Madhya Pradesh High Court
Shri Maansingh vs Shri Kamal Singh on 19 March, 2020
Author: Vandana Kasrekar
Bench: Vandana Kasrekar
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(C.R. No.865/2019)
HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE
S. B.: Hon'ble Ms. Justice Vandana Kasrekar
Civil Revision No.865/2019
Maansingh & Others
Vs.
Kamal Singh & Another
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Shri A.S. Garg, learned Senior Counsel with Ms. Poorva
Mahajan, learned counsel for the applicants.
Shri O.P. Solanki, learned counsel for the non-applicant
No.1.
Shri Gaurav Rawat, learned counsel for the non-applicant
No.2.
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ORDER
(Passed on 19/03/2020) The applicants have filed the said revision challenging the order dated 9/11/2019(Annexure A/1), passed by the learned IInd Additional District Judge, Bagli, District - Dewas in Succession MJC No.06/2018 whereby, application preferred by the applicants under Order 7 Rule 11 of CPC was rejected.
2. The facts in brief is that, the non-applicant No.1 filed an application under Schedule 4 Section 276 of the Indian Succession Act for seeking probate of the properties mentioned in the application.
3. The applicants, thereafter, filed an application under Order 7 Rule 11 of CPC contending that the said application is based on a Will and on the basis of the said Will, a probate cannot be 2 (C.R. No.865/2019) granted. In the said application, it was also contended that earlier a suit was filed between the same parties for the same piece of land which was registered as Civil Suit No.35-A/2012 before the Civil Judge, Class-II, Bagli, District - Dewas and the said Civil Suit was decreed vide judgment and decree dated 28/08/2014 and the said Will was also not found to be proved and, therefore, once a document has been interpreted by Civil Court after recording the evidence, the same cannot be taken into consideration by another Court for any other purpose.
4. That, after the judgment and decree passed in earlier suit, preferred before learned Appellate Court seeking permission to file an application for probate but the learned Appellate Court vide order dated 16/07/2018 dismissed the said application holding that no such permission can be granted and the appeal was also dismissed affirming the judgment and decree of the learned trial Court. After hearing the parties, the Court below has dismissed the application preferred by the applicants under Order 7 Rule 11 of CPC by impugned order dated 9/11/2019. Being aggrieved by that order, the applicants have filed the present civil revision.
5. Learned Senior Counsel appearing on behalf of the 3 (C.R. No.865/2019) applicants submits that the Court below has erred in dismissing the application preferred by the applicants under Order 7 Rule 11 of CPC. He submits that the learned Court below has failed to consider that the probate case was filed on the basis of Will which has already been disbelieved by the learned Civil Court after recording the evidence, therefore, once the Will has been found not to be proved, no probate on the said document can be issued. He further submits that the learned Court below has failed to consider Section 11 of the Civil Procedure Code. According to the said Section, that if the issues are identical in earlier suit and in subsequent suit between the same parties and litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court. He further submits that in the present case, in the earlier suit, the first and second issues which were framed by the learned Courts were with regards to the same Will and, therefore, the issued in regards to the authenticity of the Will has already been decided and, therefore, the said Will cannot be gone into in the present case. He further submits that the Court below has erred in holding that the application for 4 (C.R. No.865/2019) probate does not fall within the definition of suit. He submits that Section 11 of C.P.C. would not only deals with the suit, but also deals with the issues which were directly or substantially involved in a case. Learned Senior Counsel further relied on the judgment passed by the Apex Court in the case of Mahila Bajrangi(Dead) Through LRs. & Ors. Vs. Badribai W/o Jagannath & Anr. reported in (2003) 2 SCC 464.
