2025:JHHC:38345 IN THE HIGH COURT OF JHARKHAND AT RANCHI M. A. No. 305 of 2017 Karmu Sao, S/o Late Mundrika Sao, Village-Saidabad, P.O.-Japla, P.S.-Hussainabad, Dist.-Palamau .... …. Appellant Versus 1. Bateran Sao, S/o Late Bigan Sao 2. Kuldeep Sao, S/o Mundrika Sao 3. Bachu Sao, S/o Mundrika Sao 4. Badri Narayan Sao, S/o Mundrika Sao, All R/o Village-Saidabad, P.O.-Japla, P.S.-Hussainabad, Dist.-Palamu 5. Chandrika Sao, S/o Late Ram Tahal Sao 6. Dharmu Sao, S/o Late Mundrika Sao, All R/o Village-Saidabad, P.O.-Japla, P.S.-Hussainabad, Dist.-Palamu 7. Lal Mohan Sao 8. Rajesh Sao, both S/o Late Durga Sao and R/o Village-Deori, P.O.-Japla, P.S.-Hussainbad, Dist.-Palamau 9. Collector, Palamu-Cum-Deputy Commissioner, Palamu, P.O. & P.S.-Daltonganj, Dist.-Palamu, .... .... Respondents ----- CORAM: HON'BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY ----- For the Appellant : M/s Rajiv Kumar, Ram Lakhan Yadav & Naiyar Eqbal, Advocates For the Respondents : M/s Rahul Kr. Gupta, Surya Prakash, Swati Singh & Shubham Kumar, Advocates For Respondent-9 : Ms. Rishi Bharti, AC to AAG-III ----- Oral Order 16 / Dated : 18.12.2025 1. The instant miscellaneous appeal is preferred under Section 299 of the Indian Succession Act, 1925 to set aside the judgment dated 20.04.2017 passed in Title Suit No. 01 of 2010 arising out of Probate Case No. 01 of 2006, whereby and whereunder, grant of probate has been refused by the learned Probate Court. 2. As per the case of the legatee is that the testatrix Fuljhari Sahun @ Fuljhari Devi executed the WILL in favour of the appellant Karmu Sao on 07.04.2005 with respect to the property detailed in the schedule of the plaint. The Testatrix died on 08.09.2005 and thereafter probate application was filed in 2006 impleading the respondents. The parties are related to each other and the genealogical table has been set out as under: 2025:JHHC:38345 2 Bechu Sao Ram Tahal Sao (Died) Ramdeo Sao (Died) = Fuljhari Sahun @ Fuljhari Devi (Deceased Testator) Durga Sao Mundrika Sao Chandrika Sao (died) (died) (Opp. Party No. 1) Lal Mohan Sao Rajesh Sao Karmu Sao Dharmu Sao (Opp. Party No. 3) (Opp. Party No. 4) (Applicant) (Opp. Party No. 2) 3. Defendant Nos. 6 to 9 appeared and contested the suit by filing their joint written statement. However, in the written statement it has been wrongly referred to as defendant nos. 1 to 4, whereas, defendant nos. 1 to 4 appeared and contested the suit 4. The case of the objectors in brief is that appellant-Karmu Sao was not appointed as an executor of the WILL and as such the application for grant of probate under Section 276 was not maintainable. The main plea of defence is that Testatrix Fuljhari Devi had executed three registered deeds of gift numbers 921/1981, 2844/1985 and 2845/1985 in favour of the Objectors in respect of land of Khata No. 06 of village Mehdinagar and Khata No. 18 of village Saidabad both within police station Hussainabad, Dist.-Palamau. Therefore, she had no right, title or interest over the schedule property to have executed the WILL. It is further pleaded that the beneficiary Karmu Sao along with the Testatrix Fuljhari had repurchased the land of Khata No. 18 of village Saidabad through registered deed of sale in year 2001 from these objectors, who had acquired right title on the basis of gift deed No. 2844/1985 and 2845/1985. 5. Alternative plea was that the said WILL was a forged and fabricated document. 6. It is further pleaded on behalf of the objectors that Fuljhari Devi had also filed Title Suit No. 14 of 2003 for declaring the aforesaid deeds to be null and void at the instance of some persons. The said suit abated 2025:JHHC:38345 3 on the death of Fuljhari Devi. 7. On the basis of pleadings of the parties, the following issues were framed: 1. Is the application filed for grant of Probate on behalf of the plaintiff maintainable? II. Whether the plaintiff has got valid cause of action for the suit? III. Whether the WILL dated 07.04.2005 has genuinely been executed by the Testator Fuljhari Devi? IV. Whether the WILL dated 07.04.2005 is valid and genuine or is a manufactured document? V. Whether the said WILL contained the RTI of Fuljhari Devi? VI. Whether the plaintiff is entitled for grant of Probate? VII. To what relief or reliefs the plaintiffs is entitled? 8. Learned Trial Court dismissed the testamentary suit mainly on the ground that the schedule property of the WILL comprised of the property which had been transferred by way of gifts by the testatrix vide gift deeds (Ext.A/1, A/2 and A/4). 