Judgment:
ORDER
Anand Byrareddy, J.
1. Probate Civil Petition No. 4/1989 is tiled in the matter of the last will and testament of Mrs.Hildred Joyce Faithful, by the second executrix named under her will dated 17.11.1987 for grant of probate. Mrs. Faithful is said to have died on 31.10.1988. The petition was admitted on 10.3.1989 and a citation was taken in the English Daily 'Deccan Herald', Bangalore, on 31.3.1989. None had come forward to oppose the grant of probate. Accordingly, by an order dated 16.6.1989, this court had granted probate as prayed for.
In July 1990, one Rev. Benjamin Dorairaj tiled a petition under Section 301 and 302 of the Indian Succession Act, 1925 (hereinafter referred to as the 'Act' for brevity) to remove the Executrix on the ground that she was illegally attempting to dispose of the properties of the testatrix, in collusion with certain third-parties. This was registered as Probate CP 4/1990.
2. During the pendency of the above, one Lt.Col.Richard Charles Menassae (Retd.) filed Probate C.P. 16/1990 seeking, revocation of probate on the ground that he was the real brother of the first Executrix Ms.Gerlrude June Dalby (who had died prior to filing of Prob.CP 4/1989) and who was described as the cousin of Mrs. Faithful and hence he was the nephew of Mrs. Faithful and was a necessary party to the proceedings and further that since the testatrix died within 12 months from the date of execution of the will, the same was not deposited within six months from the date of execution etc., and had sought for revocation of die probate.
The Executrix herself had filed several applications in March 1990 in I.A.I. to IV, to re-open the case and to modify the order granting probate (IA-I), to amend the petition (IA-II), to seek clarification that the will granting the several properties to charitable organizations was void and not binding on her (IA-III), for stay of the order dated 16.6.1989 (IA-JV), and that the bequests made under the will were hit by Section 118 of the Act (IA-V).
3. These applications having come up for orders, this court held that IA-V was in effect for revocation of the grant of probate and hence directed that the same be suitably amended or fresh proceedings be initiated for revocation of probate.
Thereafter, IA-V was considered along with Prob.CP 16/1990 and were dismissed on 31.10.1996 by a reasoned order. Against this common order, appeals were preferred in OSA 1/1997 and OSA 4/1997. The said appeals have been dismissed by orders dated 12.8.1998 and 2.9.2006, respectively.
Probate CP 8/1999 and Prob.CP 10/1999 are preferred by the same petitioner, in the first of the petitions, the relief sought is lor revocation of the grant of probate in favour of the petitioner in Prob.CP 4/1989. It is contended that the husband of the testatrix Joseph Alexander Faithful, who pre-deceased his wife, died on 25.1.1985. The Faithful were permanent residents of Bangalore. It is stated that Joseph A.Faithful, husband of the testatrix, had a brother James Mieheal Faithful. The petitioner claims to be the daughter of the said James M.Faithful and the niece of Joseph A.Failhful and falls within the degree of kindred or consanguinity as computed in Schedule I of the Act, read with Section 24 - 28 of the Act. A geneological table of the Faithful Family is produced. And it is also sought to be demonstrated that the testatrix and Joseph A.Failhful are first cousins, being the children of two sisters with a common ancestor, their maternal Grand lather - therefore the petitioner is also related to the testatrix from her mother's side. A geneological table to demonstrate this is also produced.
The petitioner claims as the Faithfuls died issuless, the petitioner and her sister Marie Grace are entitled to succeed to the estate of Joseph Alexander Faithful and his widow, the testatrix.
4. It is stated that Mr.Faithful was die owner of several properties including No. 20, Cubbon Road, Bangalore - 560 001. Mr.Faithful having died intestate, the properties devolved on his widow to an extent of half-share as well as on the petitioner and her sister as per Section 33 of the Act. Mrs.Faithful had a right over those properties only to an extent of hall-share and the other half left to the share of the petitioner and her sister. Hence it is contended that Mrs.Faithful had no competence to bequeath more than half-share of the properties left behind by Mr.Faithful. Accordingly, revocation of Probate is sought. Oral evidence is tendered in support of the contentions through a Power of Attorney holder of the petitioner.