6. Counsel for the non-applicants supports the order passed by the Court below and submits that as per judgment passed by the Apex Court in the case of Vaish Aggarwal Panchayat Vs. Inder Kumar & Ors. reported in AIR 2015 SC 3357, the plaint cannot be rejected. On the basis of principles of res judicata, as the res judicata is mixed question of law and fact which may require not only examination of the plaint but also other evidence. Further, on the basis of judgment passed by the Division Bench of Bombay High Court in the case of Jerbanoo Rustomji Garda Vs. Pootlamai Maneeksha Mehta reported in AIR 1955 Bombay 447, wherein the Division Bench has held that a decision as to proof of by Civil Court can under no circumstance operate as res judicata in probate proceedings and on the basis of the said judgment, learned counsel for the 5 (C.R. No.865/2019) non-applicants submits that the Court below has rightly rejected the application preferred by the applicants under Order 7 Rule 11 of C.P.C. He further submits that in earlier suit relief was sought for declaration of title on the basis of Will. However, in probate case, no such relief can be granted. He further submits that in the judgment passed by the Civil Court regarding declaration of title, that would be applicable only to the parties to the lis. However, the order passed on the application for probate filed under Indian Succession Act would be a judgment in rem. Therefore, he submits that the order impugned passed by the Court below is just and proper. He further relied on the judgment passed by Orissa High Court in the case of Chintamoni Barik & Anr. Vs. Chari Bewa reported in AIR 1962 Orissa 224( V 49 C 76 ).
7. Heard learned counsel for the parties and perused the record.
8. The present civil revision has been filed by the applicants challenging the order dated 9/11/2019, passed by the II Additional District Judge, Bagli, District - Dewas in Succession MJC No.06/2018 whereby, dismissing the application filed under Order 7 Rule 11 of CPC.
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(C.R. No.865/2019)
9. In the present case, the non-applicant No.1 filed an application under Schedule 4 Section 276 of the Indian Succession Act for seeking probate of the properties mentioned in the application. The applicants, thereafter, filed an application under Order 7 Rule 11 of CPC contending that the said application is based on a Will and on the basis of the said Will, a probate cannot be granted. It has also been averred in the application that earlier the suit was filed between the same parties for the same piece of land which was registered as Civil Suit No.35-A/2012 before the Civil Judge, Class-II, Bagli, District
- Dewas and the said Civil Suit was decreed vide judgment and decree dated 28/08/2014 and regarding the Will the Court has given a finding that it was not found to be proved. Therefore, once a document has been interpreted by Civil Court after recording the evidence, the same cannot be taken into consideration by another Court for any other purpose. Against the said judgment and decree passed in the earlier suit an appeal was preferred before the learned Appellate Court by which the non-applicants sought permission to file an application for probate, but the learned Appellate Court vide order dated 16/07/2018 dismissed the said application holding that no such 7 (C.R. No.865/2019) permission can be granted and the appeal was also dismissed. The non-applicants have filed reply to the said application refuting the allegations made therein. The trial Court after hearing both the parties, vide order dated 9/11/2019 has dismissed the said application. Being aggrieved by the order that order, the present writ petition has been filed.
10. Section 11 of Civil Procedure Code reads as under :-
"No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court."
11. As per the aforesaid section, if issues are same in former as well as subsequent suit, then it would be barred by principles of res judicata.
12. In the present case, the non-applicants had filed a suit earlier. However, subsequently, the non-applicants had filed an application under Section 276 of the Indian Succession Act for probate, which does not come within the definition of Suit. For attracting the provisions of Section 11 of C.P.C., one of the condition is that the Court, which has passed the judgment in 8 (C.R. No.865/2019) earlier suit was competent to decide the subsequent suit also. In the present case, earlier suit was filed on the basis of the Will for declaration of title which can only be granted by the Civil Court, Class-II. However, application under Section 276 of the Indian Successions Act, which is filed by the non-applicants for granting the probate, only the District Judge is competent to decide the matter. Thus, the Civil Court is not competent to decide the matter filed under Section 276 of the Indian Succession Act.
13. The Division Bench of the Bombay High Court in the case of Jerbanoo Rustomji Garda(supra) has held as under :-
In our opinion, it is clear that a decision as to the proof of the will given by any civil Court can under no circumstance operate as 'res judicata' in probate proceedings taken out in the Probate Court. In a civil suit the Court is only concerried with deciding the rights between the parties. In a Probate Court the position is entirely different.
