Madhya Pradesh High Court
Ramdutta Sharma vs Krishna Dutta Sharma on 9 October, 1986
Equivalent citations: AIR1987MP192, AIR 1987 MADHYA PRADESH 192, (1987) JAB LJ 198 (1987) MPLJ 116, (1987) MPLJ 116
ORDER R.C. Shrivastava, J.
1. Smt. Bhagwati Devi widow of Kamal Prasad Sharma died on 18-12-1982 leaving two sons-Krishna Dutta Sharma (respondent) and Bhoj Dutta (father of the petitioner). The respondent sued the petitioner and his father Bhoj Dutta for declaration of title to certain immovable property on the ground that he had inherited the same from his father. The petitioner resisted the claim and claimed title to the property under a will alleged to have been executed in his favour by Smt. Bhagwati Devi. He filed an application in the same Court for grant of probate of the will under Section 276 of the Succession Act. In the probate proceedings, the respondent filed an application for stay under Section 10 of the Civil P.C. or consolidating the probate case with the civil suit under Section 151 of the same Code. Vide order dt. 12-2-1986, the Court consolidated the suit and the probate proceedings. Being aggrieved thereby, the petitioner has preferred this revision petition.
2. The contention of the learned counsel for the petitioner is that Section 10 ibid does not apply for the reason that the probate proceedings do not constitute a suit. In support of his contention that the proceedings do not constitute a suit, he has placed reliance on a decision of Orissa High Court in the case of Mst. Fuinbasi Maihiani v. Shiba Bhue, AIR 1967 Orissa 41. There is no dispute with that proposition with regard to the contention that Section 10 applies only to suits, the learned Counsel has placed reliance on a decision of Andhra Pradesh High Court in the case of Mantu Subbaramayya v. Batchu Narasimha Swamy, AIR 1972 Andh Pra 186 the following observations made wherein are noteworthy.
"On a plain reading of the section, it is manifest that Section 10 is attracted only when the previously instituted proceedings and the subsequently instituted proceedings are suits. If one is suit and the other not, Section 10, Civil P.C. is not attracted."
There is no dispute with regard to this proposition as well. The consolidation of the probate proceedings and the civil suit appear to have been ordered by the lower Court in exercise of its inherent powers under Section 151 of the Code. The learned Counsel for the petitioner has, in that connection argued that the discretion exercised by the lower Court in the matter is erroneous for the reason that, in view of Section 213 of the Succession Act, the petitioner cannot establish his right or title as a legatee without obtaining probate of the Will under which the right is claimed by him. In that connection, he has referred to a decision of Full Bench of Madras High Court in the case of Ganshamdass v. Gulab Bi Bai, AIR 1927 Mad 1054.
In that case, the following question was referred to the Full Bench.
"Can a defendant resisting a claim made by the plaintiff as heir-at-law rely in defence on a Will executed in his favour at Madras in respect of property situate in Madras when the will is not probated and no letters of administration with the Will annexed have been granted.(?)"
The answer was that -
"A defendant can rely on an unprobated will, provided that he does not do so in order to establish a right under the will."
Therefore, it follows that a defendant cannot establish his right as an executor or legatee in any Court unless a Court of competent jurisdiction has granted probate of the will under which the right is claimed or has granted letters of administration with the Will or with a copy of an authenticated copy of the Will annexed. Their Lordships referred to Section 187 of the Succession Act of 1865 which was reproduced as Section 213 in Succession Act of 1925- That decision of the Full Bench of Madras High Court was affirmed by their Lordships of the Supreme Court in the case of Mrs. Hem Nolini Judah v. Mrs. Isolyne Sarojbashini Bose, AIR. 1962 SC 1471. Referring to Section 213(1) of the Succession Act of 1925, their Lordships concluded as follows :
"This section clearly creates a bar to the establishment of any right under will by an executor or a legatee unless probate or letters of administration of the will have been obtained. It is now well-settled that it is immaterial whether the right under the Will is claimed as a plaintiff or as a defendant : in either case Section 213 will be a bar to any right being claimed by a person under a will whether as a plaintiff or as a defendant unless probate or letters of administration of the will have been obtained."
3. Thus, it is not possible for the petitioner to establish his alleged title to the property in question without complying with the requirements of Section 213(1) of the Succession Act. That being so, it is injudicious exercise of jurisdiction to order the probate proceedings to be consolidated with the suit. The impugned order is, thus, bad in law and cannot be sustained. By ordering the consolidation, the lower Court has fallen into an illegality in the exercise of jurisdiction. The impugned order, if allowed to stand, would occasion a failure of justice and cause irreparable injury to the petitioner.
4. In the result, therefore, the revision petition is allowed and the impugned order is set aside. In the circumstances, the parties are left to bear their own costs as incurred.