Calcutta High Court (Appellete Side)
Suresh Chandra Choudhuri vs Sakuntala Chowdhury & Ors on 20 February, 2019
Author: Bibek Chaudhuri
Bench: Bibek Chaudhuri
1
IN THE HIGH COURT AT CALCUTTA
CIVIL REVISIONAL JURISDICTION
APPELLATE SIDE
The Hon'ble JUSTICE BIBEK CHAUDHURI
CO No. 4296 of 2016
Suresh Chandra Choudhuri
-Versus-
Sakuntala Chowdhury & Ors.
For the Petitioner: Mr. Sunit Kumar Roy
For the Respondent No.9: Mr. S.Roy
Mr. A.K. Jha Heard on: February 7, 2019.
Judgment on: February 20, 2019.
BIBEK CHAUDHURI, J. : -
1. In the instant revision under Article 227 of the Constitution of India, order dated 16th August, 2016 passed by the learned Civil Judge (Senior Division), Malda is impugned at the instance of the plaintiff (hereafter referred to as petitioner) of Partition Suit No.240 of 1994.
2. The petitioner as plaintiff filed a suit for partition against the opposite parties which was registered as Partition Suit No.240 of 1994 in the Court of the learned Civil Judge (Senior Division), Malda. Preliminary decree was passed in the said suit on 14th July 2000. The judgment passed in the aforesaid partition suit and decree in preliminary form was challenged by the opposite parties by preferring an appeal being Title Appeal No.38 of 2000 which was eventually dismissed on contest on 20th January, 2013. The opposite parties preferred a second appeal in this 2 court which after admission was registered as SA No.119 of 2006. The said appeal was also dismissed by this court on 29th January, 2006 and the judgment and decree in preliminary form passed in Partition Suit No.240 of 1994 was affirmed up to the Supreme Court of India. The said suit is now pending for recording decree in final form.
3. In the mean time, the original defendant No.1 expired and her name was expunged from the array of the defendants. That on 1st October, 2015 an application under Section 10 read with Section 151 of the Code of Civil Procedure was filed on behalf of the defendants/opposite parties stating, inter alia, that the original defendant No.1 executed a will during her lifetime and bequeathed her 1/9th share in the suit property in favour of her two grand-sons, namely, Suradeb Chowdhury and Subhodeb Chowdhury and defendant No.4. The executor of the said will made an application for granting of probate of the said will executed by original defendant No.1, since deceased. The probate proceeding, being contentious, was registered as OC No.5 of 2014. The petitioner has been contesting the said probate case by filing written statement. Accordingly the opposite parties prayed for an order of stay of further proceeding of Partition Suit No.240 of 1994 till the disposal of OC No.5 of 2014.
4. The learned Trial Judge by an order dated 16th August, 2016 disposed of the said application under Section 10 read with Section 151 of the CPC granting stay of further proceeding of Partition Suit No.240 of 1994 till the disposal of OC No.05 of 2014.
5. Mr. Sunit Kr. Ray, learned Advocate for the petitioner submits that Partition Suit No.240 of 1994 has been decreed in preliminary form, thereby, declaring the shares of the plaintiffs and the defendants. In preliminary decree, share of original defendant No.1 has been declared.
After the death of Laxmimuni Chowdhury, original defendant No.1, OC No.5 of 2014 was instituted by the executor of the will allegedly executed 3 by the said defendant No.1 during her lifetime bequeathing her share in favour of her two grand-sons and defendant No.4.
6. It is submitted by Mr. Ray that if the probate is granted, the share of defendant No.1 will devolve upon the legatees. For this reason a partition suit, where preliminary decree has also been passed and the same is pending for recording final decree, cannot be stayed. According to him, the learned Trial Judge completely misconstrued the provision of Section 10 of the CPC. Prevention of multiplicity of proceedings cannot be a ground for staying further proceeding of a previously instituted suit. In support of his contention, learned counsel for the petitioner has referred to a decision of this court in the case of Jayanta Kumar Mondal and others vs. Brojo Gopal Dalal and another reported in (2007) 4 CHN
101. In the aforesaid case, a coordinate bench of this Court relaying on a decision reported in (2005) 2 WBLR (Cal) 713 (Ashoke Himmatsinghaka vs. Rajendra Kumar Himmatsinghka & Ors.) held that stay of the partition suit on the ground of pendency of probate proceeding is not justified. He also refers to a decision of this Court in the case of Chand Madhob Mondal vs. Brojo Krishna reported in AIR 1985 Cal 154 wherein it is held that in order to attract Section 10 of the CPC, the subject matter in issue in the subsequent suit must be directly and substantially in issue in the previous suit and that merely because one of the questions in issue is the same as in the other suit, would not make the subject matter identical. In probate proceeding, the court is under obligation to adjudicate the execution of a will left by a testator. Such issue is not remotely identical with the issue involved in the partition suit. Therefore, the impugned order is liable to be set aside.
