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Non-Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.5822 OF 2005

Pasupati Nath Das (dead) …...Appellants

Versus

Chanchal Kumar Das (dead) by L.Rs. and Ors. ..…Respondents

J U D G M E N T

Uday Umesh Lalit, J.

1. This  appeal  challenges  the  correctness  of  the  judgment  and  order

dated 4th February, 2005 passed by the Division Bench of the High Court at

Calcutta in Original Side Appeal No. 60 of 1984.

2. One Nandlal Das, husband of Shyama Sundari Dassi and father of two

sons Kanailal Das and Pasupati Nath Das executed a Will on 12th April, 1963

in respect of properties owned and possessed by him.  Schedule to the Will

comprised of three parts.  Properties mentioned in Part I and Part II of the

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Schedule were given to the family deity Sri Jugal Kishore Jew known as Sri

Shyamaji  at  Tarapith temple of  which deity the Testator  was the shebait.

Thus, properties mentioned in Parts I & II were to be Trust properties while

properties mentioned in Part III were to be devised in accordance with the

Will.  Said Parts I, II and III of the Schedule to the Will were as under:

“ Part-I

1. Garden house and land at Behalf known as “Nafar Kanan” being Holding No.19, Nafar Chandra Das Road, Behalf in the  district  of  24-Parganas  together  with  Tank  trees, structures etc.

2. All  that  two storied premises  No.10/1/3  Jagannath  Sarkar Lane,  Kidderpore  in  the  district  of  24-Parganas,  on  part whereof the same is erected.

3. All  that  brick  built  messuage  land  and  premises  being No.1/3,  Asha Babu Lane,  Kidderpore in the district of 24 Parganas together with the land etc.

4. All that land and premises at 565 Diamond Harbour Road, Behalf  in  the  district  of  24 Parganas  which property  was purchased  by  me  in  the  benami  name  of  my  wife  (Smt. Shyama  Sundari  Dassi)  together  with  the  structures  and sheds.

5. Land  and  tank  adjoining  the  above  premises  No.565 Diamond Harbour Road being portion of Holding No.19/2 Kamarpara Road in Behala in the district of 24 Parganas.

6. All that brick built two storied messuage land and premises being No.55/2 Turff Road at Bhowanipore in the district of 24 Parganas purchased by me in the benami name of my wife (Smt. Shyama Sundari Dassi).

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Part-II

1. Several Plots of land at Tarapith in Rampurhat in the district of Birbhum including agricultural  land measuring about 2 Bighas and homestead land purchased by me in the benami name  of  my  wife  (Smt.  Shyama  Sundari  Dassi)  and  the buildings  constructed  on  the  homestead  land  measuring about 3 ½ Bighas.

2. One Plot of land at Tarapith in Rampurhat in the district of Birbhum purchased by me in my own name.

Part-III

1. All that garden house and premises at Jasidih in the district of  Santhal  Paraganas  in  Bihar  purchased  by  me  in  the benami name of my wife Smt. Shyama Sundari Dassi.

2. Tenancy  right  in  premises  No.157A,  Dharamtolla  Street, together  with  pucca  structures  corrugated  Tin  sheds constructed by me at my own and costs upon the greater part of the said land.

In Witness whereof I have hereunto set my hand this 12th day of April one thousand nine hundred and sixty three. …”

3. Nandlal Das died on 1st December, 1964 leaving behind his widow

and two sons.   On 7th March,  1966 Kanailal  Das  died  childless,  leaving

behind his widow Smt. Purnima Rani Dassi.  On 3rd June, 1967 the other son

Pasupati  Nath Das,  the present  appellant,  as Executor named in the Will

dated 12th April,  1963 applied for grant  of Probate of said Will  by filing

Probate Case No. 101 of 1967 in Calcutta High Court.  A joint caveat was

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filed by Shyama Sundari Dassi and Purnima Rani Dassi.  It was alleged that

by subsequent Deed of Revocation dated 15th October, 1963 the aforesaid

Will had stood revoked.  The application for grant of Probate of the Will of

Nandlal Das, being a contentious cause was numbered as Testamentary Suit

No. 6 of 1971.