9. It is argued on behalf of the appellants that learned probate court is only concerned with the genuineness of the WILL executed by the testator as his last WILL made in a free and disposing state of mind. The Probate Court is not to enter into adjudication on the title of the property sought to be disposes by the testamentary disposition. Learned Court has rejected the application for grant of probate on the ground that the testator had no title over the scheduled property as the same had been transferred by way of gift. 10. Learned counsel has defended the impugned order of rejection. It is contended that under Section 152 of the Succession Act, 1925 if anything which has been bequeathed does not belong to the testator at the time of his death or has been converted into property of a different kind, the legacy is adeemed and it cannot take effect, by reason of the subject matter, having been withdrawn from the operation of the WILL. 11. Injustice occurs when a genuine WILL fails. Equally, when a fake WILL succeeds injustice occurs to the testator soul. It is here the Court exercises its balance taking into account a large number of factors to minimize its error in its decision making. 2025:JHHC:38345 4 12. The due execution of the WILL is to be proved as per the provision of the Indian Evidence Act and Indian Succession Act. The degree of proof is by preponderance of probability depending on the evidence on record taken as a whole. In the recent judgment of Kanwarjit Singh Dhillon v. Hardyal Singh Dhillon [(2007) 11 SCC 357 : (2007) 12 Scale 282] 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. The question whether a particular bequest is good or bad is not within the purview of the Probate Court. Equally the title of the testator or the legal competence to bequeath is not the concern of the probate court. 13. So far plea of ademption is concerned the purport of this principle is that under Section 152 of the Indian Succession Act, 1925 if a thing has been specifically bequeathed which does not belong to the testator at the time of his death, or has been converted into property of different kind, the legacy does not take effect. The executors are under no obligation to make available or to procure other property to satisfy the specific legacy. 14. Probate of a WILL is granted in a summary proceeding, in which title of the subject matter of the WILL cannot be adjudicated upon. In principle, it will not take effect with respect to property on which the testator had no title at the time of its death. 15. In the present case, the WILL is a registered instrument and like any other registered instrument there is a presumption of its due execution. It has been held in AIR 1923 PC 114 (Kanhaya Lal Vs. National Bank of India) that if document found registered and certificate of endorsements under Section 60 of the Registration Act endorsed thereon. Presumption arises under Section 114 of the Evidence Act that official acts have been regularly performed and the document was duly presented by person duly authorized under law. Registration of a WILL is not compulsory, however, registration adds to the level of authenticity or the probative force in favour of the WILL being proper. 2025:JHHC:38345 5 It is not final or conclusive. Yet it shifts the onus on the objector to show that even the registration was perfunctory and therefore presumption of due execution and that testator admission before the sub-registrar should be given a go by. Unless the objector establishes that the testator himself did not appear before the Sub Registrar, or that the thumb impression taken by the Sub Registrar at the time of registration in token of admission of execution is not that of the testator, there is little the objector can be heard to say. 16. The registered WILL has been witnessed by two attesting witnesses. PW-1 and PW-2 are the attesting witnesses and they have proved the due execution of the WILL in terms of Section 63 of the Indian Succession Act and Section 68 of the Evidence Act. Both of them have deposed that the WILL was executed in their presence. There is nothing in their cross-examination to doubt the veracity of their account. The WILL has duly been proved and marked as Ext-1. 17. Learned Probate Court, therefore, erred in dismissing the application for probate solely on the ground that the Testatrix had no valid title to execute the WILL with respect to it. 18. Under the circumstance, since no executor has been appointed in the WILL, therefore, a letter of administration to be granted with certified photo copy of the WILL annexed in the grant. The formal letter of administration, as per Schedule VII of the Indian Succession Act, shall be issued by the Court below. The matter is sent back to the Court below for completing all formalities according to law. Deficiency, if any, in Court fees, shall be made up accordingly. Miscellaneous Appeal is accordingly allowed. Pending I.A., if any, stands disposed of. (Gautam Kumar Choudhary, J.) AKT/Satendra Uploaded 22.12.2025