The Probate Court is a Court of conscience and it does not decide rights between parties but it has to deliver a judgment which would become a judgment 'in rem' and this judgment will bind not only the parties before it but the whole world. Therefore, the approach of a Probate Court to the question before it is different from the approach of a civil Court adjudicating upon the rights between the parties, and this position is made clear by the provisions of Section 41, Evidence Act.
It is only a final judgment, order or decree of a competent Court, in the exercise of probate, matrimonial, admiralty or insolvency jurisdiction which confers upon or takes away from any person any legal character, or which declares any person to be entitled 9 (C.R. No.865/2019) to any such character, or to be entitled to any specific thing, not as against any specified person but absolutely, is relevant when the existence of any such legal character, or the title of any such person to any such thing, is relevant, and such judgment, order or decree has been made conclusive proof with regard to the legal character which it declares.
Therefore, a judgment 'in rem', which is the judgment with which Section 41 deals, is a judgment passed by a Court as the exclusive Court dealing with probate matters. A civil Court dealing with the same question, deciding the same issue, cannot pass a judgment which would bind the world and would constitute a judgment 'in rem'. Therefore, even though the civil Court here has decide ed a question as to the proof of the will and the codicil and although it has held that the will and the codicil have been proved, even so its judgment will have no binding effect as a judgment 'in rem'. From this it must follow that this decision cannot operate as 'res judicata' and cannot bind the Probate Court. The Probate Court must apply its own mind and must satisfy its own conscience that the will or the codicil put forward as the last will or codicil of the deceased is his last will and codicil. It must be satisfied as to the execution of the document, it must be satisfied as to the testamentary capacity of the deceased, and that satisfaction cannot be influenced or affected by any decision given by any civil Court although the issue raised was identical.
14. Thus, the Division Bench of Bombay High Court has held that the proof of the Will given any Civil Court can under no circumstance operate as ' res judicata' in probate proceedings taken out in the Probate Court. In a civil suit the Court is only concerned with deciding the rights between the parties and the Probate Court is a Court of conscience and it does not decide rights between parties but it has to deliver a judgment which would become a judgment 'in rem' and this judgment will bind 10 (C.R. No.865/2019) not only the parties before it but the whole world.
15. Similarly, the Orissa High Court in the case of Chintamoni Barik & Anr.(supra), has held that a decision on the question of title given by a Munsiff's Court in a prior suit for declaration of title, challenging a will as fraudulent, and subsequently affirmed by the High Court in second appeal, does not operate as res judicata in subsequent probate proceedings under Section 276, Succession Act.
16. Thus, in both these judgments, the Court after holding that even if a Will has been produced in Civil Court and finding has been given regarding Will by the Court then it will not operate as res judicata in application filed under Section 276 of the Indian Succession Act for probate. In the present case also, the Civil suit was filed by the non-applicants for declaration of title on the basis of Will. However, the said Will was not found to be proved. Therefore, the non-applicants are free to file an application under Section 276 of the Indian Succession Act for probate and the said application would not not be hit by principles of res judicata.
17. The Apex Court in the case of Vaish Aggarwal Panchayat(supra), has held that the res judicata involves mixed 11 (C.R. No.865/2019) question of law and fact, requires not only examination of plaint but also other evidence and, therefore, it cannot be a ground for rejection of the plaint. So far as judgment relied by the learned Senior Counsel for the applicants is concerned, it would not be applicable in the facts and circumstances of the case.
18. In the light of the aforesaid, there is no error committed by the Court below. Therefore, I do not find any reason to interfere with the impugned order. The civil revision is, accordingly, dismissed.
(Ms. Vandana Kasrekar) Judge pn Digitally signed by Preetha Nair Date: 2020.03.18 16:54:03 +05'30' 12 (C.R. No.865/2019) 13 (C.R. No.865/2019)