4. Shyama Sundari Dassi thereafter executed a registered Will  on 12th

October, 1973.  It was stated therein that she did not want her estate to go

into the hands of her younger son, the appellant; that while her husband was

alive he had cancelled and nullified the Will dated 12th April, 1963 being

displeased with the behavior of said son and his family; that the estate left

behind by her husband devolved equally on her and two sons; that she had

received large sum of cash and ornaments from her sister and brother-in-law

and that the properties mentioned in the Schedule to the said Will were her

properties.  By said Will, she appointed one Harendra Nath Das, Manager of

the estate to be the Executor, and stated that after her death one Menoka

Rani Dasi, her brother’s wife and Harendra Nath Das would get equal shares

in the property.  The list of properties mentioned in Schedules Ka, Kha and

Ga to the Will dated 12th October, 1973 were as under:

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“List of Properties included in Schedule   Ka

My undivided ½ share in the properties mentioned 1st, 2nd, 3rd and 4th clauses of schedule Ka.

1. The premises No. 157A, Dharamtolla Street in the town of Calcutta including the tenancy right and together the business  styled  as  the  Indo-British  Motor  Industries situated in the said premises and the interest in the said business.

2. No. 10\1\3, Jagannath Sarkar Lane, Kidderpore, Calcutta- 23, District 24 Parganas – Three storied masonry house and the land thereunder.

3. No. 1\3A, Ashu Babu Lane, Kidderpore, Calcutta, District 24  Parganas  –  Fallow  land  and  the  incomplete construction thereon.

4. The garden house at Behala known as Nafar Kanan (and) the  trees,  rank  and  construction  on  it,  Holding  No.11 Nafar Das Road Behala.

5. Indu Bhaban, Jasidih, Santhal parganas, Bihar.  The said Indu  Bhaban  is  the  property  purchased  with  my  own money.

Introduction of the properties in Schedule   Kha

1. District  Birbhum,  Police  Station,  Chowki  and  Sub- Registry Rampurhat, Mouza Kamdebpur, J.L.No.61 Touzi No.15,  Khatian No.81,  Dag No.9 within the said dag a plot  of  land measuring 34 decimals proportionate  Jama Rs.2.19 Paises Sthitiban-Venue Rs.100/-.

2. Mouza same,  Khatian No.64,  present  Khatian 87,  Dag No.7 the area of the land 20 decimals, proportionate jama. 62 paises, Sthitiban value Rs.300/-.

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3. Mouza Kamdebpur, Khatian No.60, present No.86.  Dag No.8  homestead  .5  decimals  Dag  No.  8\300  danga  04 decimals Total 9 decimals only proportionate jama.  25 Paises Sthitiban value Rs.200/-.

4. In  the  district  of  Birbhum  under  the  police  Station, Chowki and sub-Registry Rampurhat within the limits of Mouza  Chandipur,  J.L.No.62,  Touzi  No.477,  Khatian No.130, present Khatian No.322, Dag No.748, House 07 decimals  and  the  pucca  house  etc.  standing  thereon including  the  fixtures  proportionate  jama.   25  Paises, Raiyat Sthitiban value Rs.2210/-.

5. Mouza  same,  Khatian  No.136,  present  Khatian No.308,Dag  No.902,  North  Pratap  Doyen  .16  decimals out  of  .32  decimals  Dag  No.184,  8  as  share  in  111(?) decimals  .5  decimals,  Dag  No.67,  Garh  Layak  Follow (land)  out  of  .8  decimals,  8  as.   Share  in  this  right,  4 decimals total 29 decimals only proportionate rent 10 as. 3 pies, Raiyat Sthiban value Rs.700/-

6. Mouza same, Khatian No.281, present No.321, Dag No.8, Danga out of .42 decimals 8 as.  Share in this right .21 decimals, Dag No.799, homestead, out of .08 decimals 8 as.  Share in the right .04 decimals.  Total .25 decimals only  proportionate  jama  9  as.   Raiyat  Sthiban  –  value Rs.600/-.

