Allahabad High Court
In The Matter Of Goods Of Late Rai Bharat ... vs Vishnu Gupta on 14 March, 2018
Author: Ashwani Kumar Mishra
Bench: Ashwani Kumar Mishra
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 16 Case :- TESTAMENTARY CASES No. - 32 of 2014 Petitioner :- In The Matter Of Goods Of Late Rai Bharat Kumar Counsel for Petitioner :- Pratik J. Nagar,Pankaj Sinha Counsel for Respondent :- Vishnu Gupta,P.N. Srivastava,Sudeep Harkauli,Suresh Srivastava Hon'ble Ashwani Kumar Mishra,J.
1. Proceedings under the Indian Succession Act, 1925 read with Chapter XXX Rule 6 of the Rules of the Court have been initiated by the plaintiff for grant of letters of administration in respect of estate of deceased Rai Bharat Kumar, which he possessed at the time of his death, alongwith copy of a will dated 13.11.1998 annexed thereto. As per the averments in the plaint, the deceased has left behind two sons namely Rai Sharwan Kumar (plaintiff petitioner) and Rai Siddhartha Kumar, as well as 05 daughters namely Smt. Sudha Jain, Smt. Seema Bakshi, Smt. Sadhna Agarwal, Smt. Sarita Agarwal and Smt. Subhasini Mohan alias Smt. Subha Mohan, as per their description given in para 4 of the plaint. It is stated that as per the will, 05 daughters were entitled to a sum of Rs.51,000/- each, which have been paid to them by demand draft and accepted by them without protest.
2. Smt. Sudha Jain, the eldest daughter of deceased, has instituted Original Suit No.667 of 2013 (Smt. Sudha Jain Vs. Rai Sharwan Kumar and others), seeking partition of her 1/7th share in the properties of the deceased. According to plaintiff, necessity has arisen for filing the present petition, inasmuch as the will is now being disputed by one of the sisters. The plaintiff has set forth in Annexure-1 to the petition the affidavit of valuation enumerating all properties and credits, which the deceased possessed or was entitled to at the time of his death and which have or are likely to come to the hands of the petitioner.
3. Copy of the will dated 13.11.1998 is annexed. Affidavit of one of the attesting witnesses to the will i.e. Laxmi Chandra Agarwal son of late Mahabir Prasad Agrawal has also been filed certifying that the will was executed by the deceased in the presence of witness, and that the deceased was having a sound mind and memory at the time of execution of will.
4. A written statement has been filed by defendant no.7 objecting to the grant of letters of administration with the will attached. It is denied that alleged will bears signature of deceased, and that the valuation of property is also incorrectly mentioned. It is stated that filing of an Original Suit No.1147 of 2007 by Smt. Sadhna Agrawal is suppressed. It is also contended in para 19 that share of deceased was only 1/8th in the ancestral property but the schedule of property contains description of the entire property. It is contended that share of deceased in the ancestral property is yet to be determined in Original Suit No.667 of 2013, and therefore, letters of administration in respect of entire ancestral property situated in Varanasi cannot be issued.
5. While entertaining this petition and issuing notices, the proceedings of Original Suit No.667 of 2013 pending before the court of Civil Judge (Sr. Division), Varanasi has been stayed, relying upon the decision of the Apex Court in Chiranjilal Shrilal Goenka (deceased) through Lrs. Vs. Jasjit Singh and others, reported in (1993) 2 SCC 507. The order passed on 20.11.2014 upon an application filed by the plaintiff petitioner under Section 10 of the Code of Civil Procedure reads as under:-
"(On Civil Misc. Application under Section 10 of the C.P.C.) Sri J.N. Nagar, learned Senior Advocate, assisted by Sri Pratik J. Nagar, submits that the civil court will have no jurisdiction on the original side to go into the question for validity of the Will. In support of his submission, Sri Nagar has placed reliance upon Chiranjilal Shrilal Goenka Versus Jasjit Singh and others, (1993) 2 SCC 507.
Submission requires consideration.
Till the next date of listing, further proceedings in Original Suit No. 667 of 2013, Smt. Sudha Jain Versus Rai Sharwan Kumar alias Mantoo and others, pending before the court of Civil Judge (Senior Division) Varanasi, shall remain stayed."
