By Nazaqat Lal, Advocate & Solicitor, Bombay High Court
nazaqat_lal@hotmail.com | April 21, 2021
The question of the grant of probate by a testamentary court conferring title of a property to a person is a question interlinked with the jurisdiction of a testamentary court. This question was succinctly answered in the negative by the Bombay High Court in the case of Balan Alias Balendu Jayant Sawant v. I.K. Agencies Pvt. Ltd.[1],
“6. It is settled principle in law that the Testamentary Court is not required to go into the question of ownership or title to the property which forms the subject matter of bequest under the Will. The Testamentary Court is only required to see whether the deceased had the capacity to make the Will and whether the Will has been made in accordance with the provisions of law. Testamentary Court only considers whether the Will is the last testamentary instrument of the deceased, whether the deceased was in sound state of mind when he made the Will and whether the Will was made in accordance with, law that is to say whether it was properly executed and attested as per law. The Testamentary Court is not required to see whether the deceased was the owner of the property which he sought to bequeath under the Will. The decision of the Testamentary Court granting the probate does not confer any title to the property on the legatee if the deceased had none. Issue of title, if raised, is required to be decided by the Court of competent jurisdiction.”
As a legal practitioner, this question becomes important because it not only forms the framework within which a testamentary court exercises jurisdiction, but also, the framework within which a legal practitioner works. A legal practitioner is not required to investigate, ascertain or verify the title of the testator/testatrix to the properties mentioned in the Will before initiating proceedings for grant of probate.
Disputes of title, if any, relating to the property of the testator/testatrix may be raised by way of filing a separate civil suit. The outcome of such civil suit will not be affected by the pendency or final determination of probate proceedings. In a similar situation, the Bombay High Court [2] held as under –
“3. I understand the submission on behalf of the Respondent brother to be that there is some property to which the deceased did not have title. At the cost of repetition, this is not a question that can ever be decided by a Probate Court. If the brother believes that he has title to any property, he must adopt appropriate proceedings in a Civil Court of competent jurisdiction to establish that title. The grant of Probate will neither convey nor confer title to any property on any person. Therefore, the Respondent-brother is at liberty to adopt such proceedings as he is advised in regard to any particular property and all contentions in that behalf are kept open. That action or proceeding will remain unaffected by the grant of Probate or Letters of Administration with Will annexed.”
Grant of probate by the testamentary court simply establishes the genuineness and authenticity of a Will, grants administration to the estate of the testator/testatrix and enables the executor and legatee to establish their right as executor and/or legatee in a court of law. Grant of probate does not convey or confer title to any property to any person if the deceased testator/testatrix had none. The grant of Probate by a testamentary court does not confer title to property but merely enables administration of the estate of the deceased.
[1] Judgment dated 19th March 2010 in Notice of Motion No. 20 of 2010 in Testamentary Suit No. 40 of 2004 in Testamentary Petition No. 67 of 1998
[2] Rajkumar B Hemrajani v. Jyoti R. Hemrajani, Order dated 21st March, 2018 in Testamentary Petition No. 749 of 2017 with Testamentary Petition No. 785 of 2016 in Testamentary Suit No. 6 of 2018
