Romesh Chander Magotra and anr. Vs. M.M. Khajuria - Court Judgment

Excerpt:
- orders.k. gupta, j.1. through the currency of this petition, the petitioners seek the reversal of the order dated 9-2-2002 formulated by the learned district judge, jammu on an application of the objectors, herein petitioners in probate petition commenced by respondent m. m. khajuria under section 62 of the probate and administration act.2. it appears that a petition to probate the will dated 24-3-1993, alleged to have been executed by one o.p. khajuria in bequeathing 'daya bhawan' located in gandhi nagar, jammu came to be commenced by m. m. khajuria, claiming to be the beneficiary under the will. during the course of the proceedings in the probate petition an application came to be preferred by the objectors, herein petitioners in stating that a civil suit filed to challenge the will stated to have been executed by o.p. khajuria pending in the court of 2nd addl. district judge, jammu in assailing the competency of the testator to execute the will and that the present proceedings under section 62 of the probate and administration act cannot continue simultaneously and be kept in abeyance till the determination of the suit. it was further contended by the objectors that the matter in controversy both in the probate proceedings and the civil suit is identical and pertain to the execution of the alleged will.3. the propounder of the will mr. m. m. khajuria in controverting the contention of the objectors for stay of the probate proceedings submitted that scope of the proceedings for the grant of probate in respect of a will is to decide whether the will has been duly executed and attested as required under law. once the will is probated it dispense with the proof of the execution of the will for all times to come and is a judgment in rem. it is also submitted that the question relating to the property, if any, bequeathed or the competency of the testator to bequeath the property by executing a will, cannot be looked into in the probate proceedings. the propounder also denied to have any knowledge of the commencement of the civil suit by the objectors in assailing the competency of o.p. khajuria, testator in executing the will regarding the property specified therein. lastly, it is submitted that the probate proceedings cannot be stayed solely on the objectors' filing an application in stating that a civil suit is pending in which the competency of the testator to bequeath the property by executing the will is questioned.4. learned district judge, jammu after hearing the parties and considering the rival contentions dismissed the application of the objectors in holding the scope of the court in probate proceedings is limited with regard to the probating of a will and does not require to go into the question of competency of the testator to execute the will and bequeath the property.5. aggrieved by the impugned order drawn by the district judge, the objectors commenced its correctness before me in this petition.6. heard the learned counsel appearing on behalf of the respective parties and gone through the record meticulously.7. the main thrust of the petitioners' argument is that any finding returned by the court in probate proceedings will operate as res judicata in civil suit in which the competency of the testator to execute the will and bequeath the property has been challenged. it is significant to point out that the grant of probate or letter of administration is decisive of the will propounded and not the title etc. of the testator to the property. as the issue relating to the title, ownership etc. are not to be gone into in such proceedings, it follows that even a favourable decision in favour of the petitioners granting probate or letters of administration in his favour does not operate as res judicata in any future suit, which an objector is at liberty to bring seeking declaration of his right, title and interest etc. in the property.8. a person who propounds the will or produces the will before the court and wants the court to rely upon the same has to prove that:i) the will in question is the legal declaration of the intention of the deceased;ii) the testator when executed the will was in a sound and disposing state of mind, andiii) the testator had executed the will of his own free will, meaning thereby he was a free agent when he executed the will.9. the onus of proof rests squarely on the person propounding a will and in the absence of any suspicious circumstances surrounding its execution, the proof of testamentary capacity and testator's signatures as required by law would normally suffice in discharging the onus.10. the position of law relating to wills is settled by plethora of decisions. the following points are thus required to be borne in mind -- that the burden is on the pro-pounder to prove due and valid execution of the will and the propounder is required to show by satisfactory evidence that the will was signed by the testator that at the relevant point of time the testator was in a sound and disposing state of mind and that he understood the nature and effect of the disposition when he put his signature to the document of own free will. in case there are suspicious circumstances surrounding the will, it is for the propounder of the will to remove the suspicions from the mind of the court by cogent and satisfactory evidence.11. the question as to whether the testator had a right to bequeath the properties under the will executed by the testator is wholly foreign to the proceedings for such grant. what is required under section 62 of the probate and administration act is that the will is validly executed. it is nowhere contemplated by this provision that competency of the testator to bequeath the property by way of will is also required to be gone into by the court in the probate proceedings. once it is proved that the will is genuine and made by a person of sound mind out of his free will, then there is no impediment in probating of the will. as regards the question relating to the competency of the testator to bequeath the property by executing a will is alien to the probate proceedings and is required to be determined in a regular suit. similar view has been expressed by the high court of patna is kamleshwari devi v. devesh pratap singh, air 2002 patna 24.12. the net result deducible from the above is that the due execution obviously implies testamentary capacity and knowledge as well as formal execution and attestation. what the propounder of the will has to prove is that on the day the will was executed the testator was a capable free agent and the will was valid. so far as the competency of the testator to execute the will is concerned, its determination is excluded from the scope of proceedings with regard to probating of the will by the court in the probate proceedings. in this view of the matter, the probate proceedings, therefore, cannot be stayed solely on the ground that the objectors have filed a civil suit challenging the will on the ground of incompetency of the testator. petitioners, therefore, have not succeeded in making but a cause for interference in the order impugned, which otherwise in my view does not suffer from any irregularity or illegality. in the result, there is no merit in this revision petition and is dismissed accordingly. record of the court below shall be remitted back. parties are left to bear their own costs.

Judgment:
ORDER

S.K. Gupta, J.