7. Mr. S. Roy, learned Advocate for the opposite parties, on the other hand, submits that if the probate proceeding being OC No.5 of 2014 is allowed and probate is granted in respect of the will of defendant No.1, since deceased, allocation of shares of the opposite parties will be altered 4 and preliminary decree passed in Partition SuitNo.240 of 1994 declaring the respective share of the parties will automatically be altered. When the probate proceeding is pending, further proceeding in Partition Suit No.240 of 1994 should be stayed. The learned Trial Judge did not commit any illegality in passing the order impugned.
8. It is further submitted by the learned Advocate for the opposite parties that where the requirements of Section 10 of the CPC are not satisfied, recourse to Section 151 of the CPC is permissible for staying a suit or for injuncting a plaintiff from proceeding with the case, provided the court is satisfied that such a recourse is necessary for the ends of justice or to prevent abuse of the process of the court, and it is not violative of any express and specific provision of the CPC or any other law applicable to the case to be stayed or injuncted. In support of his argument Mr. Roy refers to a decision of the Division Bench of Gowahati High Court in the case of Subho Ram Kalita (deceased by LRs) and others vs. Dharmeswar Das Koch and others reported in AIR 1987 Guwahati 73.
9. Factual matrix of the instant case is not in dispute.
10. Point for determination in the instant revision is as to whether a previously instituted partition suit can be stayed during the pendency of a probate proceeding between the parties till its disposal.
11. The facts of the case reported in 1970 Orissa 28 (Jagojoti Bose and another vs. Bararuchi Bose and others) is that the disputed property admittedly belonged to the father of the plaintiff, defendant No.4 and defendant No.5. During his lifetime, the father of the parties executed a will in respect of the disputed property in favour of defendant No.4 and defendant No.5 divesting the plaintiff from inheritance under the will. The plaintiff filed a suit for partition of his 1/3rd share in the disputed property in the year 1958. In the said suit the defendants filed a written 5 statement claiming the entire property to themselves on the strength of the will. Subsequently, they filed an application for probate of the will in the year 1961. In the mean time preliminary decree for partition was passed in favour of the plaintiff in the said partition suit. Subsequently, in 1962 probate of the will was granted. When the partition suit was pending for recording final decree, the defendants filed an objection that the defendants have no title in the disputed property after probate was granted and the plaintiff's application for making the decree final should be rejected. The Guwahati High Court decided the issue in the following words:-
"The position here is completely otherwise. By the 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 the 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. In fact, they had taken the defence under the will in the written statement. So, their claim on the strength of the will and the Probate subsequent to the preliminary decree is barred by the principle of res judicata, actual and constructive. It was open to 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. That was the only course available to them. When they failed to do so, they abandoned their right based on the Probate. The fact that the plaintiff contested the Probate proceeding and that in his presence Probate was granted, is wholly immaterial for the simple reason that by the time 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."
12. Almost a similar question as to whether a partition suit wherein preliminary decree has been passed and the suit awaits for final decree should be stayed till the disposal of the probate proceeding, came up for consideration before the Hon'ble Division Bench of this Court in Joy 6 Chowdhury vs. Kumkum Ray and Others reported in (2016) 1 CHN (Cal) 302. The Division Bench of this Court held as hereunder:-
"Since the extent of share of the parties depends upon the ultimate fate of the probate proceeding and the said title suit, we feel the learned trial Judge ought not to have passed any preliminary decree declaring the shares of the parties in the suit property. To be more precise, we like to mention here that in the event, will is probated and the son, namely, Joy Chowdhury inherits his mother's property, by way of testamentary succession, then the extent of his interest in the suit property will be enlarged. Simultaneously, if the suit being Title Suit No.97 of 2011 is ultimately dismissed and it is found that his two sisters, who bequeathed their interest in the suit property in favour of their brother, namely, Joy Chowdhury, then again, the interest of the brother, namely, Joy Chowdhury will be further enlarged. On the contrary, if the probate proceeding fails, then the brother, Joy Chowdhury, cannot inherit the share of his mother, Leela, by way of testamentary succession. Identically, if the Title Suit No.97 of 2011 is allowed and decree is passed in favour of the three sisters declaring the Deed of Gift is invalid, then Joy Chowdhury cannot acquire any interest of the donors by virtue of the said Deed of Gift. In such circumstances, the share of Joy Chowdhury will be reduced and/or altered.
Considering the facts and circumstances as mentioned above, we are of the view that the learned trial Judge should not have passed the preliminary decree in the said suit till the disposal of the said proceedings. As such, we set aside the preliminary decree passed by the learned trial Judge and send the suit back to the learned Trial Judge on remand for fresh trial of the said suit.
