V.K.Gupta, J. - (1.) -This Appeal is directed against a Judgment dated 13th May, 1998 passed by the learned single Judge of this Court whereby the application for grant of Probate of a Will filed by the Appellant was dismissed. Brief facts leading to the filing of the appeal are that one Nirmal Nalini Dassi who had been residing at No. 35A, Dr. Rajendra Road, Calcutta-20 made a Will on 11th November, 1983 and a Deed of Codicil. The said Nirmal Nalini Dassi bequeathed all her immovable property to Dwijendra Kumar Basu and Dipundra Kumar Basu in equal shares and declared that they both will become the owners of all her property in absolute right. Nirmal Nalini Dassi claimed to be the sole owner of the immovable property being House at No. 35/C, Dr. Rajendra Road, Calcutta. This property is at the centre of controversy between the parties. After the death of Nirmal Nalini Dassi on or about 28th May 1986, Dinendra Kumar Bose claiming to be the sole executor under the aforesaid Will dated 11th November, 1983 filed an application for taking out probate in respect of the said Will. In this proceedings the Respondents filed Caveat supported by the Affidavit of Tapan Kumar Bose in which inter alia it was alleged that Nirmal Nalini Dassi did not have the title to the property in question and she could not make Will in respect thereto and therefore the probate proceedings be dismissed and the Court should refuse to grant any probate in respect of the applicant Dinendra Kumar Bose. The reason advanced in the Caveat and the Affidavit was that Nirmal Nalini Dassi did not have any title to the property since she was not the owner of the property at all inasmuch as the property was given to her by way of a limited ownership during her life time as per the Will executed by her husband Upendra Nath Bose on 17th June, 1924. It was alleged by the Respondents that on 17th June, 1924 Upendra Nath Bose, the husband of Nirmal Nalini Dassi by appointing her as the executrix given to her the said property for a limited purpose, meaning thereby only during her life time and that after her life the property would devolve upon the nephews of Upendra Nath Bose. The relevant part of the Will of Upendra Nath Bose on which reliance was placed by the respondents reads as under : "I give devise and bequeath my said house and my Government Promissory Notes and Shares which may remain after meeting my funeral and testamentary expenses aforesaid and my other moveables to my wife Srimati Nirmal Nalini Dassi for her life only, that is to say, she shall be entitled to enjoy the income and profits of the whole of my Estate and house or enjoy the movables during the period of her life only, but shall not be entitled to transfer or alienate my estate including the movables or any part thereof, and after the death of my said wife my nephews Anil Kumar Bose son of my eldest brother Dwarka Nath Bose deceased, Amarendra Nath Bose son of my third brother Surendra Nath Bose and Rabindra Nath Bose son of my youngest brother Hira Lal Bose or the survivor or survivors and they shall get the whole of my estate moveable and immovable in equal shares absolutely. My said wife is to get a life interest only in my said properties as stated above after my death, provided she ordinarily resides in my said house and promises which have been allotted to me as aforesaid or live under the protection of the members of the family of which I am now a member and my wife shall keep my said house and premises in a proper state of repairs during the period of her enjoyment??????"
(2.) The following observations made by the trial Judge led to the dismissal of the application for probate : "Lastly the propounder wanted to say by citing a judgment that probate Court has no power to go into the question of title. This question too, according to me, is a futile attempt to resist the contention of the caveator. It is to be noted that probate Court may or may not go into the question of title but always entitle to enquire as to the testamentary capacity of the testator mentally, physically or legally. This is the case where the legal testamentary capacity is a question before the Court of law and the Court is duty bound to pronounces its judgment to that effect otherwise such question will lead to an absurdity and in that case a testator by virtue of his or her will can be able to bequeath any property even if the same is not belong him or her."
(3.) Two questions emerge and arise for consideration in this appeal. One as to whether in Proceedings for grant of probate it is open to the trial Judge to go into the question of title of the testatrix, and secondly did the testatrix in the present case have the title to the property in question.;