5. In Prob.CP 10/1999, it is contended that the will has been held to be proved in common form since the petitioner and her sister were not shown as parties - if they had been so shown, the will would have to be pawed in solemn form - therefore the proceedings are defective. That the will has failed on account of Section 118 of the Act. That the Executrix herself having filed IA-V in Prub.CP 4/1989 indicates an oblique motive in herself seeking revocation of the Probate and therefore, ought to be removed and hence seeks removal of the named Executrix and appointment of another in her stead.
6. Heard Shri Padmanabha Mahle, Senior Advocate appearing for the Counsel for the petitioner and the Counsel for the respondents in Prob.CP 8/1999 and Prob.CP 10/1999.
Shri. Mahle reiterated the circumstances to contend that the bequest was invalid as the testatrix was incompetent to bequeath the entire properly which had been left behind by her husband who had died intestate. This circumstance according to Shri Mahle is a just cause for revocation of the grant of probate in terms of Section 263 of the Act as the proceedings to obtain the grant were defective in substance. It is further contended that the grant of probate having been made on 16.6.1989 - the bequest under the will was a void bequest under Section 118 of the Act. And not withstanding the subsequent repeal of Section 118, the grant of probate in respect of a void will would render the same valid which cannot be countenanced and therefore the grant of probate be revoked.
It is further contended that the will is suspicious and a got up document and this is apparent from the fact that at one place in the will a bequest made in favour of a servant stales that it would lake effect alter the death of herself and her husband, when her husband was already dead and therefore renders it a suspicious document.
Reliance is sought to be placed on the following authorities: Mrs. Nalini Navin Bhagwati v. Chandravadan M. Mehta : AIR 1997 SC 1055 - to support die contention that the application for revocation be considered as a miscellaneous application and not as a suit.
Harsh Dhingra Sant Kumar v. State of Haryana : (2001)9 SCC 550 - wherein the Supreme Court has explained the doctrine of Prospective overruling and its application - this is sought to be cited to contend that Section 118 be applied to hold that the bequest under the will is void and to revoke the grant.
Chiranjilal Shrilal Goenka v. Jasjit Singh : (1993) 2 SCC 507, to support the contention that the probate court alone has exclusive jurisdiction to adjudicate upon the proof or validity of the will propounded by die Executrix.
7. Per contra, the Counsel for the respondents would contend that none of the grounds urged in the petitions merit consideration for revocation of the grant of probate. Though a vague allegation is made of the will being suspicious and a got-up document at the time of final hearing, no such ground is raised or substantiated in the petitions. The primary ground for revocation of the grant of probate is to establish that the will was not genuine and valid - in the absence of such a challenge, there is no basis for the petition. Further, the bequest being hit by Section 118 of the Act cannot be the ground for revocation of the will. The scope of Probate proceedings is restricted to the consideration of the genuineness of the will, its valid execution and the competence of the executor to be granted probate. The question of title to the properly or even its very existence are not the subject matter of enquiry. So also the competence or otherwise of a testator to make a bequest would remain outside the scope of the proceedings and is not a ground for revocation of probate.
8. Insofar as non-citation of the petitioner who is said to be niece of the testatrix - reliance is placed on a decision of the Supreme Court in Anil Behari Ghosh v. Latika Bala Dassi : AIR 1955 SC 566, wherein it is held that the omission to issue citation to persons who should have been apprised of the probate proceedings may well be in a normal case a ground by itself for revocation of the grant. But this is not aft absolute right irrespective of oilier considerations arising from the proved fats of a case. The court may refuse to grant annulment in cases where there is no likelihood of proof being offered that the will be admitted to probate was either not genuine or had not been validly executed. Hence, it is prayed that the petitions in Prob.CP 8/1999 and Prob.CP 10/1999 be dismissed.
In Prob.CP 4/1990, there is no representation by Counsel. The petitioner claiming in the capacity of the presbyter-in-charge of St.Pauls Cathedral claims as a residuary legatee and alleges suspicion of the Executrix's motives and seeks her removal.
9. In the above circumstances, the questions to be considered is whether the petitioner in Prob.CP 8/1999 and Prob.CP 10/1999 has made out a case for revocation of probate and removal of the Executrix on the grounds urged.
Firstly, it is to be noted that there is no ground urged in either of the petitions questioning the genuineness of the will or the valid execution of the same. It then requires to be seen whether any of the circumstances referred to in Section 263 of the Act are present. We may usefully extract Section 263(b) for ready reference.
263. Revocation or annulment for just cause.- The grant of probate or letters of administration may be revoked or annulled for just cause.
