Patna High Court

Smt. Pushpa DeviversusEastate Of Rupan Mahto and Anr

Decided: 22 January 2026
Disposal: DISPOSED
Bench: PURNENDU SINGH

Holding

The probate court lacked jurisdiction to decide title matters; its order is a nullity and is set aside.

Summary

Pushpa Devi, the daughter‑in‑law of the deceased Rupan Mahto, sought probate of a Will dated 02‑12‑2006 that purportedly appointed her as executor of his property. The Fast Track Probate Court dismissed the petition, finding the Will surrounded by suspicious circumstances and lacking proper attestation, and also ruled on the title of the property. On appeal, the High Court held that a probate court’s jurisdiction is limited to determining the genuineness and due execution of a Will and it cannot decide questions of title or the executor’s rights over the property. Consequently, the order of the probate court was declared a nullity and set aside. The Court allowed the parties’ compromise petition filed under Order 23 Rule 3 of the CPC and remitted the matter to the probate court to give effect to the settlement. The appeal was therefore disposed of in favour of the appellant.

Issues considered

Whether the probate court had jurisdiction to decide the title of the property and the executor's rights, beyond the genuineness of the Will
Whether the Will dated 02‑12‑2006 was duly executed, attested and free from suspicious circumstances
Whether the order of the probate court is void for lack of jurisdiction
Whether a compromise petition filed under Order 23 Rule 3 CPC can be allowed pending the appeal

Legislation cited

Code of Civil Procedure, 1908 — s. 151
Indian Succession Act, 1925 — s. 217, 276, 295

Subjects

Probate
Will
Jurisdiction
Suspicious circumstances
Compromise
Indian Succession Act
Title suit
Civil Procedure

Judgment

IN THE HIGH COURT OF JUDICATURE AT PATNA
FIRST APPEAL No.110 of 2018
======================================================
Smt. Pushpa Devi Wife of Bijay Prasad Resident of Village/Mohalla - Umed
Nagar, P.O. P.S. - Deep Nagar, District - Nalanda.
... ... Appellant/s
Versus
1. Eastate Of Rupan Mahto and Anr
2. Ashok Kumar Son of Late Rupan Mahto Resident of Village/Mohalla -
Umed Nagar, P.O. P.S. - Deep Nagar, District - Nalanda.
... ... Respondent/s
======================================================
Appearance :
For the Appellant/s : Mr. Rajendra Prasad, Sr. Advocate.
Mr. Pramod Kumar, Advocate.
Mr. Ritesh Kumar, Advocate.
Mr. Dhirendra Kumar, Advocate.
Ms. Srishti, Advocate.
For the Respondent/s : Mr. Santosh Kumar Sinha
======================================================
CORAM: HONOURABLE MR. JUSTICE PURNENDU SINGH
ORAL JUDGMENT
Date : 22-01-2026

Heard learned counsel appearing on behalf of the

appellant and learned counsel for the respondents.

2. The First Appeal has been preferred by the

appellant against the impugned order dated 02.07.2018 passed

in Probate Case No. 16 of 2009 by the Presiding Officer, Fast

Track Court- 1, Nalanda at Bihar Sharif (for short, the Probate

Court). The Probate Court vide impugned order dated

02.07.2018 has dismissed the petition filed by the appellant

(original petitioner) under the provision of Indian Succession

Act, 1925 (for short, the Act, 1925) as the executor appointed by

Late Rupan Mahto by his will and testament dated 02.12.2006.

3. The petitioner (appellant hereof) is named
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executor as well as she is the sole executor in the said Will. The

property is situated in Village – Umed Nagar, P.S.-Deep Nagar,

District – Nalanda and also in Village – Meghi Nagma, Thana

No. 319, Khata No. 705, Plot No. 4306, Area – ½ Dec, District

– Nalanda.

4. The brief facts of the case, is that, one Rupan

Mahto, the father-in-law of the appellant, executed a Will dated

02.12.2006 in favour of his daughter-in-law, namely Pushpa

Devi, who is the petitioner in Probate (T.S.) Case No. 16 of

2009, and the appellant hereof. The said Will was executed out

of love and affection, with the consent of the nearest relatives,

and out of the free and sweet will of the testator, as his last Will

and testament. The Probate Court has recorded that Rupan

Mahto had five sons and three daughters. There was oral

partition among all sons of Rupan Mahto. However, none of the

parties gave details of the property allotted to each member in

the said partition. An objection was filed by Ashok Kumar that

Rupan Mahto had never been residing with Pushpa Devi, rather

he lived separately. All his sons and daughters were rendering

service to Rupan Mahto and he never showed his prudent desire

to execute the registered deed of Will.

