NIKHIL vs RAMESH CHANDRA

[2026:RJ-JD:53166]
HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JODHPUR
S.B. Civil Miscellaneous Appeal No. 1036/2026
CNR: RJHC010177502026 | URN: CMA / 1974U / 2026
Nikhil S/o Shri Narendra Kumar Indoria, Aged About 34 Years,
Resident Of Ward No. 11, Mavliyon Ka Bas, Ratangarh, District
Churu
----Appellant
Versus
1. Ramesh Chandra S/o Late Shri Jaidev Prasad Indoria,
Resident Of Ward No. 11, Mavliyon Ka Bas, Ratangarh,
District Churu
2. Narendra Kumar S/o Late Shri Jaidev Prasad Indoria,
Resident Of Ward No. 11, Mavliyon Ka Bas, Ratangarh,
District Churu.
3. Santosh Kumar S/o Late Shri Jaidev Prasad Indoria,
Resident Of Ward No. 11, Mavliyon Ka Bas, Ratangarh,
District Churu
4. General Public, General Public
----Respondents
Connected With
S.B. Cross Objection (Civil) No. 22/2026
CNR: RJHC010312492026 | URN: XOBJC / 37U / 2026
Ramesh Chandra S/o Sh. Jaidev Prasad Indoria, Aged About 69
Years, Resident Of Ward No. 11, Mavliyon Ka Bas, Ratangarh,
District Churu
----Appellant
Versus
1. Nikhil S/o Shri Narendra Kumar Indoria, Aged About 34
Years, Ward No. 11, Malviyo Ka Bas, Ratangarh District
Churu
2. Narendra Kumar S/o Late Sh. Jaidev Prasad Indoria, Ward
No. 11, Malviyo Ka Bas, Ratangarh District Churu
3. Santosh Kumar S/o Late Sh Jaidev Prasad Indoria, Ward
No. 11, Malviyo Ka Bas, Ratangarh District Churu
4. General Public, General Public
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----Respondents
For Appellant(s) : Mr. Narendra Thanvi
Mr. Mahendra Thanvi
For Respondent(s) : Mr. Sheetal Kumbhat
Mr. Devam Jain
HON'BLE MR. JUSTICE FARJAND ALI
Judgment
Reportable-
Date of Conclusion of Arguments : 04/08/2026
Date on which Order is Reserved : 04/08/2026
Full Order or Operative Part : Full Order
Date of Pronouncement : 29/10/2026
By the Court:-
Grievance
1. The present civil miscellaneous appeal preferred under
Section 299 of the Indian Succession Act, 1925, and the
connected cross-objection arise out of the judgment dated
19.01.2026 passed by the learned Additional District Judge,
Ratangarh, District Churu, in Civil Misc. Case No. 11/2023,
whereby the application for grant of probate instituted by the
appellant, Nikhil Indoria, under Sections 272 and 276 of the
Act of 1925, on the strength of a document dated
21.02.2014 allegedly executed by his grandfather, Late Shri
Jaidev Prasad Indoria, was rejected upon allowing the
application preferred by respondent No. 1 under Order VII
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Rule 11 read with Section 151 of the Code of Civil Procedure,
1908.
Facts
2. The controversy emanates from agricultural land situated in
Village Ratangarh, District Churu, including land bearing
Khasra No. 426 admeasuring 21 Bighas and 10 Biswas, in
respect of which the testator had executed a registered Will
dated 21.10.2013, bequeathing the aforesaid holding to his
son, Shri Ramesh Chandra Indoria. The appellant asserts
that the testator subsequently executed another
testamentary instrument dated 21.02.2014, purporting to
bequeath 11 Bighas and 5 Biswas out of the aforesaid
holding in his favour. Following the demise of the testator on
17.11.2014, Mutation Entry No. 2753 dated 15.12.2014 was
effected on the basis of the earlier registered Will,
whereafter the appellant instituted revenue proceedings
seeking recognition of his alleged rights and also challenged
the mutation before the revenue authorities. Those
proceedings were dismissed. Subsequently, on 22.11.2023,
the appellant instituted the present probate proceedings.