Explanation: Just cause shall be deemed to exist where
(a) the proceedings to obtain the grant were defective in substance: or
(b) the grant was obtained fraudulently by making a false suggestion, or by concealing from the Court something material to the case; or
(c) the grant was obtained by means of an untrue allegation of a fact essential in point of law to justify the grant, though such allegation was made in ignorance or inadvertently; or
(d) the grant has becomes useless and inoperative through circumstances; or
(e) the person to whom the giant was made has willfully and without reasonable cause omitted to exhibit an inventory or account in accordance with the provisions of chapter VII of this Part, or has exhibited under that Chapter an inventory or account which is untrue in a material respect.
Illustrations
(i) The Court by which the grant was made had no jurisdiction.
(ii) The grant was made without citing parties who ought to have been cited.
(iii) The will of which probate was obtained was forged or revoked.
(iv) A obtained letters of administration to the estate of B, as his widow, but it has since transpired that she was never married to him.
(v) A has taken administration to the estate of B as if he had died intestate, but a will has since been discovered.
(vi) Since probate was granted, a later will has been discovered.
(vii) Since probate was granted, a codicil has been discovered which revokes or adds to the appointment of executors under the will.
(viii) The person to whom probate was, or letters of administration were, granted has subsequently become of unsound mind.
10. From a reading of Explanation Clause (a) and illustration (ii), it may be that the expression 'defective in substance' would include omission to issue citations to persons who should have been apprised of the probate proceedings, but as held by the Supreme Court in Anil Behari Ghosh's case supra, the court may refuse to grant annulment in cases where there is no likelihood of proof being offered that the will admitted to probate was either not genuine or had not been validly executed.
Insofar as the challenge to the grant of probate on the ground of the bequest being a void bequest under Section 118 of the Act is concerned, the said section stands repealed. The contention that the section ought to be held to apply in view of the order of grant of probate was made when the section was on the statute book, by applying the doctrine of prospective overruling is a proposition put forth by the Senior Advocate which is difficult to comprehend. In the opinion of this court, the doctrine of prospective overruling has no application in circumstances as above and such an argument is negated. Section 118 is no longer relevant.
Insofar as the claim of the petitioner to one-half share of the properties left behind by Mr.Faithful is concerned - the title of Mr. or Mrs. Faithful and the extent of share which Mrs.Fatihful was competent to deal with and the share if any of the petitioner cannot be the subject matter of these proceedings. This question is no longer res integra. The settled legal position is evident from the following decisions.
Ishwardeo Narain Singh v. Kamta Devi : AIR 1954 SC 280 wherein it is 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 decerned person was duty 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.
Mrs. Hem Nolini Judah v. Mrs. Isolyne Sarojbashini Bose : AIR 1962 SC 1471.
It was held that questions of title tire not decided in proceedings for the grant of probate or letters of administration whatever therefore might have happened in those proceedings would not establish the title. Where on an application for leilers of administration-
Questions of title are not decided in proceedings for the grant of probate or letters of administration. Whatever therefore might have happened in those proceedings would not establish the title. Where on an application for letters of administration certain preliminary issues were framed one of which related to estoppel with respect to the opposite party's right to a property and the application was obviously dismissed under Order 27 Rule 2 Civil P.C. for the reason that the applicant did not appear no question of res judicata as to the title to that property can arise against the applicant by reason of that dismissal.
Chiranjilal Shrilal Goenka v. Jasjit Singh : (1993)2 SCC 507: It was held following the dictum in Ishwardeo Narain Singh's case.
75. In Ishwardeo Narain Singh v. Smt. Kamta Devi 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 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 way. 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 time or of the existence of the property itself.
Ghulam Quadir v. Special Tribunal 2001 AIR SCW 4022: wherein it was held:
There cannot be any dispute to the legal proposition that the grant of probate establishes conclusively as to the appointment of the executor and the valid execution of the will However, it does not establish more than the factum of the will as probate court does not decide question of title or of the existence of the property mentioned herein.