6. An objection has been taken by the respondents to extension of interim order, on the ground that proceedings of earlier instituted suit i.e. Original Suit No.667 of 2013 ought not to be stayed, particularly as question of legality of will is also disputed. The objection is countered by the counsel for the plaintiff petitioner, contending that proceedings of earlier instituted suit has rightly been stayed, and that source of power otherwise follows from Section 151 of the Code of Civil Procedure, and mere moving of application under Section 10 of the Code would not be determinative. On the aspect of extension of interim order, arguments were heard and matter was reserved for delivery of orders. It was at this stage that submissions were advanced by Sri J. Nagar on the aspect of consolidation of proceedings with a view to avoid multiplicity of litigation. Accordingly, the hearing was adjourned and parties were heard on 7th March, 2018 on the aspect relating to consolidation of proceedings also.
7. Before proceeding further, it would be appropriate to notice the judgment of the Apex Court in Chiranjilal Shrilal Goenka (deceased) through Lrs. Vs. Jasjit Singh and others, reported in (1993) 2 SCC 507. The jurisdiction of probate court in terms of provisions of Succession Act have been noticed. Para 16 of the report reads as under:-
"16. The grant of a Probate by Court of competent jurisdiction is in the nature of a proceeding in rem. So long as the order remains in force it is conclusive as to the due execution and validity of the will unless it is duly revoked as per law. It binds not only upon all the parties made before the court but also upon all other persons in all proceedings arising out of the Will or claims under or connected therewith. The decision of the Probate Court, therefore, is the judgment in rem. The probate granted by the competent court is conclusive of the validity of the Will until it is revoked and no evidence can be admitted to impeach it except in a proceeding taken for revoking the probate. In Sheoparsan Singh v. Ramnandan Prasad Singh, (1916) ILR 43 Cal., 694 PC the judicial committee was to consider, whether the Will which had been affirmed by a Court of competent jurisdiction, would not be impugned in a court exercising original jurisdiction (Civil Court) in suit to declare the grant of probate illegal etc. The privy council held that the Civil Court has no jurisdiction to impugne the grant of probate by the court of competent jurisdiction. In that case the subordinate court of Muzafarbad was held to be had no jurisdiction to question the validity of the probate granted by the Calcutta High Court. In Narbheram Jivram v. Jevallabh Harjivan, AIR 1933 Bombay, 469 probate was granted by the High Court exercising probate jurisdiction. A civil suit on the Original Side was filed seeking apart from questioning the probate, also other reliefs. The High Court held that when a probate was granted., it operates upon the whole estate and establishes the Will from the death of the testator. Probate is conclusive evidence not only of the factum, but also of the validity of the Will and after the probate has been granted, in is incumbent on a person who wants to have the Will declared null and void, to have the probate revoked before proceeding further. That could be done only before the Probate Court and not on the original side of the High Court. When a request was made to transfer the suit to the Probate Court, the learned Judge declined to grant the relief and stayed the proceeding on the original side. Thus it is conclusive that the court of probate alone had jurisdiction and is competent to grant probate to the will annexed to the petition in the manner prescribed under the Succession Act. That court alone is competent to deal with the probate proceedings and to grant or refuse probate of the annexed will. It should keep the original will in its custody. The probate thus granted is conclusive unless it is revoked. It is a judgment in rem."
It is, therefore, settled that the court of probate alone has jurisdiction and is competent to grant probate to the will annexed to the petition in the manner prescribed under the Succession Act, and that such a declaration by the probate court binds not only the defendants but everyone else.
8. A Division Bench of this Court in State of U.P. through District Collector (Stamps), Allahabad Vs. Dr. Ashok Tahiliani and others, reported in 2017 (124) ALR 671, has observed that proceedings initiated under a testamentary suit is confined to genuineness of will and nothing beyond it. Relying upon a judgment of the Apex Court in Krishna Kumar Birla Vs. Rajendra Singh Lodha, reported in (2008) 4 SCC 300, the Division Bench observed that while genuineness of will is required to be examined by the probate court, a question of title arising under the Act cannot be gone into such proceedings. Construction of a will relating to right, title and interest of any other person is beyond the domain of probate court. Paras 10 to 15 of the Division Bench is reproduced hereinafter:-
"10. We may only record that the proceedings initiated under a testamentary suit are confined to the genuineness of the will and nothing beyond it.
