Full Text
HIGH COURT OF DELHI
Date of Decision: 31st October, 2019
PRAVEER CHANDRA ..... Petitioner
Through: Mr. Ranjit Sharma, Advocate.
(M:9818493174)
Through: Mr. S. K. Bhattacharya, Mr. Sushil Kalra and Mr. Suresh Bharti, Advocates for R-1. (M:9213107534)
Mr. Binay K. Das and Ms. Priyanka Das, Advocates for R-2 & 3.
(M:9868888234)
JUDGMENT
1. The present petition challenges the impugned order dated 25th April, 2018 by which the Petitioner’s application under Section 10 CPC seeking stay of the partition suit has been dismissed.
2. The brief background is that the testatrix - Late Smt. Shanti Singh had executed an alleged Will dated 17th May, 2009. The Petitioner/Defendant No.6 (hereinafter „Defendant No.6‟) filed probate petition no.46/2011 under the Indian Succession Act, 1925 before the Civil Judge, Motihari, Bihar. The said petition was dismissed in default on 16th April, 2013 and was restored on 17th January, 2017.
3. While the probate petition was dismissed and was yet to be restored, Smt. Aprajita – Respondent no.1 herein (hereinafter „Respondent‟) filed a partition suit before the District Court in Delhi on 20th July, 2015 seeking 2019:DHC:5622 partition of the estate of Late Smt. Shanti Singh.
4. In this background, Defendant No.6 filed an application under Section 10 CPC seeking stay of the partition suit during the pendency of the probate petition. The same was rejected by the Trial Court on 25th April, 2018 by the impugned order. The finding of the Trial Court, after discussing the various case laws including the judgments in Ravi Khanna v. Pankaj Khanna 152(2008) DLT 484 and Kanwarjit Singh Dhillon v. Hardyal Singh Dhillon and Ors., (2007)11 SCC 357 is that the petition seeking probate and proceedings for partition are not required to be stayed on account of the pendency of each other. The conclusion of the Trial Court in the impugned order is as under:
5. The Defendant No.6, thereafter, sought review of the said order. The said review was rejected on 11th October, 2018. Ld. counsel for the Defendant No.6 submits that the issue in the suit is that the Will is forged and fabricated. Until and unless the said issue is adjudicated in the probate proceedings and the probate is either rejected or granted in favour of the Defendant No.6, the partition suit lacks any basis. According to him, therefore, the suit ought to be stayed. He relies on the judgments of the Supreme Court in Chiranjilal Shrilal Goenka (Deceased) through LRs vs. Jasjit Singh And Ors., 1993 SCC (2) 507 and Binapani Kar Chowdhury v. Sri Satyabrata Basu and Anr. [Appeal (Civil) 5784 of 2002, decided on 16th May, 2006]. He also relies on Ashok Kumar Ray v. Smt. Reba Biswas and Ors., AIR 2017 Orissa 48 and Shri Gurmeet Singh Chopra v. Smt. Taruna Chopra & Ors., [CM (M) 305/2010, decided on 22nd March, 2010].
6. On the other hand, ld. counsel for the Respondent submits that a probate petition cannot be considered to be a suit under Section 10 CPC. He also relies upon the judgment in Ravi Khanna (supra) to argue that under similar circumstances, the Court has refused to stay the partition suit. He further relies upon the judgment of the Patna High Court in Amrita v. Rakesh Kumar, [Civil Writ Jurisdiction Case No.6832 of 2013, decided on 11th February, 2016].
7. After going through the judgments cited on behalf of both the parties, the first question is whether a probate petition would constitute a suit under Section 10 CPC.
8. This court agrees with the Patna High Court decision in Amrita (supra) which holds that the nature of the proceedings i.e. the probate proceedings and partition suit are completely different. Probate proceedings are expected to be summary in nature whereas in a partition suit detailed evidence is led by the parties concerned. The Patna High Court in Amrita (supra) observed as under: “ In a petition under Article 227 of the Constitution of India before this Court, learned counsel for the petition refers to an order passed by the Hon‟ble Supreme Court in the case of Nirmala Devi Vs. Arun Kumar Gupta and others reported in (2005) 12 SCC,
505. In the said order the title suit was transferred to be decided along with the probate case. Thus, it is argued that since identical question of law and fact is involved in the Probate Case and the Patna High Court CWJC No.6832 of 2013 dt. 11-02-2016 3 Partition suit, both proceedings either should be decided together or the partition suit should be stayed. Probate proceedings are summary in nature whereas partition suit is plenary in nature where the question of unity of title and possession is to be examined. In the said title suit the legality and validity of the Will can also be examined by the Civil Court. The proceeding in a particular suit and the Probate proceedings are distinct. Proceeding in title suit cannot be stayed which are plenary in nature whereas the Probate proceeding are summary in nature to be granted by a Court of limited jurisdiction. The order of the Supreme Court referred to by the learned counsel for the petitioner is an order passed to club the proceedings of the Probate proceeding and the title suit and not deciding an issue that the proceedings of the title suit are required to be stayed. In that view of the matter, the said judgment is of no assistance to the learned counsel for the petitioner for the question raised in this writ petition This writ application is, accordingly, dismissed.”