Respondent No. 1 resisted the same, inter alia, contending
that the document dated 21.02.2014 did not constitute a
Will, disclosed no cause of action, suffered from
inconsistencies regarding the measurement of the land, and
had been relied upon after an inordinate delay, rendering the
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proceedings barred by limitation under Article 137 of the
Limitation Act, 1963. The learned trial court, while accepting
the objection under Order VII Rule 11 CPC, held that the
document in question was not a Will and consequently
rejected the probate application, without adjudicating the
objection founded upon limitation. The appellant has assailed
the rejection of the probate proceedings, whereas
respondent No. 1, through the connected cross-objection
under Order XLI Rule 22 CPC, challenges the omission to
reject the proceedings on the additional ground of limitation.
The controversy, therefore, calls for examination of the
permissible scope of scrutiny at the threshold stage, the
distinction between the existence of a testamentary intention
and its ultimate proof in accordance with law, and the
sustainability of the objection founded upon limitation,
without prejudging the genuineness, due execution or
ultimate legal efficacy of the disputed instrument.
Observations and Reasons
3. Heard. The record has been examined with due
circumspection, and the rival contentions have been
considered in the context of the limited controversy arising in
the present proceedings.
4. The principal question requiring determination is whether the
learned trial court was justified in conclusively holding, at the
threshold stage, that the document dated 21.02.2014 did
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not constitute a Will and, on that premise, rejecting the
probate application by invoking Order VII Rule 11 CPC. The
connected question is whether the objection founded upon
limitation could, in the facts and circumstances of the case,
be conclusively determined without a proper examination of
the relevant pleadings and the circumstances bearing upon
the accrual of the right to seek probate.
5. Before proceeding further, it is necessary to appreciate the
juridical nature of a Will. A Will is a testamentary instrument
embodying the intention of a person concerning the
disposition of his property, to take effect upon his death. Its
essential characteristic lies in the expression of a
testamentary intention, subject to the legal requirements
governing its execution, proof and operation. The
nomenclature assigned to a document is not, by itself,
determinative of its legal character; equally, the mere use of
the expression 'Will' does not conclusively establish that the
instrument possesses the requisite testamentary attributes.
The document must ultimately be construed in its entirety, in
the light of the language employed, the intention discernible
therefrom and the applicable provisions of law.
6. In the present case, the document dated 21.02.2014
expressly refers to the earlier Will dated 21.10.2013 and
records that the testator is bequeathing a specified portion of
the land comprised in Khasra No. 426 in favour of his
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grandson, the appellant herein. It further records that the
specified land shall remain under the right of the appellant
from that date onwards and concludes by referring to the
document as a Will being executed with reference to the
earlier testamentary disposition. These recitals, read
cumulatively, prima facie disclose an assertion of
testamentary intention and a purported disposition of
property in favour of an identified beneficiary.
7. The circumstance that the instrument does not employ an
express formulation stating that the disposition shall take
effect only after the death of the executant cannot, in
isolation, be treated as conclusive of its legal character. The
expression that the beneficiary shall have rights in the land
'from today onwards' may bear upon the construction of the
instrument and may require reconciliation with the essential
attributes of a testamentary disposition. Whether such
language signifies an immediate transfer of rights during the
lifetime of the executant, a testamentary disposition
intended to operate upon his demise, or an otherwise legally
ineffective arrangement is a matter that must be determined
upon a proper construction of the entire instrument and the
material lawfully available for that purpose.
8. It is equally necessary to bear in mind that the absence of an
express recital concerning the commencement of the
instrument's operation after the death of the executant does
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not, by itself, dispense with the requirement of examining
the document as a whole. The Court must distinguish
between a document that, on its face and upon a legally
permissible construction, is incapable of constituting a Will
and one whose testamentary character, due execution or
legal efficacy remains open to adjudication. At the stage of
considering an objection under Order VII Rule 11 CPC, these
two situations cannot be treated as interchangeable.
