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2005 DIGILAW 225 (PAT)

Subhas Sinha v. Leshma Dutt @ Lesee

2005-02-28

body2005
ORDER 1. The petitioners who were opposite party in a proceeding filed under Section 192 of the Indian Succession Act, 1925 (hereinafter referred to as 'the' Act') before the District Judge, Patna has filed Civil Revision application against the order dated 21.6.2003 whereunder the petitioner of the aforesaid proceeding opposite party herein has been allowed the possession of the ground floor of the house in question. They have assailed the order on the ground that the learned District Judge while passing the order dated 21.6.2003 although noticed the two submissions that the proceedings under Section 192 of the Act is barred by limitation as the same was instituted beyond the period of limitation provided under Section 205 of the Act, that the proceedings should have awaited the result of the two Title Suits bearing No. 137/98 and 337/2001 pending in the different Court of Sub-Judge, Patna in which the questions similar to one involved in the said proceeding are also involved in the two suits, but failed to consider the same and passed the order dated 21.6.2003 which should be set aside with direction to reconsider the matter in the light of the two submissions within shortest possible time. 2. Before I consider the two submissions raised in the present application, it is necessary to record a few facts. Sri Kameshwar Prasad Sinha, who retired as Director, Income Tax, Bihar executed a will dated 3.2.1963 granting life estate over the subject matter of the will to his Wife Smt. Shiv Rani Sinha and after her death property was directed to vest in his sons and daughters through inheritance and succession. Sri Sinha died on 1.9.1967 whereafter Smt. Shiv Rani Sinha continued to enjoy the properties, which was the subject matter of the will until her death till 16.5.1997. After the death of Smt. Shiv Rani Sinha her children who were legatees under the will applied for Letters of Administration through one of the daughters Leshma Dutt, the present opposite party. The proceedings for grant of Letters of Administration was numbered as Test Case No. 5/1997. In those proceedings petitioner no.2 who is the wife of petitioner no.1 lodged a Caveat asserting that the portion of the subject matter of the will with structures thereon was gifted to her by Smt. Shiv Rani Sinha by means of a Registered deed of gift. In those proceedings petitioner no.2 who is the wife of petitioner no.1 lodged a Caveat asserting that the portion of the subject matter of the will with structures thereon was gifted to her by Smt. Shiv Rani Sinha by means of a Registered deed of gift. This Court under orders dated 16.4.1999 (Annexure-R/3/A) dismissed the Caveat observing that petitioner no.2 if so advised my file a separate suit and seek her relief there. Thereafter, this Court under orders dated 5th November, 1999 (Annexure-R-3) allowed Letters of Administration with a copy of the will annexed therewith in favour of the present opposite party. Having obtained the Letters of Administration the Opposite party on 13.2.2000 approached this Court through a petition filed under Section 192 of the Act wherein she made specific request that she be put in possession of the house which is the subject matter of the will as Letters of Administration has already been allowed in her favour Petitioner no.1 herein objected to the aforesaid prayer of the opposite party by filing objection, a perusal whereof indicates that in para 2(d) he took a specific objection that the petition under Section 192 of the Act was barred by limitation as the same was filed beyond six months of the death of the testator. This Court under orders dated 11.12.2001, Annexure R/5 without considering the merits of the points raised in the application dated 13.12.2000 filed under Section 192 of the Act as also without considering the objection fled on behalf of the petitioner to the averment made in the said petition disposed of the petition with the following observations: "Be that as it may, it is not necessary to go into the question for the simple reason that the application under Section 192 of the Act has to be filed before the District Judge and not before this Court. The petitioner, if so advised, may file before the District Judge Patna, who on such application being filed, will proceed under Chapter VII of the Act and pass an appropriate order in accordance with law. With the aforesaid direction, this application is, accordingly, disposed of. In compliance of the observations of, this Court contained in the order dated 13.l2.2001 the opposite party herein filed a petition under Section 192 of the Act before the District Judge, Patna on 9.2.2002. With the aforesaid direction, this application is, accordingly, disposed of. In compliance of the observations of, this Court contained in the order dated 13.l2.2001 the opposite party herein filed a petition under Section 192 of the Act before the District Judge, Patna on 9.2.2002. The present petitioners having been served with the notice appeared and filed their objection before the District Judge on 11.2.2002 which is contained in Annexure-2 to the supplementary affidavit filed on behalf of the petitioners. It appears therefrom that in the proceeding before the District Judge also the petitioner took the same objection which they had taken before this Court that the petition is barred under Section 205 of the Act and the question raised in the petition should be considered and disposed of in the aforesaid Title Suits 137/98 and 337/01 pending in different Courts of Subordinate Judge, Patna. The learned District Judge considered the matter initially under orders dated 26.4.2003 (Annexure-R/2) whereunder he directed the two petitioners who were opposite parties 1 and 2 before the District Judge to give vacant possession of the ground floor of the house and also to hand over the movable property and documents of the Testator and his wife to the opposite party with further direction to consider the objection of the petitioners herein in presence of both the parties on 28.4.2003. In continuation of the order dated 26.4.2003 the objections that the proceeding is barred by Imitation as also the same issue is being tried in the aforesaid Title Suits and the present proceeding under Section 192 of the Act be put on hold until decision in the Title Suit is made were again raised before the learned District Judge who having noticed the objection but without considering/recording any finding on the objection, allowed the proceeding under the impugned order dated 21.6.2003 and directed the petitioners to make over possession of the ground floor of the house in question in favour of the opposite party. 