5. It is informed that a caveat was filed by
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Jugeshwar Mahto and others and subsequently a compromise

petition was filed stating therein that after receiving notice of

this case, the parties, namely, Jugeshwar Mahto, Siddheshwar

Mahto, Vijay Mahto, Manti Devi, Barti Devi, except Ishari

Mahto, as mentioned in Para-3 of the petition, with the advice of

other relatives, they wanted not to dispute the genuinity of the

Will dated 02.12.2006 executed by Rupan Mahto in favour of

Pushpa Devi – the petitioner of the Probate Case and appellant

hereof and they had no objection in granting Probate in favour

of the petitioner-appellant. Respondent No. 2-Ashok Kumar had

not filed any affidavit that he don’t want to contest the suit nor

he was party to the said compromise petition which was jointly

filed on behalf of the above parties including the caveator

Jugeshwar Mahto.

6. The Probate Court framed following issues on the

petition of the parties:

i. Whether the registered deed of Will dated 02.12.2006
executed by Rupan Mahto in favour of Pushpa Devi, petitioner / plaintiff
is duly executed and genuine and free from all suspicious circumstances?

ii. Whether the Will dated 02.12.2006 is last Will of Rupan Mahto
?
7. The issue was framed after the Probate Case No.

16 of 2009 was converted into Title Suit. Now, the said Title

Suit was contested and Probate Petition filed on behalf of the

petitioner dated 04.11.2009 was dismissed against which the
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present First Appeal has been preferred by the appellant.

8. It has been recorded by the Probate Court that

after examination of the witnesses and material evidence on

record, the Will deed dated 02.12.2006 executed by Rupan

Mahto in favour of Pushpa Devi was found to be surrounded

with suspicious circumstances resulting in the Will dated

02.012.2006, not found to be probated.

ARGUMENT OF THE PARTIES

9. Learned counsel for the appellant submitted that

the question for determination in the present appeal is, as to

whether, the Probate court was having jurisdiction to disallow

the appointment of the petitioner-appellant as the executor

appointed by the testatrix by entering into to decide the Title

based on the Will? Learned Senior Counsel, in this regard,

relied upon the judgment of the Apex Court rendered in the case

of Krishna Kumar Birla Vs. Rajendra Singh Lodha & Ors.,

reported in (2008) 4 SCC 300 and Kanwarjit Singh Dhillon Vs.

Hardyal Singh Dhillon, reported in (2007) 11 SCC 357, to

contend that jurisdiction of the Probate court has very limited

scope, i.e. only to decide the question relating to genuineness of

a Will, but it has no power, jurisdiction and authority to decide

the Right, Title and Interest of an executor of Will upon the
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property in question. Thus, he submitted that the learned District

Court has exceeded its jurisdiction in deciding the Probate (T.S.)

Case vide order dated 02.07.2018.

10. He further informs that now the respective parties

want to buy peace of mind by entering into agreement to enter

into the compromise, for which the parties have filed I.A. No. 2

of 2025 under Order 23 Rule 3 read with Section 151 of the

Code of Civil Procedure, 1908, during the pendency of the

present appeal and the same is required to be given effect. He

admits that the property which has been executed by way of

Will in favour of the appellant by late Rupan Mahto, the

respondent no.2 has no interest in the said property. At the time

of pending of the probate case, the other coparcener had refused

to contest the suit by entering in compromise as such the finding

of the probate in respect of the very genuineness of the Will now

has no relevance as the compromise has been entered not under

coercion or under influence.

11. Mr. Santosh Kuamr Sinha No.2, learned

counsel appearing on behalf of the respondent no.2 reiterating

the event in respect of the compromise which was entered into

by the other heirs of late Rupan Mahto, as has been recorded in

Para-5 of the Judgment dated 02.07.2018, submitted that the
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respondent also being one of the heirs of late Rupan Mahto has

entered into compromise with the petitioner (appellant hereof)

and has filed a compromise petition during the pendency of the

present first appeal on 07.10.2025.

