In the case of Smt. Radhika Devi and Another Vs. Ajay Kumar Sharma and Others [ (2011) 1 PLJR 845 : (2010) 66 RCR(Civil) 445 PATNA HIGH COURT]and submitted that no probate can be granted with regard to joint family property. From perusal of the aforesaid decision, it appears that in that case, a partition suit was pending between the father and sons and their mother. There was dispute between the father mother and sons about as to which of the property is self-acquired property of father and which are their ancestral property. In such circumstances, it was found that in the list all the joint family properties were mentioned and application was filed for the grant of probate. The property of the testator was yet to be decided in the partition suit and in the probate application, all the properties which were the subject matter of partition suit were included.
In the case of Addagada Raghavamma and Another Vs. Addagada Chenchamma and Another[AIR 1964 SC 136 : (1964) 2 SCR 933], the Hon’ble Apex Court has held that Will could not be executed with respect to undivided share of the joint family property.
What is Probate proceeding?
Whether a person was incapable of executing a will by reason of any physical and / or mental incapacity is certainly a relevant point and, in fact, the most relevant point which is to be decided in Probate/Letters of Administration proceeding and in this case also I would deal with this aspect later in this judgment. As regards the use of the words “his property?, it is clear and, if I may say so, implicit that a person can execute a will, like any transfer deed, only with respect of his own property and not someone else’s property and, therefore, nothing much turns on use of those words in Section 59 as to confer jurisdiction on the probate Court to decide any dispute relating to title, ownership etc. of the testator/testatrix in the property which is the subject matter of the will. It is settled legal position that it is not the duty of the probate Court to consider any issue as to title of the testator to the property with which the will propounded purports to deal or to the disposing power the testator may have possessed over such property or as to the validity of the bequeaths made. See, for example, the case of Kashi Nath Singh Vs. Dulhin Gulzari Kuer, Proceeding for grant of probate or letters of administration is not suit in the real sense, it only takes the “form” of a regular suit according to the provisions of the Code of Civil Procedure”as early as may be” vide Section 295 of the Act. Reference may be made to a Division Bench decision of this Court in Sidhnath Bharti (Objector) Vs. Jai Narayan Bharti a Full Bench decision of the Allahabad High Court in Mrs. Panzy Fernandas Vs. Mrs. M.F. Queoros and Others, and a Division Bench decision of the Calcutta High Court in Balai Lall Banerjee and Others Vs. Debaki Kumar Ganguly and Others, The grant of probate or letters of administration is decisive only of the will propounded and not of the title etc. of the testator to the property. As the issues relating to title, ownership etc. are not to be gone into in such proceeding, it follows that even a favourable decision in favour of the Petitioner/Plaintiff granting probate or letters of administration in his favour does not operate as res judicata in any future suit which the Objector is at liberty to bring seeking declaration of his right, title, interest etc. in the property.
In this connection, reference may be made to the case of Ishwardeo Ishwardeo Narain Singh Vs. Sm. Kamta Devi and Others[AIR 1954 SC 280], wherein it was held that “the Court of Probate is only concerned with the questions 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 bequeath is good or bad is not within the purview of the Probate Court”. Thus whether a particular property had gone in favour of the beneficiaries on bequeathing is a matter to be decided by the Civil Court. The Probate Court is not in a position to decide that fact and as such the said objection raised from the side of the Appellants-Defendants had not been considered by the Probate Court rightly.