11. In several judgments it has been held by the Supreme Court that the jurisdiction of the Testamentary Court is only to determine as to whether the testator has executed an instrument of his own free will. The jurisdiction of the probate Court does not deal with the property of the deceased. Since only the will and not the property is the subject matter of the proceedings before the probate Court, the jurisdiction with respect to enabling the administration of the estate would either be by upholding the will and granting probate or by declining to do so and thereby facilitating the administration of the estate.
12. In a proceeding for the grant of probate or for the grant of Letters of Administration with a will annexed, the Court exercising testamentary jurisdiction is not concerned with title to property. In determining whether probate should be granted, the Court determines only upon the genuineness and due execution of the will. Determinations on issues of title are alien to probate proceedings. In Ishwardeo Narain Singh vs. Kamta Devi, reported in AIR 1954 SC 280, the Supreme Court formulated the principle of law in the following terms "The Court of Probate is only concerned with the question as to whether the document put forward as the last will and testament of a deceased person was duly executed and attested in accordance with law and whether at the time of such execution the testator had sound disposing mind. The question whether a particular bequest is good or bad is not within the purview of the Probate Court."
13. This principle was reiterated in Chiranjilal Shrilal Goenka (deceased through LRs) vs. Jasjit Singh, reported in (1993) 2 SCC 507, in the following observations:
"The Succession Act is a self-contained code insofar as the question of making an application for probate, grant or refusal of probate or an appeal carried against the decision of the probate court. This is clearly manifested in the fascicule of the provisions of the Act. The probate proceedings shall be conducted by the probate court in the manner prescribed in the Act and in no other ways.
The grant of probate with a copy of the will annexed establishes conclusively as to the appointment of the executor and the valid execution of the will. Thus it does no more than establish the factum of the will and the legal character of the executor. Probate court does not decide any question of title or of the existence of the property itself."
14. In Delhi Development Authority vs. Mrs.Vijaya C. Gurshaney, reported in (2003) 7 SCC 3015, the Supreme Court again emphasized the following principle:
"A Testamentary Court is only concerned with finding out whether or not the testator executed the testamentary instrument of his free will. It is settled law that the grant of a Probate or Letters of Administration does not confer title to property. They merely enable administration of the estate of the deceased."
15. In Krishna Kumar Birla v. Rajendra Singh Lodha, reported in (2008) 4 SCC 300, the Supreme Court once again reiterated that:
"The jurisdiction of the Probate Court is limited being confined only to consider the genuineness of the will. A question of title arising under the Act cannot be gone into the (sic probate) proceedings. Construction of a will relating to the right, title and interest of any other person is beyond the domain of the Probate Court.""
9. Recently also, in Saroj Agarwalla (Dead) through L.R. Vs. Yasheel Jain, reported in 2017(120) ALR 755, the Hon'ble Supreme Court has been pleased to reiterate the law on subject to hold that the question whether a particular bequest is good or bad is not within the purview of the probate court. Relying upon a previous decision of the Apex Court in Ishwardeo Narain Singh Vs. Kamta Devi, reported in AIR 1954 SC 280, following observations have been made by the Apex Court in para 10 in Saroj Agarwalla (supra):-
"10. A query arises as to why the Division Bench has recorded its views as "prima facie". The answer has been provided by learned counsel for the respondents by placing reliance upon paragraph 2 of the judgment of this Court in the case of Ishwardeo Narain Singh v. Kamta Devi[2]. This Court pointed out that "the Court of Probate is only concerned with the question as to whether the document put forward as the last will and testament of a deceased person was duly executed and attested in accordance with law and whether at the time of such execution the testator had sound disposing mind. The question whether a particular bequest is good or bad is not within the purview of the Probate Court.""
10. The plaintiff petitioner has annexed the plaint of Original Suit No.667 of 2013, as also the written statement filed by him in said suit. Paras 14 to 18 of the written statement reads as under:-
"14. That actually property bearing House No. C 23/88 A, Nati Imli Kabir Road Varanasi was ownership of Rai Krishna Kumar s/o Rai Krishna Sharan, Smt. Annapurna Devi w/o Rai Krishna Kumar, Rai Bhanu Kumar and Rai Alok Kumar sons of Rai Krishna Kumar, Rai Bharat Kumar s/o Rai Krishna Saran, Smt. Omi Devi w/o Rai Bharat Kumar, Rai Sharwan Kumar and Rai Siddharth Kumar sons of Rai Bharat Kumar and Smt. Brijmani Devi d/o Rai Krishna Saran, Brij Raj Krishna Agrawal and Amar Krishna Agrawal and Anand Krishna Agrawal sons of Batey Krishna Agrawal.