7. District  as  aforesaid  included  in  Mouza  Kadebpur, J.L.No.61,  Khatian  No.16,  present  No.5,  Danga  .94 decimals,  dag  No.  74  double  crop  yielding  land  115 decimals, Total Rs.2.09 paises.  Sthiban – value Rs.900/-

8. Mouza same, Khatian No.63, Present Khatian No.89, Dag No.6 Dahar Saiyam out of .11 decimals the share in this right, out of 14 decimals 1/3rd share .5 five decimals only proportionate jama. 8.p.Total jama 4 as. Sthitiban – value Rs.200/-.

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Landlond West Bangal Government, Schedule   Ga

1. District  Birbhum,  Police  Station  Chowki,  Sub-Registry Rampurhat, Mouza Jamshedpur, J.L. No.61, Touzi No.15, Khatian No.63, present Khatian No.89, Dag No.6, North Behar,  out  of  .16  decimals  .31  decimals,  proportionate rent .01 P. Total jama .25 P.  Value Rs.25/-

2. District 24 Parganas, Sub-Registry Behala, Police Station Behala.   Diamond Harbour  Road,  Holding No.308  and Holding No.314, House No. 565, area 2 Bighas together with the factory standing on including (illegible) shed and adjoining boundary and land including some brick built pucca  factory  premises  having  tin  and  asbestos  on  the roof, privy, urinals, all the iron gates and the rooms under the  occupation  of  the  durwans  including  fittings  and fixtures.

To this  import  in  own accord having full  sense  and without  being  instigated  by  others  the  deed  has  been written in accordance with my own directions.   Having understood I sign and execute this will or last testament. Finis  25th Aswin,  1380  B.S.  corresponding  to  English Calendar 12th October, 1973.”

5. In  Testamentary  Suit  No.  6  of  1971,  Shyama  Sundari  Dassi  and

Harendra Nath Das gave evidence.  By order dated 19th September, 1975

Single Judge of the High Court granted Probate of the will dated 12th April,

1963 of Nandlal Das in favour of Pasupati Nath Das.  On 22nd September,

1975 Shyama Sundari Dassi died.  Appeal No.371 of 1975 was thereafter

filed  by  Harendra  Nath  Das  against  the  aforesaid  judgment  dated  19th

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September, 1975.  Further, an application for grant of Probate of the Will

dated 12th October, 1973 executed by Shyama Sundari Dassi was filed by

Harendra Nath Das and Menoka Rani Dassi.  Since a caveat was filed by

Pasupati  Nath  Das  and  the  matter  was  contested,  it  was  numbered  as

Testamentary Suit No.8 of 1976.   

6. In Testamentary Suit No.8 of 1976, following issues were framed by

Single Judge of the High Court

“i) Was the Will dated October 12, 1973 duly executed and attested?

ii) Is the Will dated October 12, 1973 genuine?

iii)   a)  Did  the  testatrix  Shyama  Sundari  Dassi  have testamentary   capacity to execute Will?  

b) Did the testatrix suffer from Senile Dementia at the time of execution of the Will?

iv) Was the Will executed under undue influence exercised by Harendra Nath Das?

v) To what relief, if any, the propounder is entitled?

7. On  14th October,  1982,  the  Division  Bench  of  the  High  Court

dismissed Appeal No.371 of 1975 and confirmed the judgment and decree

dated 19th September, 1975 passed in Testamentary Suit No. 6 of 1971.

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8. On 27th February,  1984 Single  Judge  of  the  High Court  dismissed

Testamentary Suit No.8 of 1976 in which the grant of Probate of the Will

dated 12th October, 1973 of Shyama Sundari Dassi was sought.  Issues i), ii)

and iiib) were found in favour of the propounders of the Will while issues

iiia) and iv) were answered against  said propounders.  This decision was

challenged by Harendra Nath Das and Menoka Rani Dassi by filing Appeal

No. 60 of 1984 before the Division Bench of the High Court.  

