- (1.) AMITAVA Lala, J. Both the aforesaid appeals are arising out of the common judgment and order dated 26th July, 2007 passed by the Court of competent jurisdiction at Varanasi granting probate in respect of the Will dated 20th September, 1. 994 executed by one Sri Keshari Chand Jain, since deceased, in respect of the properties mentioned therein.
(2.) LEARNED Counsel appearing for both the contesting parties have arrived at a consensus that the appeals will be heard on informal papers, which was ac cordingly done at the stage of admission. Although several grounds are taken in the memorandum of appeal but, by and large, scope of arguments of Mr: B. D. Mandhyan, learned Senior Counsel appearing in support of the appellant/s, is restricted only with regard to the schedule of properties and pendency of the civil suit. He contended that the appellant would not be entitled to the Varanasi properties in the place and instead of Kolkata " properties, which were given to him in the will. Moreover, during pendency of the civil suit the Court of probate jurisdiction would not have passed the order granting probate, which will otherwise affect the title as claimed in the civil suit pending before the appropriate Court of law. It is further recorded hereunder that daughters of the deceased are not interested to contest the proceedings and they have filed their no objection with regard to grant of probate. It is pertinent to mention that family is covered by Mitakshara School of Hindu Law. By raising the grievance with regard to the schedule of properties Mr. Mandhyan relied upon paragraph-22 of a judgment of the Supreme Court reported in AIR 1990 SC 396, Kalyan Singh v. Smt. Chhoti and others, to establish that unnatural disposition of property in the will is also a ground of suspicious circumstances, which ultimately affect the quantity of the will. In that case we find that the plaintiff as a sole legatee with no right whatsoever to the testator's wife seems to be unnatural. The will had not been produced for very many years before the Court or public authorities even though there were occasions to produce it for asserting the plaintiff's title to the property. The plaintiff was required to remove these suspicious circumstances by placing satisfactory material on record. In the instant case, the will was executed on 20th September, 1994. The testator expired on 17th October, 2002. The probate proceedings were initiated in 2003. At the time of death, the testator had a wife, two sons and six daughters. Birendra Kumar Jain, the appellant/s herein, one of the son of the deceased, is settled at Kolkata when younger son Narendra Kumar Jain was then staying at Bombay. The testator distributed all the immovable properties between his two sons and gave the cash and other assets to his wife Smt. Jai Kumari. Since all the six daughters are well settled, no property was given to them nor they are interested to get it as they have already filed their no objection. Two probate proceedings were initiated by the younger son Narendra Kumar Jain and wife Smt. Jai Kumari. Both the probate cases were analogously heard without objection and the probate was granted. These factual aspects are totally distinguishable with the observation of the Supreme Court made in the above referred case as such has no application whatsoever in this case. However, he further relied upon a Division Bench Judgment of this Court reported in 2006 (10) ADJ 46 (DB), (Dr. Sajjan Singh and others v. Pushpraj Singh and another), where the Court held that presence of beneficiary at the time of making of the will and their taking a prominent part in its registration are typical suspicious circum stances in the probate Court. Mr. Mandhyan cited this case for the reason that the will was executed at the in-laws house of the deceased at Kanpur. However, we do not find any unnaturality in doing so unless, of course, reflection of such unnaturally is available in the will. The will is clear and categorical in respect of devolution of properties amongst the wife and the sons, who are otherwise en titled to have the shares of the properties had there been no will. Therefore, the dispute is really with regard to shares of the properties given to the caveator under We will but not with regard to making of the will. Thus, suspicious circumstances is discussed in both the above referred judgments are not the circumstances. Applicable in this case. Mr. Navin Sinha, learned Senior Counsel appearing for the respondents, referred paragraph 15 of the Supreme Court judgment reported in 1993 (2) SCC 507 (Chiranjilal Shrilal Goenka, Deceased) through LRs. v. Jasjit Singh and oth ers, In such paragraph the Supreme Court referred the judgement reported in AIR 1954 SC 280, Ishwardeo Narain Singh v. Smt. Kamta Devil. Such paragraph-15 is as follows : "15. In Ishwardeo Narain Singh v. Smt. Kamta Devi, AIR 1954 SC 280, 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 pro ceedings 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 ques tion 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 mani fested 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 arid the legal character of the executor. Probate court does not decide any question of title or of the existence of the property itself. "
(3.) SIMILAR view is also taken by a Division Bench of this Court in 1989 (15) A. L. R. 713, Raghubir Singh v. Dharam Singh. So far as unequal distribution of the property under the will is concerned, Mr. 'sinha cited other judgments, which are referred hereunder. He relied upon 2003 (8) SCC 537, Ramabai Padmakar Patil (Dead) through LRs. and others v. Rukminibai Vishnu Vekhande and others; and 2004 (2) SCC 321, Uma Devi Nambiar and others v. T. C. Sidhan (dead ). Paragraph-16 of Uma Devi Nambiar (supra), being relevant for the purpose, is quoted hereunder: "16. A Will is executed to alter the ordinary mode of succession and by the very nature of things, it is bound to result in either reducing or depriving the share of natural heirs. If a person intends his property to pass to his natural heirs, there is no necessity at all of executing a Will. It is true that a propounder of the Will has to remove all suspicious circumstances. Suspi cion means doubt, conjecture or mistrust. But the fact that natural heirs have either been excluded or a lesser share has teen given to them, by itself without anything more, cannot be held to be a suspicious circumstance es pecially in a case where the bequest has been made in favour of an offspring. As held in P. P. K. Gopalan Nambiar v. P. P. K. Balakrishnan Nambiar, (1995 Supp (2) SCC 664 : AIR 1995 SC1852, it is the duty of the propounder of the Will to remove all the suspected features, but there must be real, germane and valid suspicious features and not fantasy of the doubting mind. It has been held that if the propounder succeeds in removing the suspicious cir cumstance, the court has to give effect to the Will, even if the Will might be unnatural in the sense that it has cut off wholly or in part near relations. (See Pushpavathi v. Chandraraja Kadamba, (1973) 3 SCC 291 : AIR 1972 SC 2492 ). In Rabindra Nath Mukherjee v. Panchanan Banerjee, (1995) 4 SCC 459, it was observed that the circumstance of deprivation of natural heirs should not raise any suspicion because the whole idea behind execution of the Will is to interfere with the normal line of succession and so, natural heirs j. would be debarred in every case of Will. Of course, it may be that in some cases they are fully debarred and in some cases partly. ";