is two separate acts. There is no material in the record to suggest that at the time of execution of the WILL by the testator, the petitioner was present or he signed the same. Of course, at the time of subsequent event of presenting the WILL which was already executed; for registration, the photograph of the petitioner was affixed to the WILL and he signed by the side of it. So, in the absence of any material which will conclusively establish that the petitioner was present at the time of execution of the WILL by the testatrix, certainly the same cannot be a justifiable ground to discard due execution of the WILL with independent mind by the testatrix uninfluenced by anybody. True it is that the filing of the petition for probate of the WILL with, the delay of more than three years after the death of the testatrix can be a ground for raising suspicion but the said suspicion has been cleared by the evidence that has come in the record that the petitioner was not in custody of the WILL immediately after the death of the testatrix and hence, sometime was consumed; in filing the probate application. So, in this backdrop, this Court is of the considered view that no illegality has been committed by the probate court in not discarding the WILL on the ground that the execution of the same being surrounded with suspicion. So, the fourth point of determination is also answered in the negative. 36. In view of the discussions made above, this Court finds that there is no merit in this appeal. Accordingly, the same is dismissed on contest but under the circumstances without any costs. 37. Let a copy of this judgment along with the lower court records be sent to the court concerned forthwith. High Court of Jharkhand, Ranchi Dated the 25th of July, 2023 AFR/ Animesh (Anil Kumar Choudhary, J.) 24