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1997 DIGILAW 815 (PAT)

Kedar Prasad v. Kamla Devi

1997-11-19

SACHCHIDANAND JHA

body1997
Judgment Sachchidanand Jha, J. 1. This civil revision arises out of an interlocutory order refusing to issue warrant/proclamation under Order XVI Rule 10 of the Code of Civil Procedure (in short, CPC) in the matter of appearance of witness in a proceeding under Section 263 of the Indian Succession Act (in short, the Act). 2. The petitioner filed petition for grant of probate of the Will said to have been executed by his mother Smt. Dulhin Indira Devi on 25.10.70 in his favour, under Sec. 276 of the Act, which was registered as Probate Case No. 22 of 1985. Ganga Prasad his father, pursuant to notice appeared in the case. It is said that on 12.7.88 the petitioner, his wife and son, on the one side and Ganga Prasad, on the other executed a deed of Panchnama authorising one Maheshwari Prasad to resolve the dispute as an Arbitrator. On 21.9.88 the said Maheshwari Prasad is said to have made an award on the basis of compromise petition dated 15.9.88 filed by the parties before him. On 7.12.88 pursuant to the award compromise petition was field in Court in the probate case. On 23.12.88 the Court, namely, 3rd Additional District Judge, Sitamarhi decreed the suit in terms of the compromise directing that the compromise petition will form part of the decree. 3. On 26.8.89 Ganga Prasad filed petition stating, inter alia, that the Will in question was forged and fabricated; that on 27.9.88 he had sold the property (cinema hall) to one Smt. Meena Devi Sunderka and put her in possession which caused annoyance to Kedar Prasad, i.e. the petitioner, his wife and son, who with the help of their associate overpowered him and obtained his signature and LTI on several petitions without his consent under coercion. Later he learnt that one such petition was converted as compromise petition and filed in the probate case. He challenged the compromise petition as fraudulent, forged and fabricated. On these and other grounds as mentioned in the petition he sought revocation of the probate under Sec. 263 of the Act. Application was registered as Misc. Case No. 17/89. The case is presently in the stage of evidence. 4. He challenged the compromise petition as fraudulent, forged and fabricated. On these and other grounds as mentioned in the petition he sought revocation of the probate under Sec. 263 of the Act. Application was registered as Misc. Case No. 17/89. The case is presently in the stage of evidence. 4. The petitioner in course of examination of his witnesses filed an application to issue warrant and proclamation to secure the presence of Maheshwari Prasad as well as Harikeshwar Mishra and Chandra Shekhar Jha (they are two alleged attesting witnesses of the Will). By the impugned order the Court has rejected the application observing that the question which is to be decided in the misc. case is whether the Will could have been probated on compromise without examination of the witnesses and, therefore, the persons concerned do not appear to be material witnesses. 5. Mr. S.K. Mishra, learned Counsel for the petitioner submitted that Misc. case lies outside the scope of Sec. 263 of the Act inasmuch as the probate can be revoked only on one or the other ground mentioned in Clauses (a) to (e) specified in Sec. 263 as constituting "just cause". The ground on which the grant of probate is sought to be revoked in the present case does not come within the purview of any of the said clauses. He also submitted that for a just decision in the case the original award of the Arbitrator, Maheshwari Prasad, is necessary to be brought on record. The Court below therefore committed error in disallowing the petition for proclamation to secure document and his presence. 6. On the question of maintainability of the Misc. case, Mr. Tarakant Jha, learned Counsel for the opposite party submitted that the aforesaid order dated 23.12.88 granting probtae in favour of the petitioner was without jurisdiction because the probate case cannot be disposed of in terms of compromise. He pointed out that no finding was recorded in the probate case that the Will in question was genuine. He also pointed out that the probate case was disposed of while the matter was in the stage of enquiry regarding payment of probate duty under Sec. 19H(5) of the Court Fees Act without examining any witness. 7. He pointed out that no finding was recorded in the probate case that the Will in question was genuine. He also pointed out that the probate case was disposed of while the matter was in the stage of enquiry regarding payment of probate duty under Sec. 19H(5) of the Court Fees Act without examining any witness. 7. Before considering the submissions of the Counsel for the parties it would be apt to refer to the relevant part of the judgment/order by which the probate suit was decreed and probate was granted to the petitioner. Paragraphs 4, 5 and 6 of the said judgment may usefully be quoted as follows: 4. A joint compromise petition duly signed by both sides and their learned lawyers was filed on 7.12.88 praying therein to grant probate of the Will in question in favour of applicant Kedar Prasad. On checking, it has been found in order. The O.P. Ganga Prasad has accepted the valuation as given in the application for grant of probate. It has been asserted in the compromise petition that a private partition took place in their family in the year 1964 and Yadast was prepared on 14.8.64 and the co-sharers came in exclusive possession of their allotted shares. Thereafter, testator Smt. Dulhin Indra Devi wife of O.P. Ganga Prasad executed the Will in question on 25.10.70 in her life time in favour of her son-the applicant Kedar Prasad and since after her death, the applicant has been coming in possession of the properties under the Will. It has been further asserted that the Will in question is valid and genuine, hence, probate may be granted in favour of the applicant in terms of compromise. 