9. The scope of Order VII Rule 11 CPC is circumscribed by the
statutory grounds enumerated therein. For the purpose of
determining whether the proceedings disclose a cause of
action or are liable to rejection on a legally sustainable
threshold objection, the material averments and the
document upon which the claim is founded must be
considered in their proper perspective. The provision does
not ordinarily contemplate a premature adjudication of
disputed questions requiring evidence, nor does it authorise
the Court to conduct a mini-trial for determining the ultimate
merits of the claim.
10. The principles governing the exercise of jurisdiction
under Order VII Rule 11 CPC require the Court to examine
the substance of the case rather than be guided by isolated
expressions or a conclusive determination of disputed facts.
Where a claim is founded upon a particular instrument, the
Court may examine the instrument to the extent necessary
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to determine whether the statutory grounds for rejection are
attracted. However, such scrutiny must not be extended into
a final adjudication of the authenticity, due execution, legal
character or evidentiary sufficiency of the instrument where
those matters require adjudication in accordance with law.
11. In the present case, the appellant has not founded his
claim upon a document wholly unconnected with the relief
sought. The document dated 21.02.2014 identifies the
testator, refers to the earlier Will, identifies the beneficiary
and purports to specify the land intended to be conferred
upon him. Whether the recitals are legally sufficient to
constitute a testamentary disposition, whether the
instrument satisfies the requirements of Section 63 of the
Indian Succession Act, 1925, and whether it can be proved
in the manner prescribed by law are distinct questions. The
existence of these questions does not, in the circumstances
of the present case, justify their conclusive determination
against the appellant at the threshold merely by treating the
instrument as incapable of constituting a Will.
12. The objection concerning the description and
measurement of the land also requires consideration in its
proper legal context. The earlier registered Will is stated to
concern 21 Bighas and 10 Biswas in Khasra No. 426,
whereas the subsequent instrument purports to confer 11
Bighas and 5 Biswas upon the appellant. The apparent
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discrepancy in the description or measurement of the
property may have a bearing upon the construction of the
instrument, the identification of the subject matter of the
alleged bequest and the relief ultimately capable of being
granted. Nevertheless, unless the instrument and the
admitted material unequivocally establish a statutory ground
for rejection, such discrepancy cannot, without further
examination, be elevated into a conclusive determination
that the document is not a Will.
13. It is also material that the earlier Will is stated to have
been executed and registered on 21.10.2013, whereas the
disputed document is dated 21.02.2014. The legal effect of
the subsequent instrument upon the earlier testamentary
disposition, including the extent to which any inconsistency
between them may affect the bequest claimed by the
appellant, is a matter requiring consideration in accordance
with the applicable law of testamentary succession. The
mere existence of an earlier registered Will does not, by
itself, render every subsequent testamentary disposition
legally inconceivable. Conversely, the execution of a
subsequent document does not automatically establish the
revocation, modification or displacement of the earlier Will.
These questions must be determined upon an appropriate
construction of the instruments and the evidence, without
expressing any premature conclusion at this stage.
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14. The question whether the appellant will ultimately
succeed in establishing that the document dated 21.02.2014
is a valid and enforceable Will is, therefore, distinct from the
question whether the probate proceedings are liable to be
rejected at their inception. The former involves adjudication
of the instrument's legal character, compliance with the
prescribed requirements of execution and proof, and the
nature and extent of the disposition, whereas the latter is
governed by the limited parameters of the statutory
provision invoked for rejection. A claim may ultimately fail
upon adjudication without necessarily being liable to
rejection at the threshold.