15. That of the aforesaid owners Rai Krishna Kumar and others filed Suit No.101 of 1982 in the Court of Civil Judge, Varanasi for partition of said property. Later on parties entered into a compromise and partitioned the said property. The Hon'ble Ist Additional Civil Judge Varanasi accepted the said compromise and decided the said suit in terms of the compromise on 06/05/1982.
16. That as per the said decree Rai Bharat Kumar s/o Rai Krishna Saran, Smt. Omi Devi w/o Rai Bharat Kumar, Rai Sharwan Kumar and Rai Siddharth Kumar sons of Rai Bharat Kumar got an area of 48844 Sq. Ft. of House No. C 23/88 A Mohalla Nai Basti, Nati Imli, Varanasi. They became joint owners of the said property having equal share that is 1/4th share each. On the basis of said decree they got their names mutated in government records as absolute owners of above property which they got in terms of compromise decree. Since then they came in actual and excessive occupation and lawful possession over their entire property, exercising every right of ownership Municipal authority allotted House No. C 23/88 1 Ka over the property which they got in their share.
17. That being owner of suit property of Schedule 'A' Late Rai Bharat Kumar and Smt. Omi Devi alongwith defendant no.1 and 2 jointly sold approximately 17,000 Sq. Feet of said property to three persons by way of three separate sale deeds. Further, for better and beneficial use of said property an area of 5400 Sq. Ft. was carved out to be used as passage.
18. That later on, Rai Bharat Kumar executed a Will in favour of his sons Rai Sharwan Kumar and Rai Siddharth Kumar and bequeathed his entire share in their favour and Rai Bharat Kumar passed away on 23/12/98."
11. Though letters of administration in this petition has been claimed with respect to House No. C-23/88-1(Ka) alongwith appurtenant land, but as per their own averment contained in written statement filed in Original Suit No.667 of 2013, the plaintiff petitioner has admitted share of deceased to be 1/4th. Respective rights of the parties over the house situated at Varanasi as well as share of the deceased, in respect of which he could execute a will are seriously disputed. The question of legality of will or right of deceased over the property in respect of which letter of administration is claimed cannot be adjudicated by the probate court. Such issues can be gone into by a court having original civil jurisdiction. Under the rules of the Court, this Court does not exercise any such jurisdiction.
12. In the facts and circumstances, noticed above, I am of the opinion that proceedings pending in the previously instituted Original Suit No.667 of 2013 ought not to be stayed, particularly as questions beyond the scope of present proceedings require adjudication therein. This is besides the point that in application under Section 10 of the Code of Civil Procedure, a suit instituted prior in point of time cannot be stayed and what can be stayed is the subsequent suit. It is otherwise settled that jurisdiction under Section 151 is not required to be invoked in a manner, which is inconsistent with the specific provisions contained in the Code. The legislature has only conferred jurisdiction to stay the proceedings of a subsequently instituted suit under Section 10 and it would not ordinarily be appropriate to stay the proceedings of a previously instituted suit, particularly when the scope of two proceedings are otherwise distinct.
13. Sri J. Nagar has relied upon an order passed by this Court on 11.7.2006 in Testamentary Suit No.14 of 2005 (Smt. Indraji Devi Vs. Anand Kumar Singh), in order to contend that proceedings of a previously instituted suit can be stayed. In Smt. Indraji Devi (supra), probate petition is filed before this Court by the widow of the deceased claiming letters of administration on the ground that her husband Shiv Shanker Singh died intestate and being the widow, she is entitled to administer his estate. Original Suit No.762 of 2000 was filed by one Anand Kumar Singh claiming to be adopted son of Shiv Shanker Singh. He had also claimed right on the basis of will dated 7.6.1991. A counter claim had been filed by Smt. Indraji Devi stating that Anand Kumar Singh is not the adopted son and that will is forged. It was in this context that this Court observed that validity of will can only be decided by testamentary court. In the facts of the case, it was observed that since right of the parties were to be determined essentially on the basis of acceptance or otherwise of will, the probate petition pending before this Court be decided first, and an observation was made that application would be filed before the trial court for return of plaint to be filed before this Court. The legality of will was not the subject matter in issue. Rights of the testator over the property was also not questioned. The judgment in Smt. Indraji Devi is, therefore, clearly distinguishable on facts of the present case. The previously instituted suit of 2000 pending in the court of Civil Judge, Varanasi since involved determination as to whether will is forged and fabricated, therefore, a direction was issued to return the plaint for presentation before this Court. The plaintiff cannot adopt any benefit from the judgment in Smt. Indraji Devi (supra), which clearly is distinguishable on facts.
