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2006 DIGILAW 769 (JHR)

Pushplata Prasad v. Dilip Kumar Sinha

2006-06-29

N.N.TIWARI

body2006
Order In this petition the petitioners have prayed for transfer of Probate Case No. 1 of 2003, now pending in the Court of District Judge, Palamau to the Court of learned Judicial Commissioner at Ranchi and also to transfer Title (Partition) Suit No. 29 of 1990, pending in the Court of learned Sub-Judge VII at Ranchi to the Court of Judicial Commissioner, Ranchi for joint trial for the said Probate Case No. 1 of 2003 and Title (Partition) Suit No. 29 of 1990 for the reason that the decision in probate proceeding will have a direct bearing and impact on the partition suit. 2. It has been stated that the opposite parties have filed a partition suit in the Court of Sub-Judge being Title (Partition) Suit No. 29 of 1990 which is now pending in the Court of Sub-Judge VII, Aanchi. All the parties, including the petitioners, have appeared in the said suit. It has been stated that the said properties of partition suit and the properties which are the subject matter in the probate case are one and the same and all the properties situate in the districts of Ranchi and Lohardaga. None of the properties, which is subject matter of the probate case, is situated in the district of Palamau. Only on the allegation of death of Lalita Devi, testatrix of the will, the said probate case has been tiled in the Court of District Judge, Palamau. It has been stated that• the petitioners have to fight litigations at two distant places in two districts for the same subject matter and they will be put to suffer unnecessary harassment. It has been stated that the subject matter of the said two cases is common property and the, common stand has been taken by the parties in both the cases, the issues are almost the same and there shall be common evidences in both of the cases. There will be sheer duplication of legal proceedings and the parties shall be put to unnecessary loss and agony. In such case there is possibility of two conflicting decision. There will be sheer duplication of legal proceedings and the parties shall be put to unnecessary loss and agony. In such case there is possibility of two conflicting decision. In order to avoid the same and for the ends of justice, the said probate case is required to be transferred to the Court of Judicial Commissioner, Ranchi and for the purpose of clubbing the said probate suit with the partition suit, the Title (Partition) Suit No. 29 of 1990, pending in the Court of Sub-Judge VII is required to be transferred to the said Court of Judicial Commissioner, Ranchi. 3. The opposite parties have appeared and have filed a counter, contesting the transfer petition. It has been stated that the opposite party No. 1 is the legatee in the registered will executed by Most. Lalita Devi and he is a resident of district Palamau and it would be inconvenient for him to bring evidences to Ranchi and contest the probate case. It has been stated that the said Lalita Devi died within the jurisdiction of the District Judge, Palamau and as such the said Probate Case No. 1 of 2003 has been filed in tl1e said Court. There is no valid ground for transfer of the case to the Court of Judicial Commissioner, Ranchi. 4. Mr. Manjul Prasad, learned senior counsel, appearing on behalf of the petitioners, submitted that the parties, including the opposite party No. 1 have already engaged their counsel at Ranchi in Title (Partition) Suit No. 29 of 1990, which is running for several years in the Court of Sub-Judge VJI at Ranchi. In the said Title (Partition) Suit No. 29 of 1990, the same stand has been taken on behalf of the parties and the issues are almost the same which would arise in Probate Case No. 1 of 2003. The opposite party has to lead evidences in the said partition suit at Ranchi and the same set of evidences would be required to be adduced for both the cases and the parties shall not have to bear any extra burden for contesting Probate Case No. 1 of 2003 and in that view it will be in the interest of both the parties to avoid multiplicity of proceedings and unnecessary loss and harassment. Learned counsel referred to and relied on a decision .01 the Supreme Court in Nirmala Devi vs. Arun Kumar Gupta and Ors. Learned counsel referred to and relied on a decision .01 the Supreme Court in Nirmala Devi vs. Arun Kumar Gupta and Ors. reported in 2000(5) Supreme 145 and submitted that in cases where a suit can be clubbed with the probate proceeding, it is in the interest of justice to hear the said cases analogously. The Supreme Court has passed such order in similar circumstance and the title suit pending in the Court of Sub-Judge, Gopalganj in that case was transferred to the Court of District Judge, Gopalganj for clubbing the said cases for analogous trial. 5. Mr. P. Gangopadhyay and Mr. Anil Kumar Sinha, appearing on behalf of the respective opposite parties, one after the other, submitted that though the partition suit is pending in the Court of Sub-Judge VII, Ranchi yet when the cause of action has arisen in the district of Palamau and the legatee-opposite party is a resident of the said district, it would not be convenient for him to proceed with the probate case in the Court of Judicial Commissioner, Ranchi. It has been further submitted that the said judgment reported in 2000(5) Supreme 145 has got no application to the facts of the present case. The petitioners' petition is, thus, fit to be rejected. 6. After hearing learned counsel, considering the submissions made by them and the materials available on record, I find that it is an admitted position that same subject matter is involved in both the said cases, i.e., in Probate Case No.1 of 2003 pending in the Court of District ,Judge, Palamau and in Title (Partition) Suit No. 29 of 1990, pending in the Court of learned Sub-Judge VII at Ranchi. It is also admitted that both the parties have engaged their counsel in Title (Partition) Suit No. 29 of 1990 and they are proceeding with the suit for several years. In the said partition suit also the trial has not begun and no evidence has been adduced on behalf of any of the parties. Both the parties have admitted that stands of the parties in the said two cases are almost the same and issues involved are almost similar in both the said cases and the same set of oral and documentary evidences are required to be led by the parties. Both the parties have admitted that stands of the parties in the said two cases are almost the same and issues involved are almost similar in both the said cases and the same set of oral and documentary evidences are required to be led by the parties. Considering the above, I am of the view that it would be convenient for both the parties to proceed with the case at one place and since the partition suit has been running in the Court of Sub-Judge VII, Ranchi, there will be no difficulty for either party if the Probate Case No. 1 of 2003 is transferred to the Court of Judicial Commissioner, Ranchi. Since the same stand has been taken in the respective pleadings of the parties and admittedly controversies between the parties in the two cases are the same and identical set of evidences are required to be led in support of their respective cases, it is expedient in the interest of justice to transfer the Title (Partition) Suit No. 29 of 1990 also, to the Court of Judicial Commissioner, Ranchi to be tried together with 'the Probate Case No. 1 of 2003. Both the parties have admitted that the valuation of the partition suit is Rs. 10,00,000/- (Rupees Ten Lakh) and in that view even an appeal arising out of the said partition will lie within the jurisdiction of the High Court, as in case of any appeal arising out of the probate case, the High Courtis the appellate jurisdiction. The parties are not going to suffer on any count if the Probate Case No.1 of 2003 and the Title (Partition) Suit No. 29 of 1990 are transferred to and heard and decided by the Court of Judicial Commissioner, Ranchi. Accordingly, this petition is allowed. Probate Case No. 1 of 2003, pending in the Court of District Judge, Palamau is transferred to the Court of Judicial Commissioner, Ranchi; the Judicial Commissioner, Ranchi shall also recall the Title (Partition) Suit No. 29 of 1990 to his file from the Court of the Sub-Judge VII, Ranchi for clubbing the two cases and proceeding with the analogous trial thereof.