2025:JHHC:26500 IN THE HIGH COURT OF JHARKHAND AT RANCHI M. A. No. 180 of 2020 1(a). Ghamiyan Devi, W/o Late Punit Gope 1(b). Raju Kumar Yadav, S/o Late Punit Gope, both are R/o Village-Chhotki Saria, P.O.-Saria, P.S.-Saria (Bagodar), Dist.-Giridih 1(c). Gudiya Devi, D/o Late Punit Gope and W/o Rohit Yadav, R/o Village- Pipradih, P.O.-Jamtara, P.S.-Dumri, Dist.-Giridih, Jharkhand .... …. Appellants Versus 1. Girdhari Yadav, @ Giri Yadav, S/o Bharath Yadav, R/o Darwari, P.O.-Kheshkari, P.S.-Bagodar, Dist.-Giridih 2. Tejni Devi @ Kajri Devi, W/o Bharat Yadav, R/o Darwari, P.O.-Kheshkari, P.S.-Bagodar, Dist.-Girdih .... .... Respondents ----- CORAM: HON'BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY ----- For the Appellants : Mr. Sudhir Kr. Sharma, Advocate Mr. Ram Prakash Singh, Advocate Mr. Shashi Shekhar Dwivedi, Advocate For the Respondents : Mr. Rama Kant Tiwari, Advocate ----- Oral Order 10 / Dated : 29.08.2025 1. The Objectors/ Appellants are before this Court in appeal against the grant of probate of WILL in Original Case No. 01 of 2013 which was converted to a testamentary suit on contest. 2. Relations are not in dispute that the Objector-Punit Gope is the son of Testator-Rewat Gope and Rukiaya Devi, whereas the legatee-Girdhari Yadav/respondent no. 1 is the maternal grandson (Nati) of the Testator. 3. Petitioner /Respondent no.1 filed an application for grant of probate with respect to registered WILL said to be executed by the Testator along with testatrix on 01.02.2008 bequeathing the land situated in Mouza Badki Sariya, PS Bagodar, Khata No. 132, Plot No.3081, area 23 decimals, Khata No. 102, Plot No. 3082, area 08 decimals and under Khata No. 102, Plot No. 3082 and area 14 decimals along with dwelling house and well etc. It is also not in dispute that the said land was the self-acquired property of the Testator. 4. The application for probate was contested, inter alia, on the ground of fraud and adverse possession. It was averred that the said WILL was not 2025:JHHC:26500 2 executed in favour of the appellants out of their free will and sound mind, and by playing fraud they were made to sign the WILL. 5. Learned Probate Court framed the following issues: (i) Whether the suit as framed is maintainable? (ii) Whether the WILL dated 01.02.2008 executed by Testator namely, Rewat Gope and Rukiya Devi is last WILL of the deceased? (iii) Whether the WILL was executed by both the Testators in their sound mind and in presence of the witnesses? (iv) Whether the WILL dated 01.02.2008 is genuine and legally valid or the petitioner has obtained the said WILL by playing fraud and using coercion on the Testators? (v) Whether the petitioner Girdhari Yadav @ Giri Yadav is entitled to grant the Probate of WILL? 6. Altogether three witnesses, including respondent no. 1, were examined on behalf of the petitioner and the documents including the Deed of WILL dated 01.02.2008 (Ext. 4) and signatures of Raghunandan Prasad Mandal and Sarju Prasad Mandal on the WILL (Ext. 5 & 5/1) were adduced into evidence. 7. Learned Trial Court found no suspicious circumstance in execution of the WILL and granted the probate of WILL which is under challenge in the instant misc. appeal. 8. It is submitted by learned counsel for the appellants that the impugned order of award is not sustainable for the following reasons: i. Original WILL was never produced and the probate cannot be granted on the certified copy of the WILL. ii. The grandsons of the testator were not impleaded who are the necessary party and, therefore, their non-impleadment vitiated the case. 9. It is further argued that the attesting witness (PW3) in para-13 of the cross-examination has deposed that he has not seen or read the original of the WILL. At the time of scribe of WILL, no-one else was present except Rewat Gope and his wife. It is further argued that 2025:JHHC:26500 3 PW1, who is the son of the attesting witness Raghunandan Mandal, has deposed in para-6 of the cross-examination that the original WILL was with Girdhari Yadav and not in record. Despite the availability of the said WILL with applicant Girdhari Yadav, the same has not been produced. 10. It is also argued that it is a mandatory requirement of law to produce the original WILL in terms of Section 237 of the Indian Succession Act. No explanation has been given for not producing the original WILL. The propounder (PW2) of WILL has deposed in para-9 that he has filed the original WILL dated 01.02.2008 in the Court. 