Banarsi Dass v. Teeku Dutta ILR 2005 Kar. 3270 (SC) - The Supreme Court while dealing with the scope of a succession certificate held
14. The main object of a succession certificate is to facilitate collection of debts on succession and afford protection to the parties paying debts to the representatives of deceased persons. All that the succession certificate purports to do is to facilitate the collection of debts, to regulate the administration of succession and to protect person who deal with the alleged representatives of the deceased persons. Such a certificate does not give any general power of administration on the estate of the deceased. The grant of a certificate does not establish title of the grantee as the heir of the deceased. A succession certificate is intended as noted above to protect the debtors, which means that where a debtor of a deceased person either voluntarily pays his debt to a person holding a certificate under the Act, or is compelled by the decree of a Court to pay it to the person, he is lawfully discharged. The grant of a certificate does not establish a title of the grantee as the heir of the deceased, but only furnishes him with authority to collect his debts and allows the debtors to make payments to him without incurring any risk.
Kanwarjit Singh Dhillon v. Hardyal Singh Dhillon 2001 AIR SCW 6802, wherein it has been held as follows:
10. The High Court by the impugned order, relying on a decision of this court in the case of Smt. Rukmani Devi and Ors. v. Narendra Lal Gupta : (1985) (1) SCC 144 affirmed the order of the civil Court by holding that a probate granted by a competent probate Court was conclusive of the validity of the Will of late S. Kripal Singh until it was revoked and no evidence could be admitted to impeach the said Will except in a proceeding taken for revoking the probate. Accordingly to the High Court, a decision of the probate Court would be a judgment in term which would not only be binding on the parties to the probate proceeding but would be binding on the whole world. Upon the aforesaid finding, the High Court had affirmed the order of the civil Court holding that the suit must be dismissed in view of the fact that the probate Court had already granted probate in respect of the Will executed by late S. Kirpal Singh relating to the suit properties. We are not in a position to agree with the views expressed by the High Court in the impugned order nor are we in agreement with the order passed by the Civil Court. As noted herein earlier, 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 the 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 utilizing 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 inference 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.
11. In Chiranjilal Shrilal Goenka v. Jasjit Singh and Ors. : (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 paragraph 15 at page 515 which runs as under:
In Ishwardeo Narain Singh v. Smt. Kamta Devi 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 bud 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 wilt and the court itself is under duty to determine it and preserve the original wilt 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 herein earlier, in the case of Rukmani Devi (Supra). We are not in a position to agree with the High Court that this decision could at alt 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.
Krishna Kumar Birla v. Rajendra Singh Lodha : (2008)4 SCC 300:
It has been held as follows:
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 as 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 in 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.
and the court has cited Kanwarjit Singh Dhillon and Chiranjilal Shrilal Goenka, supra with approval.
K.G. Hatti v. Rattamkaur (1968)1 Mys.LJ 273, wherein it has been held that-
5. It is well established that the probate court while granting probate in respect of a will decides only the question of the genuineness and validity of the will and does not go into the question of title much less decide the said question in respect of any of the items said to belong to the said estate.
Mrs. Joan Pai v. Mrs. Esme D'Souza 1984(1) Kar.LJ 218 wherein it has been held that:
3. Grant of probate of a Will is no more than acceptance of the due execution of the will probated and that order granting probate does create a right in favour of the person who has obtained it and he is not required to prove that Will once again in any other proceeding. Grant of probate does not confer title on the Testator of the Will in respect of any of the properties included in the schedule of assets required to be filed along with such probate petition. It has to be agitated in the proper Civil Court having jurisdiction and the question settled there.
Severine D'Souza v. Felix Ambrose D'Souza ILR 2003 Kar. 194 (FB): A Full Bench of this court while considering the conflicting opinions expressed by a Division Bench of this court with the judgment of the Supreme Court in Ishwardeo Narain Singh v. Kamla Devi and has held as follows:
The Indian Succession Act, 1925 inter alia deals with the grant of probates and succession certificates. Section 213 of the Act provides that no right as executor or legatee can be established in any court of Justice, unless a Court of competent jurisdiction in India has granted probate of the will under which the right is claimed, or has granted probate of the will under which the right is claimed, or has granted letters of administration with the will. Section 227 of the Act deals with the effect of probate and provides that probate of a will when granted establishes the will from the death of the testator and tenders valid all intermediate acts of the executor. The net effect of the said provision is that once a probate is granted, the same establishes the will retrospectively from the date of the death of the testator and vests the property in the executor thereof. The grant of the probate provides the evidence regarding the will from which the executor derives his title.