ANALYSIS AND CONCLUSION

12. Heard the parties.

13. Before I enter into the legality of the impugned

order/judgment dated 02.07.2018 or the compromise between

the parties, it is to be kept in mind that whenever the Probate

Case is filed under Section 217 of the Indian Succession Act,

1925 before the Probate Court on the basis of the Executor of

the Will and the Probate Case is contested under Section 295 of

the Act, it is required to be named as a Title Suit as per the Rule

458 of the Civil Court Rules of the High Court of Judicature at

Patna, but the fact remains the court which is deciding the

probate case with a new name of title suit has no power,

jurisdiction and authority to decide the title suit upon the

property in question nor has power to decide the ownership of

the property which is referred by the executor of the Will of the

property.

14. For better appreciation of the case, Section 217

of the Indian Succession Act, 1925 is reproduced hereinafter:
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“217. Application of Part.— Save as otherwise
provided by this Act or by any other law for the time being
in force, all grants of probate and letters of administration
with the Will annexed and the administration of the assets
of the deceased in cases of intestate succession shall be
made or carried out, as the case may be, in accordance
with the provisions of this Part.”

15. Rule 458 of the Civil Court Rules of the High

Court of Judicature at Patna is reproduced hereinafter:

“458. An application for Probate or for
Letters of Administration should, for the purposes
of the returns, be treated as a Miscellaneous
(Judicial) case until the dale upon which it is
contested and as a suit from that date. In order to
explain the discrepancies which will result in the
total number of Miscellaneous (Judicial) cases for
disposal, disposed of, and pending, it should be
stated on the face of each retum of Miscellaneous
(Judicial) cases how many applications for
Probate and for Letters of Administration were
transferred, during the period to which the returns
relate, to the head of suits, and treated as suits
from the dates upon which the applications were
contested. [H.C. memo no. 10245-59, dated 8th
October, 1964; Re-applications under section 75
(2) of the Employees State Insurance Act, 1948.]
Note.—Applications for the Revocation
of Probate and Letters of Administration should be
treated in the same manner as applications for
Probate or Letters of Administration.”

16. On merit, I find that it is well settled principle of

law that the decree passed by a Court without jurisdiction or by

a Court, which lacks inherent jurisdiction, is a coram non-

judice. Such decree passed by a Court, who has no jurisdiction,

is a nullity and non est and its invalidity can be set up, where

ever it is sought to be enforced or is acted upon. Learned
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Probate Court while answering the issue nos. 1 and 2, has

recorded its findings in paragraphs no. 12, 13 and 14 and based

on the evidence of witnesses finally analyzed to conclude in

paragraphs no. 19, 20 and 21 of the judgment under appeal as

under:

“ 19. The execution of the Will dated 02-12-
2006 is not denied, but from the evidence of the parties, it is
clearly proved that there is no legal & proper attestation of
Will executed by Rupan Mahto and serious surrounding
suspicious circumstance has not been removed by
petitioner. The learned counsel for petitioner has filed
citation 2014 Civ.C.R. 265 (Guj.) in support of submission,
in which the Hon'ble Apex Court has given list of probable
suspicious circumstances in para 11 and as per para 15, it
is well settled that " when a Will is surrounded by
suspicious circumstances. the person propounding the Will
has a very heavy burden to discharge the onus of proof and
onus of removing suspicious circumstances surrounding the
execution of the Will."
20. The following surrounding suspicious
circumstances are found in this case, which have not been
removed by the petitioner:
1. There is no evidence on record to show that
Rupan Mahto has taken consent of all his near relatives at
the time of execution of Will;
2. None of the sons of Rupan Mahto nor near
relatives came to say about consent taken by Rupan Mahto
for executing Will dated 02-12-2006 in favor of Puspa
Devi;
3. The condition of testator's mind may be very
feeble & debilitated at the relevant time;
4. There is no cogent evidence to show that
petitioner is only person out of five sons & three daughters
of Rupan Mahto, who rendered service to Rupan Mahto:
5. In spite of five sons of Rupan Mahto, the
reason has not been explained as to why petitioner being
daughter in law performed last ceremony of Rupan Mahto;
6. The attestation of Will in question has not
been proved by one of the attesting witness because one of
the attesting witness Baleshwar Mahto, brother of Rupan
Mahto has been shown as dead in Petition, but to the
contrary petitioner's witness Siddhu Mahto, brother of
another attesting witness has admitted that Baleshwar
Mahto is alive;
7. The petitioner has not explained reason as
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to why one of the attesting witness Baleshwar Mahto was
not produced to prove the attestation of Will;
8. The propounder took prominent part in the
execution of the Will;
21. On the basis of material evidence on
record, I find that the petitioner has failed to prove the duly
execution, attestation & genuineness of "Will" dated 02-12-
2006 executed by Rupan Mahto in favor of Pushpa Devi.
Accordingly, issues No. 1 & 2 are decided against the
petitioner / plaintiff. It has also been found from material
evidence on record as discussed above that executor has
died and the Will in question is fully surrounded with
suspicious circumstances, resulting in the Will dated 02-12-
2006 is not found to be probated. Accordingly, I have come
to the conclusion that the petitioner is not entitled to get the
relief as claimed”

