Probate basing on Will can be granted even pending suit = there can also be no doubt about the proposition that post Hindu Succession Act, 1956 even if the properties are jointly held, the testator can Will his share in the joint family/ancestral property. Thus, it cannot be said that the probate cannot be granted pending consideration of the suit but the probate would operate qua the property or a share of the property depending on the result of the suit for partition, which is still pending.

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�� IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL No. 8192 OF 2013
AJAY KUMR SHARMA .. APPELLANT(S)
VERSUS
BIRENDRA KUMAR SHARMA & ORS. .. RESPONDENT(S)
WITH
CIVIL APPEAL NO. 8231 OF 2013
O R D E R

  1. Late Feteh Bahadur Singh had 3 sons and 3
    daughters. The dispute pertaining to the Estate of
    Feteh Bahadur Singh, including the plea as to whether
    there are self acquired properties of Feteh Bahadur
    Singh or ancestral which formed subject matter of a
    partition suit bearing No. 123/1993, pending before
    the learned Sub-Judge, Jehanabad, Bihar, titled as,
    �Dr. Birendra Kumar Sharma & Anr. vs. Sri Bishnu
    Kumar Sharma & Ors.
  2. One of the sons, Ajay Kumar Sharma filed a
    probate case seeking probate of a registered Will
    dated 13.05.1981 of late Fateh Bahadur Singh. The
    probate was granted vide judgment dated 29.06.2005.
    Dr. Birender Kumar Sharma, another son and wife of

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the deceased Feteh Bahadur Singh preferred an appeal
which has been allowed in terms of impugned judgment
dated 26.11.2010. The High Court gave the concurrent
finding on the genuineness of the Will. It was,
however, noticed that the testator did not mention
the properties specifically which were the subject
matter of the Will as the details were not set out in
the Will. It is the finding of the High Court that
Ajay Kumar Sharma included in the list of properties
even joint family properties forming the subject
matter of the partition suit. It is, thus, opined
that unless title to those suit properties are
decided, the probate cannot be granted.

  1. Ajay Kumar Sharma preferred Civil Appeal No.
    8192/2013 while Birendra Kumar Sharma preferred Civil
    Appeal No. 8231/2013. Latter appeal is on the aspect
    of the Will being found genuine by both the courts
    below.
  2. We have heard learned counsel for the parties.
  3. Insofar as Civil Appeal No. 8231/2013 is
    concerned, on perusal of the record, the testimony of
    the witnesses and the findings of the two courts
    below, we find no reason to interfere with the
    finding qua the genuineness of the Will. The Civil

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Appeal No. 8231/2013 stands dismissed accordingly.

  1. Insofar as the appeal by Ajay Kumar Sharma is
    concerned, we are of the view that there can be no
    doubt about the proposition that the benefits in
    pursuance of the grant of the Will can only be
    available on determination of the question as to
    which of the properties are joint/ancestral
    properties and which of the properties were
    individually owned by late Fateh Bahadur Singh. That
    is the subject matter of Suit No. 123/1993.
    However, there can also be no doubt about the
    proposition that post Hindu Succession Act, 1956 even
    if the properties are jointly held, the testator can
    Will his share in the joint family/ancestral
    property. Thus, it cannot be said that the probate
    cannot be granted pending consideration of the suit
    but the probate would operate qua the property or a
    share of the property depending on the result of the
    suit for partition, which is still pending.
  2. We are of the view that since the suit has
    already been pending for a long time, the Trial Court
    must proceed expeditiously with the trial of the Suit
    being Suit No. 123/1993. The parties in the suit

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will cooperate to ensure speedy trial. The Trial
Court will make every endeavour to conclude the trial
and pronounce judgment within one year of the receipt
of copy of this order.

  1. To the aforesaid extent, we allow Civil Appeal
    No. 8192/2013 and set aside the impugned order of the
    High court.
  2. The parties to bear their own costs.
    ………………J .
    [ SANJAY KISHAN KAUL ] ...................J. [ K.M. JOSEPH ]

NEW DELHI,
SEPTEMBER 19,2019.

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ITEM NO.105, 105.1 COURT NO.11 SECTION XVI
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Civil Appeal No(s). 8192/2013
AJAY KUMAR SHARMA Appellant(s)
VERSUS
BIRENDRA KUMAR SHARMA & ORS. Respondent(s)
( With appln. For permission to bring on record additional
documents and exemption from filing O.T.)
WITH
C.A. No. 8231/2013 (XVI)
Date : 19-09-2019 These appeals were called on
for hearing today.
CORAM :
HON’BLE MR. JUSTICE SANJAY KISHAN KAUL
HON’BLE MR. JUSTICE K.M. JOSEPH
For Appellant(s)/ Mr. Binod Kumar Singh, Adv.
Respondent(s) Mr.T. Mahipal, AOR
Mr. Shantanu Sagar, AOR
Mr. Smarhar Singh, dv.
For Appellant(s) Mr. Tapesh Kumar Singh, AOR
Mr. Aditya N. Das, Adv.
Mr. Aditya Pratap Singh, Adv.
For Respondent(s) Mr. Satya Mitra, Adv.
Mr. Shantanu Sagar, AOR

UPON hearing the counsel the Court made the following
O R D E R
Civil Appeal No. 8231/2013 is dismissed and
Civil appeal No. 8192/2013 is allowed in terms of the
signed order. The parties to bear their own costs.
Pending applications stand disposed of.

[ CHARANJEET KAUR ] [ ANITA RANI AHUJA ]
A.R.-CUM-P.S. COURT MASTER
[ Signed order is placed on the file ]