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2012 DIGILAW 1471 (PAT)

Ram Sagar Singh @ Ramashrey Singh v. Ganga Devi

2012-10-16

JYOTI SARAN

body2012
ORDER Heard Mr. Shiv Nandan Rai, learned Senior Counsel appearing on behalf of the petitioner and Mr. Dhruv Narayan, learned Senior Counsel appearing for the opposite parties. 2. This Civil Revision application is directed against the order dated 05.08.2010 passed in Miscellaneous Case No. 02 of 2008, whereby learned Additional District Judge, F.T.C.-II, Lakhisarai has been pleased to allow the application filed by the petitioner-opposite party no. 1 under Order 9 Rule 9 of the Code of Civil Procedure (hereinafter referred to as the ‘Code’) and recalled the order dated 19.02.2008 whereunder Probate Case No. 14 of 1989 had been dismissed for default and as a consequence thereof Probate Case No. 14 of 1989 has been restored to its original file. 3. The order of the court below is sought to be questioned in the backdrop of the Division Bench pronouncement of this Court reported in AIR 1963 Patna 83 (Magan Singh Vs. Deonandan Missir and others) holding the provisions of Order 9 Rule 9 of the Code not applicable to probate proceedings dismissed for default relying upon a judgment of this Court reported in AIR 1943 Patna 281 (Gorakh Ahir Vs. Jamuna Ahir). 4. Following the judicial pronouncement in the case of Magan Singh (supra) it is contended that the order passed by the learned court below restoring the probate proceedings is not sustainable. 5. Mr. Dhruv Narayan has appeared for the opposite parties in support of the order impugned and with reference to the provisions of Section 141 of the Code of Civil Procedure, it is submitted that except proceedings arising out of Article 226, the procedure provided under the Code is applicable to all suits and proceedings pending before any Court of civil jurisdiction. Again with reference to the provisions of Section 264 of the Indian Succession Act, 1925, it is submitted that the District Judge has been empowered for grant and revocation of probate and letters of administration and in terms of Section 268 of the said Act the proceedings of such nature is to be governed by the provisions of the Code. With reference to the provisions of Section 295, it is stated that the procedure in contentious cases has also been outlined and again looks for support to the provisions of the Code for its disposal. With reference to the provisions of Section 295, it is stated that the procedure in contentious cases has also been outlined and again looks for support to the provisions of the Code for its disposal. It is thus submitted that where neither the Code nor the provisions of the Indian Succession Act oust the jurisdiction of the other rather on more than one occasions the Indian Succession Act refers to the provisions of the Code for regulation of probate proceedings, no infirmity could be found in the order impugned. 6. Learned counsel in support of his submissions has relied upon the following judgments:– (i) AIR 1936 Lahore 863 (Roop Lal and others Vs. Manohar Lal and others); (ii) 1985 Calcutta 275 (Vimal Kant Gupta Vs. Sarojani Koner) (iii) AIR 1971 Patna 391 (Tribeni Kuer Vs. Shankar Tiwari) 7. I have heard learned counsel for the parties and have perused the materials on record including the judgments relied upon by learned counsel appearing on behalf of the contesting parties. The judgments relied upon by the learned counsel are all Division Bench pronouncements. It is not in contest that the Division Bench of this Court in the case of Magan Singh (supra) has been pleased to hold that the provisions of Order 9 Rule 9 of the Code has no application to a contentious suit for probate of will dismissed for default. The conclusion drawn by the Division Bench is in the light of an earlier pronouncement rendered in the case of Gorakh Ahir Vs. Jamuna Ahir reported in AIR 1943 Patna 281. 