17. Answering the question of law raised by the

learned senior counsel that whether Probate Court had

jurisdiction only to issue probate and has no jurisdiction to

decide the title based on the will.

18. The probate of will is required to be granted by

the competent Probate Court upon essentially if the following

conditions according to Section 276 of the Indian Succession

Act, 1925 are fulfilled.

(a) to see that Will executed by the testator, was actually
executed by him/her, in a sound State of mind, without coercion or any
undue influence,
(b) Whether the Will was duly attested,
(c) the genuineness of the Will and
(d) due execution of the Will.
This is the scope of the decision of a Probate Court and
nothing beyond that;
(vii) The Probate Court:
(a) is not competent to determine the question of title to the
suit properties,
(b) the Probate Court has no power, jurisdiction and
authority to go into the question whether suit properties which are
bequeathed by the Will, are ancestral properties or self-acquired
properties of the testator.
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19. The execution of a Will assumes great legal

significance, as it represents the final expression of a person’s

intention regarding the disposition of their property after death.

A Will is a legally recognized instrument of testamentary

succession, intended to come into operation only upon the

demise of the testator or testatrix, and thus it speaks from the

date of death. Because the maker of the Will is no longer alive

when the document is brought before a court for examination,

they cannot clarify the circumstances in which it was executed.

In view of this, the law mandates strict compliance with

statutory requirements for the due execution and proof of a Will,

so as to guard against the risk of manipulation, fraud, or undue

influence. In this regard the Apex Court in case of Meena

Pradhan & Ors. vs. Kamla Pradhan & Anr. reported in 2023

INSC 847 in para nos. 9,10 and 11 has observed as under:

“9. A Will is an instrument of testamentary
disposition of property. It is a legally acknowledged
mode of bequeathing a testator's property during his
lifetime to be acted upon on his/her death and
carries with it an element of sanctity. It speaks from
the death of the testator. Since the testator/testatrix,
at the time of testing the document for its validity,
would not be available for deposing as to the
circumstances in which the Will came to be
executed, stringent requisites for the proof thereof
have been statutorily enjoined to rule out the
possibility of any manipulation.
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10. 10. Relying on H. Venkatachala Iyengar v. B.N.
Thimmajamma, 1959 Supp (1) SCR 426 (3-Judge
Bench), Bhagwan Kaur v. Kartar Kaur, (1994) 5
SCC 135 (3-Judge Bench), Janki Narayan Bhoir v.
Narayan Namdeo Kadam, (2003) 2 SCC 91(2-Judge
Bench) Yumnam Ongbi Tampha Ibema Devi v.
Yumnam Joykumar Singh, (2009) 4 SCC 780 (3-
Judge Bench) and Shivakumar v. Sharanabasappa,
(2021) 11 SCC 277 (3-Judge Bench), we can
deduce/infer the following principles required for
proving the validity and execution of the Will:

