Orissa High Court
Ashok Kumar Ray vs Smt.Reba Biswas And Others on 4 January, 2017
Equivalent citations: AIR 2017 ORISSA 48, (2017) 2 CURCC 114 (2017) 2 CIVILCOURTC 359, (2017) 2 CIVILCOURTC 359
Author: A.K.Rath
Bench: A.K.Rath
HIGH COURT OF ORISSA: CUTTACK
C.M.P. No.619 of 2015
In the matter of an application under Article 227 of the
Constitution of India.
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Ashok Kumar Ray ..... Petitioner
Versus
Smt.Reba Biswas and others ..... Opposite parties
For Petitioner -- Mr.Ashok Mohanty,
Sr.Advocate
For Opp. Parties -- Ms.Pratyusha Naidu,
Advocate
(For O.Ps.1,2,4 & 5)
JUDGMENT
PRESENT:
THE HON'BLE DR. JUSTICE A.K.RATH
Date of Hearing & Judgment: :04.01.2017
DR.A.K.RATH, J.The instant petition is to laciniate the orders dated 15.1.2015 and 21.3.2015 passed by the learned Civil Judge (Sr.Division), Puri in C.S.No.464 of 2008. By order dated 15.1.2015, the learned trial court vacated the order of stay whereas, by order dated 21.3.2015, it held that partition suit shall continue till the stage of carrying out of a preliminary decree.
22. The opposite parties 1 to 5 as plaintiffs instituted C.S.No.464 of 2008 for partition of the properties left by common ancestor Atul Krishna Roy in the court of the learned Civil Judge (Sr.Division), Puri impleading the petitioner as well as proforma opposite parties 6 and 7 as defendants. Pursuant to issuance of summons, defendant no.1-petitioner entered appearance and filed a written statement. During pendency of the suit, defendant no.1 filed an application under Section 276 of the Indian Succession Act before the learned District Judge, Puri for grant of Pobate of Will said to have been executed by late Atul Krishna Roy bequeathing the properties in his favour, which is registered as Test Case No.7 of 2012. Thereafter defendant no.1 filed an application to stay the further proceeding of the suit till disposal of Test Case No.7 of 2012. The plaintiffs filed objection to the same. The said application having been allowed, the plaintiffs approached this Court in W.P.(C) No.22464 of 2013. A Bench of this Court disposed of the said writ petition on 12.12.2014 directing the learned District Judge, Puri to dispose of Test Case No.7 of 2012 within a period of six months and to proceed with the suit for partition in accordance with law. On 15.1.2015, the learned trial court vacated the order of stay. On 21.3.2015, the learned trial court came to hold that fate of the suit depends on the probate case, since position of the probate case is not known. There is no reason to grant stay. It further held that the suit shall continue till the stage of carrying out of a preliminary decree.
33. Heard Mr.Ashok Mohanty, learned Sr.Advocate for the petitioner and Ms.Pratyusha Naidu, learned Advocate for the opposite parties 1, 2, 4 and 5.
4. Mr.Mohanty, learned Sr.Advocate for the petitioner submits that the properties involved in testamentary case and the suit for partition is same. The fate of the suit depends upon the Pobate of Will. In view of the same, further proceeding of the suit may be stayed till disposal of the probate proceedings.
5. Per contra, Ms.Naidu, learned Advocate for the opposite parties 1, 2, 4 and 5 submits that this Court in W.P.(C) No.22464 of 2013 directed the learned District Judge, Puri to dispose of Test Case No.7 of 2012 within a period of six months and to proceed with the suit for partition in accordance with law. In view of the same, the suit for partition may continue till passing of final decree. She relies on a decision of the apex Court in the case of Nirmala Devi Vrs. Arun Kumar Gupta and others (2005) 12 SCC 505.
6. The sole question that hinges as to whether the suit for partition shall remain stayed till disposal of the probate proceeding.
7. Before proceeding further, it is apt to refer to the decision of this Court in the case of Jagojoti Bose and another v. Baruruchi Bose and others, AIR 1970 Orisa 28. In Jagojoti Bose (supra), the disputed property belongs to one Haricharan Bose. He had three sons. On 10.10.1946, he executed a Will in respect 4 of the disputed property in favour of defendant nos.4 and 5. Thus he divested the plaintiff-another son from inheritance under the Will. On 30.10.1958, the plaintiff instituted a suit for partition claiming 1/3rd interest. Defendants 4 and 5 filed written statement claiming the entire property to themselves on the strength of the Will. On 12.9.1960, defendants 4 and 5 filed an application for Probate of Will in the court of the learned District Judge, Cuttack. On 28.6.1961, a preliminary decree for partition was passed in favour of the plaintiff. On 28.11.1962, Probate of Will was granted after contest by the plaintiff. On 10.7.1964, the plaintiff filed an application for making final the preliminary decree for partition. Defendants 4 and 5 filed an objection to the same contending, inter alia, that the plaintiff had no title in the disputed property after probate was granted. The contention was negatived by the trial court. The same was challenged before this Court. This Court held that by preliminary decree the jural relationship amongst the parties inter se was finally decided and it was declared that the plaintiff had a one third interest in the disputed property. If the Probate of Will is allowed to vary the rights, a conclusion must be reached to the effect that the plaintiff is not entitled to the property. This would affect the very basis of the preliminary decree and the rights carved out. The juristic theory underlying the reason why this cannot be done is that defendants 4 and 5 could have pressed into service the Probate if they had been vigilant in time. They had taken the defence under the Will in the written statement. Thus their claim on the strength of the Will and the Probate subsequent to the preliminary decree is barred by the principle 5 of res judicata, actual and constructive. It was open to the defendants 4 and 5 to get the partition suit stayed, proceed with the Probate proceeding pending in the court of the District Judge and, after obtaining the Probate, to set it up in defence in the partition suit. This was the only course available to them. When they failed to do so, they abandoned their right based on the Probate. By the time the Probate was granted, the rights of the parties on the basis of inheritance had already been worked out and the stage of setting up the Probate in defence had passed off. (Emphasis laid)
8. In Nirmala Devi (supra), the question arose whether the probate proceeding could be clubbed with the suit. The apex Court held that 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, the apex Court directed the learned District Judge to make it convenient to dispose of the probate proceeding as well as suit. The same view was reiterated in Balbir Singh Wasu v. Lakhbir Singh and others (2005) 12 SCC 503.
9. Reverting to the facts of the case and keeping in view the aforesaid principles, this Court finds that the suit schedule property is the subject-matter of dispute in the partition suit as well as probate proceeding. The jural relationship amongst the parties inter se is finally decided in the preliminary decree. The decision in the probate proceeding on the question of proof of 6 'Will' will have a direct impact on the suit. The decision in the partition suit would also operate as res judicata in the probate proceeding. In such contingency, when both the proceedings are pending, the suit for partition shall remain stayed till disposal of probate proceeding.
10. In the wake of aforesaid, the orders dated 15.1.2015 and 21.3.2015 passed by the learned Civil Judge (Sr.Division), Puri are quashed. This Court directs that further proceedings of C.S.No.464 of 2008 pending before learned Civil Judge (Sr.Division), Puri shall remain stayed till disposal of Test Case No.7 of 2012 pending before the learned District Judge, Puri. Learned District Judge shall conclude the hearing of Test Case No.7 of 2012 within a period of six months from today. The petition is allowed. No costs.
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Dr.A.K.Rath, J.
Orissa High Court, Cuttack.
The 4th January, 2017/CRB.