The nature of the proceedings conducted by a Probate Court dealing with the prayer for grant of probate has been the subject matter of numerous judicial pronouncements. In the case of Alagammal v. V. Radhammal justice Nainar Sunderam (as his Lordship then was) speaking for the Bench held that the decisim of a Probate Court on the question of validity, genuineness and due execution of the wilt was a judgment in rem and could not be attacked in courts of ordinary civil jurisdiction. The decision drew a comparison between the jurisdiction of Civil Court and a Probate Court in the following words:
As between the decision rendered by an ordinary Civil Court and the decision rendered by a probate Court, on the question of truth, validity, genuineness and due execution of a will, the decision of the Probate Court is a judgment in rem, which will bind not only the parties before it, but the whole world is a well accepted proposition, which does into admit of any dispute. The decision of the ordinary Civil Court, dealing with the same issue, would not constitute a judgment in rem. Such is the sanctity annexed to the decision of the Probate Court, which is a Court of exclusive jurisdiction. The Probate Court is a court of conscience. It applies its mind to find out as to whether the document put forth in the last will or codicil of the deceased. It must arrive at the satisfaction as to the due execution of the document. It must be satisfied as to the testamentary capacity of the deceased. It is an exclusive Court dealing with probate matters in contract to the ordinary Civil Court, which is concerned only with deciding rights between parties. The probate Court does not decide rights between parties. Once the probate Court renders its decisions, that will take precedence on the relevant questions, over the decisions of the courts of ordinary Civil jurisdiction at all levels and will be binding on proceeding pending before such Court. Those principles are so well known, we do not think we should cite authorities for them.
To the same effect is the decision in Rukmani Devy v. Narendra Lal Gupta where the Supreme Court held that failure of an interested person to enter caveat to contest the proceedings would preclude them from contesting the validity of the will in every other proceedings.
In Ishwardeo Narain Singh v. Kamta Devi their Lordships summarised the scope of the proceedings before the Probate Court in the following words:
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 particular bequest is good or bad is not within the purview of the probate Court.
To the same effect is the decision of the Supreme Court in Mrs. Hem Nolini Judah (Singh Deceased) and after her legal Representatives Mrs. Marlean Wilkinson v. Mrs. Isolyne Sarojbashini Bose and Ors. The Court declared that the question of title to the property are not decided in proceedings for the grant of probate and letters of administration. The grant of probate or letters of administration declared the Court did not establish that the person making the will was the owner of the property which he may have given away by the will and that any person interested in property included in the will can always file a suit to establish his right to the property to the exclusion of the testator in spite of the grant of probate or letters of administration. The proceedings for probate or letters of administration are not concerned with the title to the property but are only concerned with due execution of the will. The following this sage is in this regard relevant:
Now it is not in dispute that the grant of probate or letters of administration does not establish that the person making the will was the owner of the property which he may have given away by the will, and any person interested in the property included in the will can always file a suit to establish his right to the property to the exclusion of the testator in spite of the grant of probate or letters of administration to the legatee or the executor, the reason being that proceeding, for probate or letters of administration ire not concerned with the title to the property but are only concerned with due execution of the will.
(emphasis supplied)
xxx xxx xxxAs we have already said question of title are not decided in proceedings for the grant of probate or letters of administration whatever therefore might have happened in those proceedings would not establish the title to the house either of the appellant or of Mrs. Mitter.
(emphasis supplied)
The above position is reiterated by the Supreme Court in Chinranjilal Shrilal Goenka v. Jasjit Singh in the following words:
The Succession Act is a self-contained code in so far 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 fasciculate 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. This 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)
The Division Bench in Maria Bat's case does not appear to have noticed the true legal position as settled by the above pronouncements of the Apex Court The observations made by the Division Bench that once a probate application is converted into a civil suit, the Court gets jurisdiction to determine the question of title to the property and the competency of a testator to execute a Will or not, cannot therefore be said to be stating the legal position correctly.
We haw in that view no option, but to hold that the Division Bench decision of Maria Bai's case is a judgment per incuriam and shall accordingly stand overruled. The reference is answered accordingly with u direction that the appeal shall now be posted for hearing and disposal, before the Learned Single Judge.
10. In the light of the above legal position, there is no ground made out to revoke the grant of probate nor is there any tenable ground made out lor removal of the Executrix. The petitions in Prob.CP 8/1999 and Prob.CP 10/1999 are hence dismissed.
Prob.CP 10/1990 is dismissed for non-prosecution.
Post Prob.CP 4/1989 for orders and further proceedings before the bench having the roster in due course.