(i)The court has to consider two aspects; firstly, that
the Will is executed by the testator, and secondly,
that it was the last Will executed by him;
(ii)It is not required to be proved with mathematical
accuracy, but the test of satisfaction of the prudent
mind has to be applied.
(iii) A Will is required to fulfil all the formalities
required under Section 63 of the Succession Act,
that is to say:
(a) The testator shall sign or affix his mark to the
Will or it shall be signed by some other person in his
presence and by his direction and the said signature
or affixation shall show that it was intended to give
effect to the writing as a Will;
(b) It is mandatory to get it attested by two or more
witnesses, though no particular form of attestation
is necessary;
(c) Each of the attesting witnesses must have seen
the testator sign or affix his mark to the Will or has
seen some other person sign the Will, in the
presence and by the direction of the testator, or has
received from the testator a personal
acknowledgment of such signatures;
(d) Each of the attesting witnesses shall sign the
Will in
the presence of the testator, however, the presence of
ali
witnesses at the same time is not required;
(iv)For the purpose of proving the execution of the
Will, at least one of the attesting witnesses, who is
alive, subject to the process of court, and capable of
giving evidence, shall be examined;
(v)The attesting witness should speak not only about
the testator's signatures but also that each of the
witnesses had signed the will in the presence of the
testator;
(vi)If one attesting witness can prove the execution
of the Will, the examination of other attesting
witnesses can be dispensed with;
(vii)Where one attesting witness examined to prove
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the Will fails to prove its due execution, then the
other available attesting witness has to be called to
supplement his evidence

(viii)Whenever there exists any suspicion as to the
execution of the Will, it is the responsibility of the
propounder to remove all legitimate suspicions
before it can be
accepted as the testator's last Will. In such cases,
the initial onus on the propounder becomes heavier.
(ix) The test of judicial conscience has been evolved
for dealing with those cases where the execution of
the Will is surrounded by suspicious circumstances.
It requires to consider factors such as awareness of
the testator as to the content as well as the
consequences, nature and effect of the dispositions
in the Will; sound, certain and disposing state of
mind and memory of the testator at the time of
execution; testator executed the Will while acting on
his own free Will;
(x) One who alleges fraud, fabrication, undue
influence et cetera has to prove the same. However,
even in the absence of such allegations, if there are
circumstances giving rise to doubt, then it becomes
the duty of the propounder to dispel such suspicious
circumstances by giving a cogent and convincing
explanation.

(xi) Suspicious circumstances must be 'real,
germane and valid' and not merely 'the fantasy of
the doubting mind". Whether a particular feature
would qualify as 'suspicious' would depend on the
facts and circumstances of each case. Any
circumstance raising
suspicion legitimate in nature would qualify as a
suspicious circumstance for example, a shaky
signature, a feeble mind, an unfair and unjust
disposition of property, the propounder himself
taking a leading part in the making of the Will under
which he receives a substantial benefit, etc.

11. In short, apart from statutory compliance,
broadly it has to be proved that (a) the testator signed the
Will out of his own free Will, (b) at the time of execution he
had a sound state of mind, (c) he was aware of the nature
and effect thereof and (d) the Will was not executed under
any suspicious circumstances.”

20. The Apex Court has restrained the Courts while
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dealing with the probate of a will to not enter into to decide the

question of title. It has been held by the Apex Court in the case

of Chiranjilal Shrilala Goenka vs. Jasjit Singh & Ors. reported

in (1993) 2 SCC 507 in paragraph no. 15 as follows:

“15. In Ishwardeo Narain Singh v. Smt Kamta
Devi 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 proceedings
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 question 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 manifested 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 and the legal
character of the executor. Probate court does not decide
any question of title or of the existence of the property itself.

(emphasis supplied)
21. The above principle of law has been reiterated

by the Hon'ble the Supreme Court in the case of Kanwarjit

Singh Dhillon Vs. Hardyal Singh Dhillon, reported in (2007)

