Holding

A grant of probate does not bar a civil suit for declaration of title and injunction; the probate court is not competent to decide title or the nature of the property.

Summary

The appellant, Kanwarjit Singh Dhillon, filed a civil suit seeking a declaration that certain immovable and movable properties left by his father, the late S. Kirpal Singh, were joint Hindu family assets and an injunction restraining the respondent from alienating them. The respondent had obtained probate of an unregistered will bequeathing those properties to him, and the lower courts dismissed the suit on the ground that probate barred any further civil action. The Supreme Court held that a probate court's function is limited to confirming the validity of a will and the executor's appointment, not to determine title to the property or whether the bequest concerns joint family assets. Consequently, the grant of probate does not render a suit for declaration of title and injunction non‑maintainable. The Court set aside the decisions of the trial and High Courts and directed the trial court to frame issues and decide the suit on its merits. The judgment also noted that the preliminary issue could not be decided in isolation under Order XIV, Rule 2 of the CPC.

Issues considered

Whether a civil suit for declaration of title and permanent injunction is maintainable after probate of a will has been granted.
Whether the grant of probate by a competent probate court precludes a civil court from adjudicating the title to the subject property.
Whether the probate court is competent to determine if the testator had authority to dispose of joint Hindu family property.

Legislation cited

Code of Civil Procedure, 1908s. Order XIV Rule 2
Indian Succession Act, 1925

Subjects

probatesuccessionjoint Hindu familycivil suit maintainabilitytitle disputeinjunctionjurisdictionCode of Civil Procedure

Judgment

A KANWARJIT SINGH DIDLLON
v.
HARDYAL SINGH DHILLON AND ORS.

OCTOBER 12, 2007
B
[TARUN CHATTERJEE AND DALVEER BHANDARI, JJ.]

Succession-Grant of probate-Maintainability of suit
thereafter-On strength of a will probate granted with respect to
C properties left by testator-Suit for declaration that said properties
were joint Hindu family properties-Civil court and High Court
allowing preliminary objection that after grant ofprobate by competent
probate court, suit was not maintainable-HELD: Functions of a
probate court are to see that the will executed by the testator was
D 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 probate court to determine whether the
testator had or had not the authority to dispose ofthe suit properties
which he purported to have bequeathed by his will-Probate court is
E also not competent to determine the question of title to the suit
properties nor will it go into the question whether the suit properties
bequaethed by Will were joint ancestral properties or acquired
properties ofthe testator-Suit for declaration oftitle and injunction
has been filed by the appellant inter alia on the allegations that suit
F properties are jointfamily properties ofHUF-It has also been claimed
by appellant in the suit that by utilizing income from ancestral
agricultural land, various properties including 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
G respect oftheir respective claims, it is difficult to hold that only because
probate of the Will has been granted, the suit for title and injunction
must be held to be not maintainable in law-Judgments of the High
Court as well as ofthe trial court are set aside-Trial court is directed
to decide the suit after framing issues, including the issue of
H 368
.
)
KANWARJIT SINGH DHILLON v. HARDYAL SINGH 369
DHILLON
:-.
'r
maintainability of suit after probate being granted, if not already A
framed in the meantime, and dispose ofthe same expeditiously.

Chiranjilal Shrilal Goenka v. Jasjit Singh and Ors., [1993) 2 sec
507, relied on.
B
Smt. Rukmani Devi & Ors. v. Narendra Lal Gupta, (1985] 1 sec
~ 144, held inapplicable.
r CIVIL APPELLATE JURISDICTION: Civil Appeal No. 4890 of
2007.
From the Judgment and Order dated 22.3.2004 of the High Court c
of Punjab and Haryana at Chandigarh in C.R. No. 3861/2002.
Anil Nauriya and Sumita Haz.arika for the Appellant.
., Pradeep Gupta, K.K. Mohan, Suresh Bharati, Gagandeep Singh
' D
Kandhari, Mithilesh Arya and Laxmibai for the Respondents.
~
The Order of the Court was delivered by
ORDER
1. Delay condoned. E
2. Leave granted.
3. This appeal is directed against the judgment and final order dated
22nd of March, 2004 passed by the High Court of Punjab and Haryana
,._ at Chandigarh in Civil Revision No.3861 of2002 whereby an order dated F'
- 18th of January, 2000 of the learned Civil Judge, Jallandhar, dismissing a
suit for declaration and pennanent injunction of the appellant, was affirmed.
4. Originally, the suit properties stood in the name oflshar Singh
(paternal grandfather of the appellant) which was subsequently mutated
in the name of his two sons, S.H'.l?llfa Singh and S.Kirpal Singh. Late G
,.i
S.Kirpal Singh was the father of the appellant. Late S.Kirpal Singh died
' leaving behind some properties, both movable and immovable comprising
agricultural land measuring 48 Kanai 10 Marlas situated at Jallandhar, a
residential house bearing No.148, Sector 27A, Chandigarh and two
H
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370 SUPREME COURT REPORTS [2007] 11 S.C.R.