15. The distinction assumes particular significance in
probate proceedings. The grant of probate is a matter
governed by the Indian Succession Act, 1925, and cannot be
founded merely upon the assertion of a beneficiary. The
propounder must establish the Will in accordance with the
applicable statutory requirements, including the
requirements concerning execution and proof, wherever
attracted. The observations made herein shall not be
construed as dispensing with any such requirement or as
conferring any presumption of validity upon the disputed
instrument. They are confined to the question whether its
legal character could have been conclusively negatived at the
preliminary stage on the reasoning adopted by the learned
trial court.
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16. The objection regarding limitation also warrants
separate consideration. Respondent No. 1 has invoked Article
137 of the Limitation Act, 1963, contending that the probate
proceedings were instituted after an inordinate delay from
the date of execution of the disputed instrument and the
demise of the testator. Reliance has also been placed upon
the mutation effected on 15.12.2014, the revenue
proceedings instituted in 2019, and the subsequent
challenge to the mutation before the District Collector,
Churu, which was dismissed on 04.07.2022.
17. The applicability of Article 137 to an application seeking
probate cannot be determined merely by computing the
elapsed period from the date of execution of the alleged Will
or the date of the testator's demise. The relevant inquiry
includes the point at which the right to apply accrued in the
circumstances of the particular case. The decision in
Kunvarjeet Singh Khandpur v. Kirandeep Kaur , (2008) 8 SCC
463, recognises the applicability of Article 137 to
proceedings for probate and emphasises the significance of
determining when the right to apply accrues. The issue
must, therefore, be considered with reference to the
applicable law and the material circumstances of the case.
18. At the same time, the appellant's participation in earlier
revenue proceedings, his knowledge of the mutation based
upon the registered Will, and his institution of proceedings in
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2019 seeking recognition of rights founded upon the
disputed instrument are circumstances that cannot be
disregarded while examining the objection of limitation.
These circumstances may have a material bearing upon the
chronology of events, the appellant's knowledge of the
competing claim and the point at which it became necessary
for him to seek the relief now claimed. The effect of the
dismissal of the earlier proceedings, the precise relief sought
therein and the legal consequences, if any, flowing therefrom
must also be examined in accordance with law.
19. It would, however, be equally inappropriate to accept
the objection of limitation merely by treating the date of
execution of the disputed document as the commencement
of the prescribed period, without examining the nature of the
relief sought and the circumstances governing the accrual of
the right to apply. The question is not whether delay has
occurred in a chronological sense, but whether, upon
application of the governing statutory provision to the
material facts, the proceedings are legally barred. The
distinction between the existence of delay and the legal
commencement of limitation must be maintained.
20. The learned trial court did not undertake the requisite
examination of the objection founded upon limitation and
proceeded to observe that the issue involved a mixed
question of law and fact, to be determined only after the
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recording of evidence. Such an observation, if understood as
laying down an inflexible rule that every objection of
limitation must necessarily await a full trial, would be too
broad. A plea of limitation may, depending upon the
pleadings and the material available, present a pure question
of law or a mixed question of law and fact. Where the
material dates and the facts attracting the prescribed period
are admitted or unequivocally emerge from the pleadings,
the issue may be determined at the threshold. Where,
however, the accrual of the right to apply or any other
material circumstance remains genuinely disputed and
requires examination, a summary rejection may not be
justified.
21. In the present case, the objection of limitation has
been founded upon several circumstances extending beyond
the mere date of the alleged Will. Their cumulative legal
effect requires consideration in the light of the pleadings, the
documents forming part of the record and the governing
statutory principles. The fact that the appellant instituted
earlier proceedings founded upon the same instrument is
relevant, but its legal consequence for the present probate
application must be determined through a reasoned
assessment rather than by an assumption that the passage
of a particular number of years, by itself, concludes the
issue.
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22. The objection regarding alleged concealment of the
earlier revenue proceedings must likewise be examined in its
proper perspective. The existence of prior proceedings, the
nature of the relief sought therein, the issues raised and the
orders passed may be relevant to the maintainability of the
present proceedings, limitation and the permissible scope of
adjudication. However, the mere existence of previous
litigation does not, without examination of its nature and
legal effect, automatically establish that the subsequent
probate application is liable to rejection. Any plea founded
upon suppression, abuse of process or the binding effect of
an earlier adjudication must be determined in accordance
with the applicable legal principles and the material available
on record.