5. In view of compromise in between the parties, I accept the compromise petition and hold that the Will in question executed by Smt. Dulhin Indra Devi in favour of the applicant on 25.10.70 is valid and genuine. Thus, the applicant is entitled to a probate, as prayed for. 6. It is, therefore, ordered that the suit be decreed in favour of the applicant-plaintiff for grant of probate. The compromise petition will form part of the decree and the parties will bear their own costs. Thus, the applicant is entitled to a probate, as prayed for. 6. It is, therefore, ordered that the suit be decreed in favour of the applicant-plaintiff for grant of probate. The compromise petition will form part of the decree and the parties will bear their own costs. It would thus appear from the afore-quoted portion of the judgment that the suit was disposed of and probate was granted without examining witnesses and/or recording any finding as to the genuineness of the compromise, in terms of the compromise petition, as if the suit was an ordinary suit for title or partition. 7-A. The question as to whether it is open to the Probate Court to dispose of the suit and grant probate in terms of the compromise without examining witnesses etc. is not res Integra. 8. In Mt. Janakbati Thakurain V/s. Gajanand Thakur AIR 1916 Patna 82, objection had been filed challenging the genuineness of the Will. The Court accordingly framed issues, amongst others, as to whether the Will was genuine, and whether the testator executed the Will in sound state of mind. Later, after compromise petition was filed by which the objector withdrew from the contest, the Court recast the issues to the effect whether the case can be disposed of in terms of the compromise petition and whether the objector had signed the compromise petition with full knowledge of its contents. The Court answered both the issues in favour of the application and granted probate. Setting aside the order this Court observed: The main issue in such a case is, whether or not the Will has been proved, and as has been pointed out in several decisions in the Courts, the only effect of a compromise is to reduce a contentious proceeding into one which is not contentious but this does not absolve the Court from the task of either granting probate or refusing it. If a compromise has been made and the objector withdraws from the contest the Court will grant probate in common form, but the Court cannot dismiss the case altogether and embody the terms of the compromise as if the decree was one capable of execution by him. 9. The same view was reiterated in Jugeshwar Nath Sahay V/s. Jagtdhuri Prasad AIR 1917 Patna 41. 9. The same view was reiterated in Jugeshwar Nath Sahay V/s. Jagtdhuri Prasad AIR 1917 Patna 41. The following observation may usefully be noticed as hereunder: It is well settled by authority that an application for probate cannot legally be disposed of by a compromise. The law imposes on the Court itself the duty of determining whether the Will is genuine or not. .... Order XXIII, Rule 1, Civil P.C., which says that a plaintiff may withdraw his suit or abandon a part of his claim therefore, does not, in my opinion, apply to an application for Probate. It is the duty of an applicant for Probate to obtain the opinion of the Court upon the genuineness or otherwise of the Will. 10. Reference may also be made to Mutukdha Singh V/s. Prem Devi -- . In that case, however, although the compromise was filed by which the caveator withdrew her objection and agreed that the grant be made to the applicant, the Court had taken care to examine attesting witness who proved the Will and to record a finding, after accepting his evidence, that the Will had been duly proved. In this view of the matter, the grant of probate was found to be in order. This Court observed, "if the learned Judge had not examined any witness, nor decided the question of genuineness of the Will and allowed the application of the applicant in terms of the compromise, certainly such a grant would have come within the mischief of the principles laid down in the cases above mentioned. 11. In view of the above decisions, observation of the Court below that "the question which is to be decided in the misc. appeal is whether the Will could have been probated on compromise without examination of the witness" has to be accepted as correct position in law. Prima faice, I am inclined to think, examination of so many witnesses (15 witnesses have already been examined on behalf of the petitioner) appears to be wholly unnecessary. appeal is whether the Will could have been probated on compromise without examination of the witness" has to be accepted as correct position in law. Prima faice, I am inclined to think, examination of so many witnesses (15 witnesses have already been examined on behalf of the petitioner) appears to be wholly unnecessary. The grant is sought to be revoked on the ground, inter alia, of fraud but if it is found that the Court made the grant without following the correct procedure, that is, without examining witnesses, without being satisfied as to the genuineness of the Will, and without recording any finding to that effect, it can be said that the Court itself committed a mistake of law and jurisdiction. In such a case it would be rather its duty to rectify the mistake committed by it earlier. Beyond this, I do not want to say more, for the observation may affect the parties. 12. The Court is expected to dispose of the case keeping in view the legal position as laid down in the aforementioned decisions of this Court, without expanding the scope of the enquiry or examining unnecessary witnesses, at the earliest. 13. In view of the above discussion, I do not find any merit in this civil revision which is, accordingly, dismissed but without any order as to cost.