9. In Ravi Khanna (supra) the ld. Single Judge of this Court has held that there is no clash between probate proceedings and a partition suit. Insofar as the Chiranjilal (supra) judgment is concerned, the Supreme Court in the said judgment has laid down the nature of probate proceedings being proceedings in rem, which proposition is not in dispute. The observations of the Supreme Court are as under:
10. The observations of the Supreme Court in Chiranjilal (supra) that the Probate Court alone has exclusive jurisdiction to grant a probate and a Civil Court would not be entitled to examine the validity of the Will is obviously in the context of a petition seeking probate of a Will. A civil court cannot examine the validity of a Will for the purpose of granting a probate of the Will, but the scope of the issues to be determined in a probate petition is limited. In a civil suit where the Will is called in issue, the Court can look at various surrounding circumstances, including allegations relating to suspicious circumstances if any, genuineness of the Will, whether there were Wills prior to or subsequent to the Will relied upon etc., - which issues may not arise in a Probate petition. The scope of proceedings in a partition suit are broader than that in a probate petition.
11. Insofar as the present petition is concerned, the question is as to whether the partition suit requires to be stayed in view of the pendency of the probate proceedings. A perusal of the partition suit, clearly, shows that the Respondent - Smt. Aparajita is praying for partition of the estate of her mother - Late Smt. Shanti Singh and the Defendant No.6 being one of the sons of the testatrix, has set up a Will. In respect of the said Will, in paragraph 9 of the suit, the following is pleaded: -
12. The allegation of the Respondent is that the Will is forged and fabricated and the Respondent has, clearly, disclosed that there is a petition for probate pending in the Civil Court at Motihari, Bihar. The partition suit was filed at the time when the probate petition stood dismissed for nonprosecution. Thereafter, the said petition was restored only in 2017. All the legal heirs have been made parties in the present suit for partition. The issues to be considered in the present suit for partition, would be broader than just examining the validity of the Will. The questions as to what would be the various properties that are to be considered of the testatrix and what would be the shares of the various parties would also have to be examined in the partition suit. However, there is no doubt that the Will would play a crucial role in the defence of Defendant No.6.
13. A probate petition, strictly speaking, cannot be considered to be a „previous suit‟ under Section 10 CPC. Ideally, a probate petition and the partition suit between the same parties ought to be heard and adjudicated together, in order to avoid multiplicity of proceedings and conflicting findings/decisions. However since the suit is pending in the District Courts, Delhi and the probate petition is pending before the Civil Judge, Motihari, Bihar, this Court is of the opinion that the probate petition having been filed 8 years ago i.e. in 2011 and the partition suit being also pending for more than 4 to 5 years, the trial in the partition suit shall continue.
14. In Binapani Kar Chowdhury (supra) the Supreme Court has resolved the issue of conflict between decision in a probate petition and a partition suit, in the following manner.
5. Therefore, where the right of either an executor or a legatee under a Will is in issue, such right can be established only where probate (where an executor has been appointed under the Will), or letters of administration (where no executor is appointed under a Will), have been granted by a competent court. Section 213 does not come in the way of a suit or action being instituted or presented by the executor or the legatee claiming under a Will. Section 213, however, bars a decree or final order being made in such suit or action which involves a claim as an executor or a legatee, in the absence of a probate or letters of administration in regard to such a Will. Where the testator had himself filed a suit (seeking a declaration and consequential reliefs), and he dies during the pendency of the suit, the executor or legatee under his Will, can come on record as the legal representative of the deceased plaintiff under Order 22 Rule 3 CPC and prosecute the suit. Section 213 does not come in the way of an executor or legatee being so substituted in place of the deceased plaintiff, even though at the stage of such substitution, probate or letters of administration have not been granted by a competent court.
6. However, there appears to be some divergence in views on the question whether a decree can be passed in the absence of probate (or letters of administration), where the suit or action has been initiated by the testator himself (and not by anyone claiming a right as the executor or legatee under a Will), and the executor/legatee subsequently comes on record as the legal representative on the death of the testator. One view is that after the death of the testator, when an executor or a legatee comes on record and proceeds with the suit, he is trying to enforce his right under a Will and, therefore, Section 213 would come into play and the probate or letters of administration will have to be obtained before the judgment is delivered (see Arijit Mullickv. Corpn. of Calcutta [(1979) 2 Cal LJ 426] ). The other view is that Section 213 will not apply as the suit was not filed to establish any right of an executor of legatee under a Will, and that as the testator himself having filed the suit, the issue in the suit is only about the right claimed by the plaintiff testator and not about the right claimed by the executor/legatee under the Will (see Gobinda Ballav Chakraborty v. Biswanath Mustafi [AIR 1980 Cal 143: (1979) 2 Cal LJ 325] ). We do not propose to examine this question in this appeal, as the respondent is unrepresented, and this appeal can be disposed of on the special facts and circumstances of this case.”
15. From the above it is clear that both the probate petition and the suit for partition can proceed. If the Trial Court decides that the partition suit is liable to be dismissed, then no further orders would be required to be passed. However, if the suit is decreed, it is directed that the said decree would come into effect after the decision of the probate petition, which is pending in Motihari, Bihar. Post the decision in the probate petition, parties are left to avail of their respective remedies in respect of decisions in both proceedings.
16. The present petition along with all pending applications are, accordingly, disposed of.
PRATHIBA M. SINGH JUDGE OCTOBER 31, 2019