We, however, feel that for avoiding conflict of decision and for convenient trial of the said partition suit, all the aforesaid three suits being Title Suit No.54 of 2008, another declaratory suit being Title Suit No.97 of 2011 and the probate proceeding being Misc. (Probate) Case No.123 of 2010, renumbered as OS 4 of 2011 should be tried simultaneously by a common court. However, in the present set up, trial of the aforesaid three suits cannot be conducted by one particular court as the aforesaid two suits and the suit arising out of the probate proceeding are pending for consideration before three different courts. Under such circumstances, we feel that justice will be subserved if the partition suit being Title Suit No.54 of 2008, which is now pending for consideration before the learned Civil Judge, Senior Division, First Court at Bolpur and the declaratory 7 suit being Title Suit No.97 of 2011 pending before the Civil Judge, Junior Division, First Court at Bolpur are transferred to the Court of the learned Additional District Judge at Suri, where the probate suit being OS No.4 of 2011 is now pending for consideration so that all these three suits are tried by the said court simultaneously.
Accordingly, we dispose of this appeal by setting aside the impugned preliminary decree passed by the learned trial Judge in Title Suit No.54 of 2008 and send the suit back to the learned trial Judge on remand for fresh trial of the suit in the light of the observation made hereinabove and request the learned District Judge, Birbhum at Suri to transfer the said partition suit being Title Suit No.54 of 2008 and the declaratory suit being Title Suit No.97 of 2011 to the Court of learned Additional District Judge, Second Court at Suri so that all the aforesaid three suits can be tried simultaneously and be disposed of by a common court.
It is made clear that the learned transferee court, while considering the aforesaid two suits, will permit the parties thereto to lead further evidence in case they choose to give further evidence in the said suits. Needless to mention here if any of the parties give further evidence in the said suit, the adversary will get an opportunity for cross-examining the said witness."
13. In the instant case, however, the opposite parties challenged the preliminary decree by filing appeals and the said preliminary decree passed in Partition Suit No.240 of 1994 is upheld upto the Supreme Court. By virtue of the said preliminary decree, shares of the parties have been declared. At the risk of repetition, it is mentioned that Partition Suit No.240 of 1994 is pending for recording final decree by effecting partition as per the shares of the parties declared in the preliminary decree by metes and bounds. It is at this stage, the defendant/opposite party No.1 came up with an application under Section 10 read with Section 151 of the CPC praying for stay of further proceeding of the partition suit till the disposal of the Probate Case being OC 05of 2014.
14. Preliminary decree was passed declaring the shares of the parties on the basis of law of inheritance. After preliminary decree in the said partition suit was passed, original defendant No.1 died. Her name was 8 expunged from the cause title of the partition suit. After a lapse of about 14 years from the date of the decree being passed in preliminary form, probate proceeding being OC 5 of 2014 was instituted.
15. In the case of Venkata Reddy vs. Petty Reddy reported in AIR 1963 SC 992, the Supreme Court laid down the following propositions:-
"A preliminary decree passed, whether it is in a mortgage suit or partition suit, is not a tentative decree but must in so far as the matters dealt with by it are concerned, be regarded as conclusive. No doubt, in suits which contemplate the making of two decrees, a preliminary decree and a final decree, the decree which will be executable would be the final decree. But the finality of a decree or a decision does not necessarily depend upon its being executable. The Legislature in its wisdom has thought that suits of certain types should be decided in stages and though the suit in such cases can be regarded as fully and completely decided only after a final decree is made, the decision of the Court arrived at, at the earlier stage, also has a finality attached to it."
16. In the event, will left by original defendant No.1, since deceased is probated and her share devolves upon her two grand-sons and defendant No.4, by way of testamentary succession, then the extent of the share of the parties may be altered. But such alteration will of course not be more than 1/9th share of original defendant No.1, Laxmimuni Chowdhury, since deceased. The share of the plaintiff and the defendants, other than defendant No.4 would be the same. In the event, probate is granted, share of original defendant No.1 will devolve upon the legatees. In other words, final decision of the probate proceeding will not materially affect the partition suit.
17. For the reasons recorded above, I am of the considered view that learned Trial Judge while staying further proceeding of Partition Suit No.240 of 1994 failed to consider that the issues in the partition suit and the probate proceedings are not substantially and materially identical. Secondly, preliminary decree of the partition suit declaring the shares of 9 the parties have been passed long ago and the said decree was upheld up to the Apex Court. Thirdly, in the event probate proceeding is allowed, ownership of defendant No.1's share will devolve upon the legatees for which the process of recording final decree in the partition suit cannot be stayed.
18. In view of what has been stated above the impugned order is liable to be set aside.
19. Thus, the instant revision is allowed on contest, however, without cost.
Urgent photostat certified copy of this order, if applied for, be given to the parties as expeditiously as possible.
(Bibek Chaudhuri, J.)