A deposits of Rs.20,000/- and Rs.10,000/- respectively [hereinafter referred
-c ~

to as ''the suit properties"]. According to the appellant, the suit properties
left behind by late S.Kirpal Singh were their ancestral properties. After
eight years of the death of late S.Kirpal Singh, the respondent No. l
propounded an unregistered Will left behind by late S.Kirpal Singh and
B applied for probate thereof in the High Court of Punjab and Haryana.
As per the said Will executed by late S.Kirpal Singh, the suit properties,
both movable and immovable, were bequeathed by late S.Kirpal Singh ...
in favour of respondent No. I herein. Only a right of residence was given ~
in favour of the widow of late S.Kirpal Singh and his unmarried daughter.
c In the aforesaid probate proceeding, objections were, however, filed by
the appellant alleging that the said Will was a forged and fabricated one.
However, the probate was granted to the respondent No. l by the High
Court and thereafter, the matter came up before this Court which also
affirmed the order of the High Court granting probate in respect of the
D Will executed by late S.Kirpal Singh. Subsequent to the grant of probate \"-
of the Will oflate S.Kirpal Singh in respect of the suit properties more
precisely on 9th of March, I 995, the appellant instituted a civil suit for ).._,_
declaration and injunction wherein the appellant sought a declaration to
the effect that the suit properties were joint Hindu family properties.
E 5. In the suit filed at the instance of the appellant, the respondent
No. I raised a preliminary issue by filing an application saying that after
the probate having been granted of the Will executed by late S.Kirpal
Singh, the Civil Court had no jurisdiction to proceed with the suit for
declaration oftitle and permanent injunction and accordingly the suit should
}-
F be dismissed. The preliminary issue framed by the Civil Court is to the
following effect : ~
"Whether this Court has jurisdiction in view of the probate granted
by the Hon'ble Punjab & Haryana High Court vide order dated
April 5, I991, confirmed by the Divisional Bench of Punjab &
G Haryana High Court on I st December, 1993 and confirmed by
the Hon'ble Supreme Court oflndia on 2.7.1994."
~- ~
6. By an order dated 18th of January, 2000, the learned Civil Judge,
'
Jallandhar dismissed the suit on a finding that once the probate was f
H granted by a competent probate court, and in view of the fact that in the
KANW ARJIT SINGH DHILLON v. HARDYAL SINGH 371
DHILLON
.. '-)-
suit the appellant had not challenged the probate proceeding, the Civil A
Court cannot have any jurisdiction to entertain the suit on the aforesaid
ground and the suit was dismissed.
7. Feeling aggrieved, a revision petition was filed before the High
Court and the High Court by the impugned judgment and order had also
affirmed the order of the Civil Court holding that the suit was not B
maintainable after the grant of probate by the competent probate court.
4
The present special leave petition has been filed against the aforesaid order
...,,
of the High Court in respect of which leave has already been granted .
8. In our view, the High Court as well as the Civil Court have acted c
illegally and with material irregularity in the exercise of their jurisdiction in
dismissing the suit on the aforesaid preliminary issue by holding that after
the probate having been granted by the competent probate court and
affmned by this Court, the Civil Court had no jurisdiction to proceed with
the suit. D
9. It is true that probate of the Will executed by late S.Kirpal Singh
~ has been granted by the competent probate court which relates to the
suit properties. But we have to look into the allegations made in the plaint.
The plaint clearly states that the civil suit was for a declaration to the effect
that the suit properties were joint Hindu family properties of the HUF of E
which the appellant and his two brothers Hardyal Singh Dhillon and
Harbans Singh Dhillon, mother Surjit Kaur and unmarried daughter
Amarjit Kaur were the members. Consequential relief for permanent
injunction was also sought restraining the respondent No.1 from alienating
the suit properties, in any manner, whatsoever. Besides claiming that the F
.,;-- suit properties were the joint family properties, it was also averred in the
plaint that late S.Kirpal Singh was the Karta of the aforesaid HUF and
by utilizing the income from their ancestral agricultural land had acquired
various properties including the suit properties.
10. The High Court by the impugned order, relying on a decision of G
this Court in the case of Smt. Rukmani Devi and Ors. v. Narendra Lal
Gupta, [1985] 1 SCC 144 affirmed the order of the civil court by holding
that a probate granted by a competent probate court was conclusive of
the validity of the Will of late S.Kirpal Singh until it was revoked and no
H
~
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372 SUPREME COURT REPORTS (2007] 11 S.C.R.
-(_, ..
A evidence could be admitted to impeach the said Will except in a. proceeding
taken for revoking the probate. According to the High Court, a decision
of the probate court would be a judgment in rem which would not only
be binding on the parties to the probate proceeding but would be binding
on the whole world. Upon the aforesaid finding, the High Court had
B affirmed the order of the. civil court holding that the suit must be dismissed
in view of the fact that the probate court had already granted probate in
respect of the Will executed by late S.Kirpal Singh relating to the suit ,I-

