Whether testator can execute valid will in respect of proper

 From the judgment impugned, it is evident that learned lower court has relied upon Vikas Singh & others vs. Devesh Pratap Singh reported in 2001(2) P.L.J.R. Page-184 on this score, but on minute observation, it is evident that the principle so decided therein has not been properly considered during course of consideration of the controversy relating to adjudication over nature of property. Though the aforesaid judgment while dealing with the issue has not taken into account the definition incorporated under Section 2(h), on the contrary dealt with the issue in terms of Section 59, however, laid down in following way under Para-6:-

"6. As regards the use of the words "his property", it is clear and, if I may say so, implicit that a person can execute a Will like any transfer-deed, only with respect to his own property and not someone else's property and, therefore, nothing much turns on use of those words in Section 59 as to confer jurisdiction on the probate Court to decide any dispute relating to title, ownership, etc. of the testator/testatrix in the property which is the subject-matter of the Will. It is settled legal position that it is not the duty of the probate Court to consider any issue as to title of the testator to the property with which the Will propounded purports to deal or to the disposing power the testator may have possessed over such property or as to the validity of the bequeaths made. See, for example, the case of Kashi Nath v. Dulhin AIR 1941 Patna 475. Proceedings for grant of Probate or Letters of Administration is not suit in the real sense, it only takes the "form" of a regular suit according to the provisions of the Code of Civil Procedure, "as early as may be" vide Section 295 of the Act. Reference may be made to a Division Bench decision of this Court in Sidhnath Bharti v. Jai Narayan Bharti 1994 (1) PLJR 644, a Full Bench decision of the Allahabad High Court in Panzy Ferondes v. M.F. Queoros, AIR 1963 Allahabad 153, and a Division Bench decision of the Calcutta High Court in Batai Lall Banerjee v. Debaki Kumar Ganguly, AIR 1984 Calcutta 16. The grant of Probate or Letters of Administration is decisive only of the Will propounded and not of the title, etc. of the testator to the property. As the issues relating to title, ownership etc. are not to be gone into in such proceedings, it follows that even a favourable decision in favour of the petitioner/plaintiff granting Probate or Letters of Administration in his favour does not operate as res judicata in any future suit which the Objector is at liberty to bring seeking declaration of his right, title, interest, etc. in the property. In the above premises the objection of the objector as to disposing capacity, i.e., ownership of the testatrix is rejected".