11. It is also argued that it was incumbent on the part of the propounder to have not impleaded the grandchildren of the testators. Law in this regard has been settled by the Hon’ble Supreme Court in Derek A C Lobo and Ors vs. Ulric M A Lobo (Dead) by LR’s And Ors, 2023 SCC OnLine 1893 wherein, it has been held that where the natural heirs are not impleaded as a party, it will be regarded as a suspicious circumstance and it will be for the propounder to dispel the suspicion on execution of WILL. Reliance is placed on Chinu Rani Ghosh vs. Subhash Ghosh and Others, (2024 SCC OnLine 4070), Lilian Coelho and Ors Vs. Myra Philomena Coalho, {(2025) 2 SCC 633} and M.A. No. 280 of 2024. 12. Counsel on behalf of the respondents has defended the grant of probate. 13. At the outset, it may be noted that title of the property is beyond consideration of a probate court which is a summary proceeding confined to determine whether the document in question was the last WILL of the testator and was executed by free will without any undue influence. Therefore, the plea of having acquired title by adverse possession is beyond the purview of a probate court. 14. For grant of a Probate, the propounder of WILL has to prove firstly, the WILL was duly singed by the testator or bears the affixation of his mark; secondly, the mark so affixed or the signatures of the testator should be so placed that it appears that it was intended to be executed by the testator in a free disposing state of mind; thirdly, it 2025:JHHC:26500 4 must be attested by two or more witnesses, each of whom should have seen the testator sign or put his mark on the WILL. The WILL must be signed by the witnesses in the presence of the testator, but it is not necessary that more than one witness should be present at the same time. It has been held in Guro (Smt) Vs. Atma Singh and Ors., (1992) 2 SCC 507 at page 511: “3. With regard to proof of a Will the law is well settled that the mode of proving a Will does not ordinarily differ from that of proving any other document except as to the special requirement prescribed in the case of a Will by Section 63 of the Indian Succession Act. The onus of proving the Will is on the propounder and in the absence of suspicious circumstances surrounding the execution of the Will, proof of testamentary capacity and signature of the testator as required by law is sufficient to discharge the onus. Where, however there were suspicious circumstances, the onus would be on the propounder to explain them to the satisfaction of the court before the Will could be accepted as genuine. Such suspicious circumstances may be a shaky signature, a feeble mind and unfair and unjust disposal of property or the propounder himself taking a leading part in the making of the Will under which he receives a substantial benefit. The presence of suspicious circumstances makes the initial onus heavier and the propounder must remove all legitimate suspicion before the document can be accepted as the last Will of the testator”. 15. WILL in the present case is registered, but the original is not produced, rather it’s certified copy, which is the photocopy of the original WILL bearing the stamp of registry and signature of the testators has been adduced into evidence and marked as Ext-4. The WILL has been proved by one of the attesting witnesses (PW-3). It has been deposed by him that WILL was written by the scribe at the instance of the testators in favour of their maternal grandson Girdhari Yadav. It has also been deposed that the WILL was executed in his presence by the testators in sound state of mind and health. He has proved the signature of the other attesting witness as 2025:JHHC:26500 5 well. The other attesting witness had died before filing of the Probate case as stated by his son P.W.1. 16. Further, there is a presumption of due execution of a registered instrument, and onus lies on the party who asserts it to be vitiated by fraud. It has been held in Ishwar Dass Jain v. Sohan Lal, (2000) 1 SCC 434 that, there is a presumption of the correctness of the endorsement made by the Sub-Registrar under Section 58 of the Registration Act. There is no contrary evidence to rebut the presumption of due execution. 17. Thus, the WILL has been duly proved. As a matter of fact, from plain reading of the show cause/WS filed on behalf of the objector it is evident that the execution of the WILL has not been even disputed. The defence as pleaded is that the WILL was vitiated by fraud and coercion. No evidence, has been led in support of the averment that fraud or coercion was played on the testator in its execution. 