3. The Petitioners have assailed the said order by filing the present Civil Revision application in which also they have reiterated the same grounds, which were raised before the District Judge. In support of the aforesaid contention learned counsel for the petitioner has relied on a decision of the Hon'ble Supreme Court in the case of Manindra Land and Building Corporation Ltd. Vs. In support of the aforesaid contention learned counsel for the petitioner has relied on a decision of the Hon'ble Supreme Court in the case of Manindra Land and Building Corporation Ltd. Vs. Bhutnath Banerjee & others, Reported in AIR 1964 Supreme Court 1336 wherein their Lordships of the Supreme Court having considered the matter at length had ruled that if the Court below failed to decide the question of jurisdiction then the High Court while exercising the revisional jurisdiction under Section 115 of the Code of Civil Procedure should interfere in the matter and remand the case to the Court below for a decision on the question of jurisdiction. According to him in the present case in terms of the provisions contained in Section 205 of the Act, the learned District Judge had no jurisdiction to proceed with the petition filed under Section 192 of the Act as the same was filed beyond the period of six months of the death of the testator, his wife and grant of Letters of Administration. He also submitted that as the aforesaid two suits were pending in the Court of Sub-Judge in regard to the same subject matter of the will involving question of possession as such the District Judge was even obliged to await the judgment of the two Title Suits and for that purpose learned counsel for the petitioners relied on a decision if the case of Smt. Prativa Bose Vs. Kumar Rupendra Deb Raikat and others, reported in A.I.R. 1965 Supreme Court 540. 4. On the other hand, learned counsel for the opposite party first submitted that this civil revision application itself is not maintainable as the petitioners failed to challenge the order dated 26.4.2003, Annexure-R/2, whereunder the District Judge initially allowed the possession of the ground floor of the house in question to the opposite party. He further submitted that in any view of the matter remedy of suit being available to the petitioners in the light of the provisions contained in Chapter-7 of the Act, this civil revision application should not be entertained. In support of the aforesaid two submissions, learned counsel for the opposite party relied on a Division Bench decision of this Court in the case of Mahant Goswami Krishnadevan and Ramji Vs. Mahant Kapildeo Ramji, reported in A.I.R. 1942 Patna 251. In support of the aforesaid two submissions, learned counsel for the opposite party relied on a Division Bench decision of this Court in the case of Mahant Goswami Krishnadevan and Ramji Vs. Mahant Kapildeo Ramji, reported in A.I.R. 1942 Patna 251. Learned counsel for the opposite party further submitted that plea of limitation raised by the petitioners is a mixed question of fact and law and failure to consider the same by the District Judge shall only make his order illegal and not without jurisdiction. For this purpose, he relied on a decision of the Hon'ble Supreme Court in the case of Ittyavira Mathai Vs. Varkey Varkey and another, reported in A.I.R. 1964 S.C. 9-7, paragraph 8. Learned counsel further submitted placing reliance on the judgment of the Supreme Court in the case of Brij Gopal Mathur and another Vs. Kishasn Gopal Mathur and others, reported in A.I.R 1973 S.C. 1096, paragraph 5 that even if there is a jurisdictional error in the order, the High Court should be slow in interfering with the impugned order as substantial justice has been done between the parties since ground floor of the house in question has been restored to the heirs of testators. In this connection, learned counsel also placed reliance on the judgment of the Hon'ble Supreme Court in the case of Uma Devi Vs. T.C. Siddhan, reported in A.I.R. 2004 S.C. 1772, paragraph 28. 5. In this connection, learned counsel also placed reliance on the judgment of the Hon'ble Supreme Court in the case of Uma Devi Vs. T.C. Siddhan, reported in A.I.R. 2004 S.C. 1772, paragraph 28. 5. Having heard learned counsel for the parties, I am of the view that this civil revision application is maintainable even though the petitioners have not challenged the interim order dated 26.4.2003 as perusal of the said order itself indicates that thereunder direction to give vacant possession of the ground floor of the house was subject to the objection already filed by the present petitioners and for hearing the objection 28.4.2003 was fixed as the date and in my opinion the petitioners were not required to challenge the order dated 26.4.2003 as thereunder no final adjudication in regard to the possession of the ground floor of the house was ever made whatever adjudication was made under order dated 26.4.2003 it was subject to objection and to consider the objection a date was already fixed on 28.4.2003, as such, the petitioners were not obliged to challenge the order dated 26.4.2003 and the civil revision application cannot be held to be not maintainable on account of failure to challenge the order dated 26.4.2003. Having held the civil revision application to be maintainable, still this Court will not interfere with the impugned order as by tile impugned order the ground floor of the house in question has been restored to the heirs of the testator who are rightful owners of the property after the demise of the testator and his wife and that being so this Court respectfully following the dictum of the Hon'ble Supreme Court laid down in the case of Brij Gopal Mathur and another Vs. Kishan Gopal Mathur and Others (supra) does not wish to interfere with the impugned order. It is, however, made clear that petitioners herein shall be at liberty to assail the validity and correctness of the impugned order dated 21.6.2003 either by filing a separate suit or in the two suits bearing Title Suit Nos. 137/98 and 337/2001 pending in the two different courts of Sub-Judge, Patna. 6. In the result, the Civil Revision application is dismissed with observations No cost. 7. Mr. 137/98 and 337/2001 pending in the two different courts of Sub-Judge, Patna. 6. In the result, the Civil Revision application is dismissed with observations No cost. 7. Mr. P.N. Shahi, learned counsel appearing for the petitioners, after dictation of the order is complete, states that the petitioners wish to challenge the present order by filing a S.L.P. before the Hon'ble Supreme Court and he says that a period of two months, from the date of receipt of the certified copy, for which requisition shall be filed by tomorrow (01.03.2005), should be allowed to approach the Hon'ble Supreme Court. Let the petitioner avail the remedy of S.L.P. before the Hon'ble Supreme Court and until the Hon'ble Supreme Court considers the matter the District Judge should not proceed with the execution proceeding.