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2006 DIGILAW 843 (ORI)

Namita Das v. Pradyumna Kumar Mohanty

2006-12-13

A.S.NAIDU

body2006
JUDGMENT A. S. NAIDU, J. : Challenging the order dated 20.7.2005 passed by the Civil Judge (SD), Khurda in C.S. No.118 of 2004 rejecting the prayer of the present petitioner who is defendant No.1 in the said suit for staying the proceedings of the suit, the present Writ Petition has been filed. 2. According to learned counsel for the petitioner, one Prafulla Kumar Mohanty during his lifetime by a registered Will dated 5.5.1995 had bequeathed a land in her favour measuring Ac.0.565 dec. appertaining to Plot No.622, Khata No.5 of Mouza-Gurujanga. Accordingly after the death of Prafulla Kumar Mohanty the petitioner filed Misc. Case No.1 of 2004 before the District Judge, Khurda at Bhubaneswar praying for grant of Letters of Administration which case is pending. 3. Opposite parties 1 to 4 who are sons and daughters of said late Prafulla Kumar Mohanty have filed the aforesaid Civil Suit challenging the said Will in favour of the petitioner. Stating that as the issue to be decided in both the Civil Suit and the Probate Misc. Case was the same, she filed a petition before the Court below to stay the proceedings of the Civil Suit until disposal of the aforesaid Misc. Case No.1 of 2004 pending before the District Judge to avoid any conflicting order. It is submitted by the learned counsel for the petitioner that the learned Civil Judge having passed the impugned order rejecting the prayer of the petitioner without appreciating the law, the said order is not sustainable. Relying on a decision of this Court reported in (1989) 31 OJD 628 (Sri Sri Gramadevati Budhi Thakurani v. Purna), learned counsel for the petitioner forceful¬ly submitted that during pendency of a proceeding under Sections 211 and 213 of the Indian Succession Act, the proceeding of the Civil Suit ought to have been stayed. 4. Learned counsel for the opposite parties who are plain¬tiffs in the suit, at the other hand, submitted that the afore¬said decision relied upon by the learned counsel for the petitioner has no application to the present case. He submitted that the dispute in the decision referred to above was for speci¬fic performance of a Court while in the present suit the prayer is to set aside a Will. He submitted that the dispute in the decision referred to above was for speci¬fic performance of a Court while in the present suit the prayer is to set aside a Will. According to him law is well settled that suit for specific performance of contract or partition cannot proceed if a probate proceeding is pending, inasmuch as the right, title and interest with regard to the property be¬queathed under the Will are involved in the said suit; where in the case at hand, the opposite parties as plaintiffs challenge the execution of the Will itself and a civil Court is only compe¬tent to decide the issues raised in the suit. He further submit¬ted that a probate Court has limited jurisdiction and that too only with regard to execution of a Will. It cannot go into the right, title or interest of the executant and other questions that may be required to be determined in the suit, and as such proceedings of the aforesaid Civil Suit could not be stayed. 5. Heard learned counsel for both sides at length. Perused the materials produced before this Court. As would be evident from the plaint, C.S. No.118 of 2004 is one for declaration of right, title and interest of the plaintiffs in respect of the suit land, cancellation of sale deeds, permanent injunction and for declaration that the registered Will dated 5.5.1995 executed by late Prafulla Kumar Mohanty in favour of defendant No.1 is ineffective and un-enforceable against the plaintiffs besides other consequential reliefs. 6. After perusing the pleadings of the parties this Court is satisfied that it is a fit case where the cause of action to be considered and issues to be decided in the two proceedings, i.e. Probate Misc.Case and the Civil Suit, are distinctly sepa¬rate. Thus proceedings of the suit cannot await disposal of the Probate Misc.Case. But then proceeding of the lis in two differ¬ent Courts may lead to conflicting decisions. This Court there¬fore directs that the Probate Misc. Case which is pending before the District Judge, Khurda at Bhubaneswar be transferred to the Court of the Civil Judge (SD), Khurda. This Court further directs that in order to avoid conflicting decisions, the Probate Misc. Case and the Civil Suit be tried and disposed of simultaneously by the Civil Judge (SD), Khurda. With the aforesaid observation/direction the Writ Petition is disposed of. Petition disposed of.