9. Since there was no cross appeal, only two issues namely iiia) and iv)

were required to be considered by the Division Bench.  After going through

the entirety of the matter the Division Bench accepted the appeal.  On facts it

was found that there were no suspicious circumstances and that the testatrix

was in sound disposition of mind at the time of the execution of the Will.

The Division Bench observed as under:

“……….The fact remains that the solicitor was called at the residence and the doctor was present.  There is no allegation of threat being given to the lady.  There is no material to show that there was any occasion for the testatrix to execute the Will in  favour  of  Harendra Nath to  purchase  peace.   There  is  no material  to  show  that  Harendra  Nath  had  exploited  the sentiment of the lady or otherwise had exerted any force or fear or had given any hopes.

…………………………

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……….The  signature  on  each  page  and  the  signature  of  all corrections  are  also  indicative  of  the  fact  that  she  knew the contents of the Will.  The Will was read over and explained to her  and  she  had  signed  in  the  presence  of  the  attesting witnesses,  which  have  since  been  so  found  by  the  learned Single Judge… … …”

Directing  that  Probate  as  prayed  for  be  granted,  the  appeal  was

allowed by judgment and order dated 4th February, 2005, which decision is

presently under appeal.   

 10. During  the  pendency  of  this  appeal,  both  Pasupati  Nath  Das  and

Harendra Nath Das expired.  The heirs of deceased Harendra Nath Das were

brought on record.  Interlocutory Application Nos.5 and 8 seeking to bring

the heirs of the deceased Pasupati Nath Das on record are allowed.  One of

the legal representatives of deceased Pasupati Nath Das is no more, and his

legal representatives are sought to be brought on record vide Interlocutory

Application No.11156 of 2018.  Said application is also allowed. Cause title

shall stand amended accordingly.

11. We heard Mr. Raja Chatterjee, learned Advocate for the appellants and

Mr. Ajay Kumar Gupta, learned senior advocate for the respondents.  It was

submitted  by  Mr.  Chatterjee,  learned  Advocate  that  under  the  Will  of

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Nandlal Das, properties mentioned in Parts I and II of the Testament were

given in charity while those mentioned in Part III were given absolutely in

favour of his two sons and Shyama Sundari Dassi, the widow, was given

only a life estate and right of maintenance.  Therefore, according to him,

Shyama Sundari  Dassi  could not  have dealt  with those  properties  which

were inherited from her husband.  These submissions were countered by Mr.

Ajay  Kumar  Gupta,  learned  Senior  Advocate  who  submitted  that  very

comparison of  properties  mentioned in  respective  Schedules  to  the  Wills

would show that there were various properties which belonged to Shyama

Sundari Dassi in her individual capacity and that she was entitled to dispose

of the same by executing a Will.

 12. We must, at the outset, say that the scope of the matter arising from

Probate proceedings is very limited.  The scope of the matter is primarily

and principally regarding the genuineness of the execution of the testament

or Will.  This part has been succinctly dealt with in a decision rendered by

this Court in Krishna Kumar Birla v. Rajendra Singh Lodha and Others.1.

Paragraphs 57,  66 and 67 of  the said decision spell  out the scope of  the

enquiry in Probate proceedings as under:

1 (2008) 4 SCC 300

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“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 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 by us)