properties. We are not in a position to agree with the views expressed ~

by the High Court in the impugned order nor are we in agreement with
c the order passed by the civil court. As noted herein earlier, 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 the
HUF of which the appellant and his two brothers Hardyal Singh Dhillon
and Harbans Singh Dhillon, mother Surjit Kaur and unmarried daughter
D Amarjit Kaur are members. It has also been claimed by the appellant in
the suit that by utilizing 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
E claims, it is difficult to hold that only because probate of the Will oflate
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
F coercion or undue influence and the same was duly attested. It was,
therefore, not competen! 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
G 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.
)y
11. In Chiranjilal Shrilal Goenka v. Jasjit Singh and Ors., [1993)
2 SCC 507, this Court while upholding the above views and following
H the earlier decisions of this Court as well as of other High Courts in India
'
t
KANWARJIT SINGH DHILLON v. HARDYAL SINGH 373
DHILLON
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' observed in paragraph 15 at page 515 which runs as under:- A
"In lshwardeo Narain Singh v. Smt. Kamta Devi this Court h~ld
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 B
~
the testator had sound disposing mind. The question whether a I

particular bequest is good or bad is not within the purview of the
y
probate court. Therefore, the only issue in a probate proceediJilg
relates to the genuineness and due execution of the will and the
court itself is under duty to determine it and perverse the original c
will in its custody. The Succession Act is a self-contained code
insofar as the question of making an application for probate, gra'nt
or refusal of probate or an appeal carried against the decision of I

the probate court. This is clearly manifested in the fascicule of the
provisions of the Act. The probate proceedings shall be conduct~d D
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 mote
than establish the factum of the will and the legal character of the E
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 F
_r 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 G
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 herein earlier, in
the case of Rukmani Devi (supra). 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 H
I

~

- SUPREME COURT REPORTS (2007] 11 S.C.R.
'
374

A 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
B would also decid~ 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
i--
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
c decisive for declaration of title and injunction whether at all the testator
had any title to the suit properties or not._
12. Such being the position, we, therefore, hold that the High Court
as well as the trial court had acted illegally in dismissing the suit of the
appellant on the aforesaid sole ground after framing the preliminary issue.
D For the reasons aforesaid, the judgments of the High Court as well as of
the trial court are set aside. The appeal is allowed to the extent indicated
~
above. The trial court is now directed to decide the suit after framing
issues, including the issue of maintainability of the suit after the probate
being granted, if not already framed in the meantime and dispose of the
E same within a year from the date of production of a copy of this order
before the trial court.
13. Before parting with this judgment, we may express one more
aspect. As noted herein earlier, a suit was dismissed by the trial court
which was affirmed by the High Court in revision after framing preliminary
F
issue which we have already noted herein earlier. A question may arise
\-
whether the preliminary issue could be raised without deciding the other
issues and the suit could be dismissed in view of Order XIV, Rule 2 of
the Code of Civil Procedure. In view of our decision in this matter, we
do not feel it proper to dwell on this aspect which is kept open for future
G consideration.

14. For the aforesaid reasons, the impugned order is set aside. The ~
appeal is allowed. There will be no order as to costs.
RP. Appeal allowed.
H