18. It is only argued that since the original line of inheritance has been deviated, therefore it should lead to the presumption of suspicious circumstances surrounding its execution. The argument is not impressive for the reason that testamentary disposition of property is intended to deviate from the normal line of inheritance, otherwise there would be no need for disposition of property by way of WILL. The argument that since the objectors/appellants were the sons, whereas the propounder was the maternal grandson, therefore it should lead to a conclusion that the WILL was vitiated by fraud, is unacceptable. “In Rabindra Nath Mukherjee v. Panchanan Banerjee, (1995) 4 SCC 459 it has been held that execution of Will in favour of a person who is not the natural heir should not raise suspicion because the whole idea behind execution of Will is to interfere with the normal line of succession. So natural heirs would be debarred in every case of Will; of course, it may be that in some cases they are fully debarred and in others only partially.” 2025:JHHC:26500 6 In Gurdev Kaur v. Kaki, (2007) 1 SCC 546 it has been held, “77. The court does not sit in appeal over the right or wrong of the testator's decision. The court's role is limited to examining whether the instrument propounded as the last Will of the deceased is or is not that by the testator and whether it is the product of the free and sound disposing mind. It is only for the purpose of examining the authenticity or otherwise of the instrument propounded as the last Will, that the court looks into the nature of the bequest.” 19. Thus, fraud and coercion being a question of fact which is to be pleaded and proved, in the absence of evidence to substantiate the pleading of fraud, this plea fails. 20. Further, since the property was self-acquired by the testators by registered sale deeds, and it was not ancestral property in which the grandsons could have any birth right, therefore, non-impleadment of the grandson cannot be a ground to make the case bad for non- joinder of necessary party. 21. Now coming to the argument of not filing the original WILL, an exemption from filing an original WILL can be granted which are contained under Sections 237, 238 and 239 of the Succession Act, 1925. It provides for situation where a limited grant is given by the court to the propounder/petitioner in case the WILL is destroyed, or lost or in case the propounder is in knowledge but not in possession of the WILL and has requested the person in possession to produce the same. 22. The position of law is emphatic on the point that this alone cannot be a ground to refuse grant of probate of WILL, which has been duly proved: “237. Probate of copy or draft of lost WILL—When a Will has been lost or mislaid since the testator's death, or has been destroyed by wrong or accident and not by any act of the testator, and a copy or the draft of the Will has been preserved, probate may be granted of such copy or draft, limited until the original or a properly authenticated copy of it is produced.” 2025:JHHC:26500 7 23. Thus, when the execution of the registered WILL has not been disputed by the objectors in their show cause, there being no evidence that the execution was vitiated by fraud, attesting witness having proved its execution, and there being no attending suspicious circumstance, grant of probate cannot be refused only on the ground that the original of the WILL was not proved. 24. With advance of technology, there is greater transparency in the process of registration with photocopy of the executants being taken, and one photocopy of the original deed is now filed with the original instrument for registration. It is significant to note that earlier neither the photographs of the executant of a registered WILL was affixed on the document for registration, nor the actual photocopy of it was furnished as certified copy. Content of the instrument was entered in a register, the copy of which was produced as the certified copy. Now the certified photocopy, as in the present case, bears the photo copy of the photographs, signatures/ LTI. This lends greater credence to the certified copies of the original instrument. Under the circumstance non-production of the original WILL cannot be regarded as fatal. For the reasons as discussed above, I do not find any infirmity in the impugned order. Miscellaneous Appeal stands dismissed. Pending I.A, if any stands disposed of. (Gautam Kumar Choudhary, J.) AKT/Satendra