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2017 (8) TMI 1727 - CALCUTTA HIGH COURTProbation of the will - contention of Bikash is that Mary withdrew various sums of money from the joint accounts held in the name of Mary and Abha. The moneys that she withdrew belonged to Abha and accordingly formed part of Abha's estate and hence Mary must pay back/deposit all such moneys withdrawn by her. HELD THAT:- A probate court is required to decide whether the Will in question was the last Will of the testator, whether the same was duly attested by at least two witnesses and whether the testator had mental capacity to execute the Will. The Probate Court has also the jurisdiction to consider whether execution of the Will was vitiated by fraud, undue influence, coercion etc. being practised upon the testator or whether the Will was executed by the testator under some mistake or induced by false representation. It is settled law that a Probate Court is not entitled to go into the question as to whether or not the testator had title or possession in respect of the property covered by the Will. The probate granted by a Testamentary Court does not establish that the testator had title to the property covered by the Will. It is not the duty of the Probate Court to consider any issue as to the title of the testator to the property with which the Will in question purports to deal or as to what disposing power the testator may have possessed over such property or as to the validity of the bequests made. It would be most injudicious to upset the settled practice of this court which has been uniformly followed since a long time and for the Testamentary Court to embark on the adjudication of difficult questions as to the ownership of the properties bequeathed by a Will. The Probate Court has no authority or jurisdiction to decide questions of title. If a Will purports to deal with a property which belongs not to the testator but to somebody else, the remedy of that person is to approach the Civil Court to establish his right of ownership in respect of such property. Such person cannot seek to enlarge the scope of the probate proceeding by applying before the Probate Court to exclude his/her property from the affidavit of assets. Such person has to establish his/her right to such property in an appropriately constituted civil suit following due process of law. The rival claims made by Bikash and Mary in their respective applications are completely beyond the scope and ambit of the present probate proceeding - there are no reason to withhold grant of probate of the said Will. Application disposed off.
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