23. The Court is conscious that probate proceedings cannot
be permitted to become an instrument for reopening matters
concluded by competent forums or for circumventing binding
adjudications. Equally, an objection founded upon such
considerations must be supported by an examination of the
relevant proceedings and the legal consequences flowing
therefrom. The competing contentions must be considered
without presuming either that the earlier revenue
proceedings conclusively determine the testamentary
controversy or that the appellant is entitled to disregard their
consequences.
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24. In view of the foregoing discussion, this Court is of the
considered opinion that the learned trial court entered into a
premature and conclusive determination of the legal
character of the document dated 21.02.2014 while
considering the application under Order VII Rule 11 CPC. The
recitals of the document disclose a purported testamentary
disposition in favour of the appellant, and the question
whether the instrument ultimately satisfies the legal
requirements of a Will ought not to have been conclusively
decided at the threshold in the manner adopted by the
learned trial court. The question of limitation, though
specifically raised by respondent No. 1, also requires a
reasoned determination with reference to the governing
statutory provision, the accrual of the right to apply and the
relevant circumstances emerging from the record.
25. Consequently, neither the appellant's entitlement to
probate nor the respondent's objection of limitation can be
finally determined on the basis of the observations made in
the impugned judgment. The appropriate course is to set
aside the impugned judgment, remit the matter to the
learned trial court and direct it to adjudicate the application
for probate in accordance with law after affording the parties
an adequate opportunity of hearing. The learned trial court
shall independently examine the legal character, due
execution and proof of the alleged Will, the requirements of
the Indian Succession Act, 1925, the objection of limitation
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under Article 137 of the Limitation Act, 1963, and all other
objections lawfully available to the parties.
26. It is clarified that the observations made herein are
confined to determining the impermissibility of the
premature rejection of the probate proceedings on the
reasoning adopted by the learned trial court. Nothing stated
herein shall be construed as a finding that the document
dated 21.02.2014 is a valid Will, that the appellant has
acquired any right in the disputed land, or that the objection
of limitation is devoid of merit. All such questions shall
remain open for independent determination by the learned
trial court in accordance with law.
27. Operative Order
In view of the foregoing discussion, the following order is
passed:
(i) The connected civil miscellaneous appeal preferred by the
appellant, Nikhil Indoria, is allowed.
(ii) The judgment dated 19.01.2026 passed by the learned
Additional District Judge, Ratangarh, District Churu, in Civil
Misc. Case No. 11/2023 is set aside.
(iii) The connected cross-objection preferred by respondent
No. 1 under Order XLI Rule 22 read with Section 96 CPC,
seeking rejection of the probate proceedings on the
additional ground of limitation, is dismissed.
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(iv) The application preferred by respondent No. 1 under
Order VII Rule 11 read with Section 151 CPC stands
rejected, and the probate proceedings are restored to their
original number and remitted to the learned trial court for
adjudication afresh in accordance with law.
(v) The learned trial court shall consider the objection of
limitation independently and by a reasoned order, after
examining the applicable statutory provision, the relevant
pleadings and the material circumstances bearing upon the
accrual of the right to apply. It shall thereafter proceed to
determine the probate application in accordance with law,
without being influenced by any observation in the impugned
judgment or in the present judgment that may be construed
as expressing a concluded opinion on the merits of the
alleged Will.
(vi) The parties shall appear before the learned trial court on
the date fixed by it, and the learned trial court shall
endeavour to dispose of the proceedings expeditiously,
preferably within six months from the date of receipt of the
record, subject to its docket and the requirements of a fair
adjudication.
(FARJAND ALI),J
Crt_7 (1763)
S/344
Divya Daiya
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