11 SCC 357, in paragraphs nos. 11 and 12 as under:

"11. As noted hereinearlier, the suit for declaration
of title and injunction has been filed by the
appellant inter alia on the allegations that the suit
properties are joint family properties of HUF of
which the appellant and his two brothers Hardyal
Singh Dhillon and Harbans Singh Dhillon, mother
Surjit Kaur and unmarried daughter Amarjit Kaur
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are members. It has also been claimed by the
appellant in the suit that by utilising the income
from the ancestral agricultural land, various
properties including the suit properties were
acquired. Such being the allegations made in the
plaint which can only be decided on trial after
parties are permitted to adduce evidence in respect
of their respective claims, it is difficult to hold that
only because probate of the will of late S. Kirpal
Singh has been granted, the suit for title and
injunction must be held to be not maintainable in
law. It is well-settled law that the functions of a
Probate Court are to see that the will executed by
the testator was actually executed by him in a sound
disposing state of mind without coercion or undue
influence and the same was duly attested. It was,
therefore, not competent for the Probate Court to
determine whether late S. Kirpal Singh had or had
not the authority to dispose of the suit properties
which he purported to have bequeathed by his will.
The Probate Court is also not competent to
determine the question of title to the suit properties
nor will it go into the question whether the suit
properties bequeathed by the will were joint
ancestral properties or acquired properties of the
testator." (emphasis supplied)
12. In Chiranjilal Shrilal Goenka v. Jasjit Singh
[(1993) 2 SCC 507] this Court while upholding the
above views and following the earlier decisions of
this Court as well as of other High Courts in India
observed in para 15 at SCC p. 515 which runs as
under:
“15. In Ishwardeo Narain Singh v. Kamta Devi
[(1953) 1 SCC 295 : 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 proceedings 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 question 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 manifested in the fascicule of the provisions
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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
and the legal character of the executor. Probate
Court does not decide any question of title or of the
existence of the property itself.”
(emphasis supplied)
That being the position and in view of the nature of
allegations made in the plaint, we do not find any
reason as to how the High Court as well as the civil
court could come to a conclusion that after the
probate of the will executed by late S. Kirpal Singh
was granted, the suit for declaration for title and
injunction on the above allegation could not be said
to be maintainable in law. The High Court also
while holding that the suit was not maintainable, in
view of the probate granted of the will of late S.
Kirpal Singh had relied on a decision of this Court,
as noted hereinearlier, in Rukmani Devi [(1985) 1
SCC 144] . We are not in a position to agree with
the High Court that this decision could at all be
applicable in the facts and circumstances of the
present case. A plain reading of this decision would
not show that after the grant of probate by a
competent court, the suit for title and permanent
injunction cannot be said to be maintainable in law.
What this Court held in that decision is that once a
probate is granted by a competent court, it would
become conclusive of the validity of the will itself,
but, that cannot be decisive whether the Probate
Court would also decide the title of the testator in
the suit properties which, in our view, can only be
decided by the civil court on evidence. It is true that
the probate of the will granted by the competent
Probate Court would be admitted into evidence that
may be taken into consideration by the civil court
while deciding the suit for title but grant of probate
cannot be decisive for declaration of title and
injunction whether at all the testator had any title to
the suit properties or not.”
22. From the perusal of the judgment of the learned

Probate Court, it appears that learned Probate Court has gone

into the question of determining the nature of property was
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ancestral or purchased property and documentary evidence

adduced in that regard and then concluded to determine the

source of title and, thereafter, passed order that the petitioner

failed to prove the duly execution and genuineness of the will

dated 02.12.2006 to have been executed by Rupan Matho in

favour of Pushpa Devi. The Probate Court cannot decide any

question of title or of the existence of property. In light of the

law laid down by the Apex Court in the case of Krishna Kumar

Birla (supra) and Kanwarjit Singh Dhillon (supra), the

impugned judgment/order dated 02.07.2018 passed in T.

(Prob.)S. No. 16 of 2009 is without jurisdiction being nullity is

hereby quashed and set aside.

23. As I have already quashed and set aside the

impugned judgment dated 02.07.2018, I allow the I.A. No. 2 of

2025, compromise petition filed under Order 23 Rule 3 Read

with Section 151 of the Code of the Civil Procedure, 1908 in

view of the fact that the parties have settled the matter outside

the Court bringing the fact that they want to buy peace of mind

and not to fight case in Court. The said I.A. is duly accompanied

by the individual affidavit filed by the appellant Pushpa Devi

and the respondent Ashok Mahto. A specific statement has been

made in paragraph no. 8 of the supplementary affidavit that “in
Patna High Court FA No.110 of 2018 dt.22-01-2026
17/17

the interest of justice, compromise petition being I.A. No. 2 of

2025 may be allowed and First Appeal No. 110 of 2018 be

disposed of in terms of the compromise petition”.

24. I find that the terms of settlement/compromise

are lawful and there is no legal impediments or any condition

imposed in accepting the same by this Court.

25. As the parties have already entered into

compromise, the appellant becomes entitled to the schedule

property as mentioned in the compromise petition. The matter is

remitted back to the learned Probate Court, Nalanda to give

effect to the compromise petition entered into between the

parties in accordance with law.

26. Accordingly, the appeal stands disposed of, so

also pending application(s), if any.

27. There shall be no order as to cost.

(Purnendu Singh, J)
mantreshwar/-
AFR/NAFR A.F.R.
CAV DATE N/A
Uploading Date 29.01.2026
Transmission Date N/A

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