Testamentary disposition of property is deviation from natural line of inheritance in lesser or greater degree: Can it result in complete disposition in favour of one heir or exclusion of any other heir? Jhar HC throws light

Jharkhand High Court

Jharkhand High Court: Expressing that the due execution of a Will is to be proved as per the provisions of law as laid down in Evidence Act as well as that if Indian Succession Act,  Gautam Kumar Choudhary, J., remarked that, a probate court being a Court of conscience, the intention of the testator is paramount and it is the bounden duty of the Court to ascertain the real WILL of the testator if any.

Appellants preferred the present appeal against the order granting probate of Will executed by the testator in favour of his daughter (applicant) with respect to a land.

Applicant’s case was that the suit land was the self-acquired property of the testator who executed the Will.

It was asserted that the Will was executed out of free will and in perfect health.

Though the objector’s (son) case was that the testator never executed any Will and the said Will was forged and fabricated.

Analysis, Law and Decision

High Court expressed that a probate court is not competent to determine the title of schedule property.

Additionally, the Court observed that,

The jurisdiction of a probate court is limited to determination that the will executed by the testator was his last will. Whether he had right to execute the will with respect to the schedule property is beyond the scope of the court considering a probate application.

In the Supreme Court decision of Kanwarjit Singh Dhillon v. Hardyal Singh Dhillon, (2007) 11 SCC 357, it was 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 only issue in a probate proceeding 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”. 

Further, the Bench added that,

Testamentary disposition of property is deviation from natural line of inheritance in lesser or greater degree. It may result in complete disposition in favour of one of the heirs of the testator or it may even be in complete exclusion of any of the heir.

In view of the facts and circumstances of the case, Court affirmed the lower Court’s order. [Neelam Singh v. Sudha Sinha, Misc. Appeal No. 123 of 2012, decided on 10-3-2022]


Advocates before the Court:

For the Appellants: Mr. Anil Kumar Sinha, Advocates

For the Respondents: M/s A.K. Das & Swati Shalini, Advocates

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