14. However, in order to avoid multiplicity of proceedings and to avoid further complications arising in the just adjudication of dispute, the present proceedings ought to be consolidated alongwith Original Suit No.667 of 2013. By way of an State Amendment, Order IV-A has been added in the Code, vide U.P. Act No.57 of 1976, which reads as under:-
"ORDER IVA CONSOLIDATION OF CASES
1. Consolidation of suits and proceedings.- When two or more suits or proceedings are pending in the same Court, and the Court is of opinion that it is expedient in the interest of justice, it may by order direct their joint trial, where upon all such suits and proceedings may be decided upon the evidence in all or any of such suits or proceedings."
15. In Balbir Singh Wasu Vs. Lakhbir Singh and others, reported in (2005) 12 SCC 503, a Division Bench of the Apex Court in similar circumstances issued following directions in para 6:-
"6. However, having regard to the fact that in this case a large number of issues would overlap, we are of the view that both the probate proceedings and the civil suit should be clubbed and heard together by the District Judge who would be competent to hear and dispose of both the civil suit as well as the probate proceedings. We are supported in the view that we have taken by the order passed by a Bench of three Hon'ble Judges of this Court in Nirmala Devi v. Arun Kumar Gupta [(2000) 2 All I HLR 436 : (2005) 12 SCC 505] . Accordingly, the appeals are disposed of by transferring the appellant's civil suit to the District Judge, Chandigarh. Similarly Probate Proceedings No. 2 of 1999 filed by the respondents pending before the High Court is transferred to the District Judge, Chandigarh for the purpose of being disposed of together with the civil suit. The interim order, if any, already passed in either of the proceedings will continue unless vacated/modified or altered by the District Judge. No costs."
Similar direction was issued in Nirmala Devi Vs. Arun Kumar Gupta and others, reported in (2005) 12 SCC 505. Para 4 of the report is reproduced:-
"4. It has been brought to our notice that settlement is not possible at this stage. Therefore, now remains the question whether the probate proceedings could be clubbed with the suit. Learned counsel for Respondent 1 submitted that the civil suit is of the year 1987 and that despite various orders of the High Court, it has remained pending and the probate proceedings are initiated by the appellant in 1997 regarding the Will of 1984. Be that as it may, the decision in the probate proceedings on the question of proof of the Will will have a direct impact on the suit. Only on this short ground and without expressing any opinion on the merits of the controversy between the parties, we request the learned District Judge, Gopalganj to make it convenient to dispose of the probate proceedings being Probate Case No. 11 of 1997 along with civil suit being TS No. 27 of 1987 filed by Respondent 1 at his earliest convenience and preferably within a period of six months from the date of receipt of a copy of this order at its end. The aforesaid TS No. 27 of 1987 pending in the court of the eight Sub-Judge, Gopalganj shall therefore, stand transferred to the Court of District Judge, Gopalganj and be clubbed with Probate Case No. 11 of 1997 which is pending in the Court of District Judge, Gopalganj for being tried together. The appeal is accordingly disposed of. No costs."
16. In the facts and circumstances of the present case, I am of the opinion that this is a fit case where proceedings of instant case be consolidated and transferred to a court having jurisdiction to try original civil disputes also by invoking jurisdiction under section 24 of the Code of Civil Procedure. As the court of District Judge has the jurisdiction to adjudicate civil dispute on the original side and is also a court having jurisdiction to grant probate in terms of Section 264 of the Indian Succession Act, 1925, it is directed that records of present case be remitted to the court of District Judge, Varanasi, whereupon the two proceedings i.e. the present probate petition as well as Original Suit No.667 of 2013 shall be tried together by the competent court.
17. Registry is, therefore, directed to transmit the records of present proceedings to the court of District Judge, Varanasi, for its adjudication alongwith Original Suit No.667 of 2013, in the manner indicated above and in accordance with law.
18. Interim order dated 20.11.2014, passed in the present case, stands discharged.
Order Date :- 14.3.2018 Anil