1. Through the currency of this petition, the petitioners seek the reversal of the order dated 9-2-2002 formulated by the learned District Judge, Jammu on an application of the objectors, herein petitioners in Probate Petition commenced by respondent M. M. Khajuria under Section 62 of the Probate and Administration Act.

2. It appears that a petition to probate the Will dated 24-3-1993, alleged to have been executed by one O.P. Khajuria in bequeathing 'Daya Bhawan' located in Gandhi Nagar, Jammu came to be commenced by M. M. Khajuria, claiming to be the beneficiary under the Will. During the course of the proceedings in the Probate Petition an application came to be preferred by the objectors, herein petitioners in stating that a civil suit filed to challenge the Will stated to have been executed by O.P. Khajuria pending in the Court of 2nd Addl. District Judge, Jammu in assailing the competency of the testator to execute the Will and that the present proceedings under Section 62 of the Probate and Administration Act cannot continue simultaneously and be kept in abeyance till the determination of the suit. It was further contended by the objectors that the matter in controversy both in the Probate Proceedings and the Civil Suit is identical and pertain to the execution of the alleged Will.

3. The propounder of the Will Mr. M. M. Khajuria in controverting the contention of the objectors for stay of the Probate Proceedings submitted that scope of the proceedings for the grant of Probate in respect of a Will is to decide whether the Will has been duly executed and attested as required under law. Once the Will is probated it dispense with the proof of the execution of the Will for all times to come and is a judgment in rem. It is also submitted that the question relating to the property, if any, bequeathed or the competency of the testator to bequeath the property by executing a Will, cannot be looked into in the Probate Proceedings. The propounder also denied to have any knowledge of the commencement of the Civil Suit by the objectors in assailing the competency of O.P. Khajuria, testator in executing the Will regarding the property specified therein. Lastly, it is submitted that the Probate Proceedings cannot be stayed solely on the objectors' filing an application in stating that a Civil Suit is pending in which the competency of the testator to bequeath the property by executing the Will is questioned.

4. Learned District Judge, Jammu after hearing the parties and considering the rival contentions dismissed the application of the objectors in holding the scope of the Court in Probate Proceedings is limited with regard to the probating of a Will and does not require to go into the question of competency of the testator to execute the Will and bequeath the property.

5. Aggrieved by the impugned order drawn by the District Judge, the objectors commenced its correctness before me in this petition.

6. Heard the learned counsel appearing on behalf of the respective parties and gone through the record meticulously.

7. The main thrust of the petitioners' argument is that any finding returned by the Court in Probate Proceedings will operate as res judicata in Civil Suit in which the competency of the testator to execute the Will and bequeath the property has been challenged. It is significant to point out that the grant of Probate or Letter of Administration is decisive of the Will propounded and not the title etc. of the testator to the property. As the issue relating to the title, ownership etc. are not to be gone into in such proceedings, it follows that even a favourable decision in favour of the petitioners granting Probate or Letters of Administration in his favour does not operate as res judicata in any future suit, which an objector is at liberty to bring seeking declaration of his right, title and interest etc. in the property.

8. A person who propounds the Will or produces the Will before the Court and wants the Court to rely upon the same has to prove that:

i) the Will in question is the legal declaration of the intention of the deceased;

ii) the testator when executed the Will was in a sound and disposing state of mind, and

iii) the testator had executed the Will of his own free will, meaning thereby he was a free agent when he executed the Will.

9. The onus of proof rests squarely on the person propounding a Will and in the absence of any suspicious circumstances surrounding its execution, the proof of testamentary capacity and testator's signatures as required by law would normally suffice in discharging the onus.

10. The position of law relating to Wills is settled by Plethora of decisions. The following points are thus required to be borne in mind -- that the burden is on the pro-pounder to prove due and valid execution of the Will and the propounder is required to show by satisfactory evidence that the Will was signed by the testator that at the relevant point of time the testator was in a sound and disposing state of mind and that he understood the nature and effect of the disposition when he put his signature to the document of own free Will. In case there are suspicious circumstances surrounding the Will, it is for the propounder of the Will to remove the suspicions from the mind of the Court by cogent and satisfactory evidence.

11. The question as to whether the testator had a right to bequeath the properties under the Will executed by the testator is wholly foreign to the proceedings for such grant. What is required under Section 62 of the Probate and Administration Act is that the Will is validly executed. It is nowhere contemplated by this provision that competency of the testator to bequeath the property by way of Will is also required to be gone into by the Court in the Probate Proceedings. Once it is proved that the Will is genuine and made by a person of sound mind out of his free will, then there is no impediment in probating of the Will. As regards the question relating to the competency of the testator to bequeath the property by executing a Will is alien to the Probate Proceedings and is required to be determined in a regular suit. Similar view has been expressed by the High Court of Patna is Kamleshwari Devi v. Devesh Pratap Singh, AIR 2002 Patna 24.

12. The net result deducible from the above is that the due execution obviously implies testamentary capacity and knowledge as well as formal execution and attestation. What the propounder of the Will has to prove is that on the day the Will was executed the testator was a capable free agent and the Will was valid. So far as the competency of the testator to execute the Will is concerned, its determination is excluded from the scope of proceedings with regard to probating of the Will by the Court in the probate proceedings. In this view of the matter, the probate proceedings, therefore, cannot be stayed solely on the ground that the objectors have filed a Civil Suit challenging the Will on the ground of incompetency of the testator. Petitioners, therefore, have not succeeded in making but a cause for interference in the order impugned, which otherwise in my view does not suffer from any irregularity or illegality. In the result, there is no merit in this revision petition and is dismissed accordingly. Record of the Court below shall be remitted back. Parties are left to bear their own costs.