… … … … … …

66. We may, however, at the outset,  notice a decision of this Court  in  Elizabeth  Antony v.  Michel  Charles  John  Chown Lengera (1990) 3 SCC 333 which is binding on us. Therein, the testatrix  viz.  one  Mary  Aline  Browne,  was  the  wife  of  one Herbet Evander Browne, the eldest son of John Browne. Mary died on 28-3-1972. She had executed a will on 12-3-1962. An application for grant of a letter of administration with a copy of the  will  annexed  was  filed  by  Michel.  Petitioner  Elizabeth Antony and her husband Zoe Enid Browne filed caveats on the plea that the said will was a forged document. The petitioner therein also claimed that her daughter Browne had executed a will on 23-6-1975 and she had executed a deed of gift in favour of the petitioner. She also claimed herself to be a trustee of John Browne  Trust.  The  Probate  Court  held  that  they  had  no caveatable interest. Caveatable interest, therefore, was claimed as an executor and legatee of the will executed by Zoe Enid Browne as also a deed of gift in respect of one item of the estate executed in their favour. Caveatable interest was also claimed on the premise that  the petitioner was appointed a trustee of John Browne Trust. This Court noticed a large number of High

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Court  judgments.  It  was,  however,  opined that  the  petitioner therein failed to establish a caveatable interest stating: (SCC p. 336, para 6)

“6. … We have perused the entire order of the trial court in the context. Admittedly neither the original nor a copy of the will said to have been executed by Zoe Enid Browne, was filed. Now coming to the trust, it is in the evidence of PW 1 that John Browne Trust has come to an end in March 1972 and the same was not in existence. The trial court has considered both the documentary and oral evidence in this regard and has rightly held that the petitioner has no existing benefit from the trust. Likewise the registered gift deed or a copy of it has not been filed. Before the learned Single Judge of the High Court also same contentions were put  forward. The learned Judge observed that from the objections filed by the caveator she desires the court in the probate proceedings to uphold her title on the strength of a gift deed and the trust deed. It is observed:

‘Equally, the petitioner has not placed before the court the will dated 23-6-1975 stated to have been executed by Zoe Enid Browne to establish that under the will dated 12-3-1962 stated to have been executed by Mary Aline Browne some interest given to the petitioner under the will dated 23-6-1975 of Zoe Enid Browne,  is  liable  to  be  in  any  manner affected or otherwise displaced, by the grant of letters of administration in respect of the will  dated  12-3-1962  stated  to  have  been executed by Mary Aline Browne.’

Accordingly,  the  learned Judge held that  the petitioner has not established that she has a caveatable interest justifying her opposition to the probate proceedings for grant of letters of administration. In this state of affairs, we are unable to agree

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with  the  learned  counsel  that  the  petitioner  has  caveatable interest.”

This  Court,  thus,  categorically  opined  that  while  granting  a probate, the court would not decide any dispute with regard to title. A separate suit would be maintainable therefor. If probate is granted, they have a remedy in terms of Section 263 of the 1925 Act also.

67. In  the  recent  judgment  of  Kanwarjit  Singh  Dhillon v. Hardyal Singh Dhillon (2007) 11 SCC 357 this Court inter alia relying upon Chiranjilal Shrilal Goenka v.  Jasjit Singh (1993) 2 SCC 507  and upon referring to a catena of decisions of the High Court and this Court, held that the Probate Court does not decide any question of title or of the existence of the property itself.” (Emphasis by us)

13. We,  therefore,  confine  ourselves  only  to  the  issue  whether  the

execution of the Will of which Probate is prayed for has been satisfactorily

proved and whether there are any suspicious circumstances impinging upon

the execution of the Will.  Out of four issues, three were answered in favour

of the propounders of the Will by the Single Judge wherefrom no appeal was

preferred.  The matter was thus limited in scope before the Division Bench

which,  in  any  case,  has  answered the  other  issues  also  in  favour  of  the

propounders of the Will.  Having gone through the judgment under appeal,

we do not see any reason to take a different view in the matter nor has any

ground been made out to upset the decision under appeal.  

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14. We, thus, confirm the decision of the Division Bench.  All the issues,

including those whether the properties in respect of both the Schedules are

identical or not will have to be raised and dealt with in properly instituted

proceedings.   Reserving all those rights, we dismiss the present appeal.  No

costs.

………………………….J. (Uday Umesh Lalit)

…………………………..J. (Ashok Bhushan)

New Delhi; September 25, 2018.