8. The issue again fell for consideration before another Division Bench of this Court in the case of Triveni Kuer Vs. Shankar Tiwari (supra) and in which one of the Hon’ble Judges i.e. Justice N.L. Untwalia (as his Lordship then was), was also a party to the judgment rendered in the case of Magan Singh. The Division Bench in the case of Tribeni Kuer (supra) while taking note of the judgment rendered in the case of Gorakh Ahir (supra) which was the basis of the judgment rendered in the case of Magan Singh (supra) was pleased to observe as follows:– “4. In other words, the contention of learned counsel, appearing for the petitioners, is that provisions of Order IX, Rule 13 of the Code of Civil Procedure are inapplicable to the probate proceedings. In other words, the contention of learned counsel, appearing for the petitioners, is that provisions of Order IX, Rule 13 of the Code of Civil Procedure are inapplicable to the probate proceedings. In support of this contention reliance is placed on the case of Gorakh Ahir Vs. Jamuna Ahir, reported in AIR 1943 Pat 281. In this case, no doubt, their Lordships have observed that provisions of Order 9 Rule 9 of the Code of Civil Procedure have no application to a case for grant of probate of a will. On the basis of this decision, it has been strenuously argued on behalf of the petitioners that provisions of Order 9, Rule 13 of the Code of Civil Procedure as well should be held to be inapplicable to probate proceedings and that the learned District Judge had no jurisdiction to set aside ex parte revocation order by taking recourse to the provisions of Order 9, Rule 13 of the Code. 5. It may be stated that Section 141 of the Code of Civil Procedure lays down that “the procedure provided in this Code in regard to suits shall be followed, as far as it can be made applicable in all proceedings in any Court of Civil Jurisdiction”. To the similar effect is the provision of law laid down in Section 268 of the Indian Succession Act which recites as follows: “The proceedings of the Court of the District Judge in relation to the granting of probate and letters of administration shall, save as hereinafter otherwise provided, be regulated, so far as the circumstances of the case permit, by the Code of Civil Procedure, 1908.” On reading these two provisions of the law referred to above, it follows that the Code of Civil Procedure will apply to all proceedings before the District Judge in relation to the granting of probate and letters of administration so far as the circumstances of the case permit. 6. In the case reported in AIR 1943 Pat 281 referred to above, their Lordships of the Patna High Court relied on the case of Ramani Debi Vs. Kumud Bandhu Mukherji reported in (1910) 12 Cal LJ 185. 6. In the case reported in AIR 1943 Pat 281 referred to above, their Lordships of the Patna High Court relied on the case of Ramani Debi Vs. Kumud Bandhu Mukherji reported in (1910) 12 Cal LJ 185. In the Calcutta case, it was held that the dismissal for default of an application for probate does not amount in law to an adjudication upon the question of the genuine character and legal validity of the will and, therefore, such a dismissal cannot debar a second application for probate. In the Calcutta case, the question for consideration was whether Section 103 of the Code of Civil Procedure, 1882, which is equivalent to the provision of Order 9, Rule 9 of the Code of Civil Procedure, 1908, will operate as a bar to a fresh application for probate. Under Section 103 of the Code of 1882, a party whose suit was wholly or partly dismissed was precluded from bringing a fresh suit in respect of the same cause of action. In the opinion of their Lordships of the Calcutta High Court, a party interested has right to make a second application for the grant of probate even if his first application was dismissed for default. In this view of the matter, their Lordships were of the view that Section 103 of the Code of 1882 should not be held applicable to dismissal for default of an application for probate because the party interested could not be precluded from filing a fresh application for grant of probate in respect of the will. 7. Their Lordships of the Patna High Court in AIR 1943 Pat 281 have followed the aforesaid principles of law enunciated in (1910) 12 Cal LJ 185 and observed that in the circumstances of the case the provisions of Order 9, Rule 9 of the Code of Civil Procedure have no application to an application for grant of a probate. This means that the party interested cannot be precluded from filing a fresh application for grant of probate when his previous application for grant of probate was dismissed for default. It has already been referred to above that the provisions of the Code of Civil Procedure have been made applicable to probate proceedings so far as the circumstances of the case will permit. It has already been referred to above that the provisions of the Code of Civil Procedure have been made applicable to probate proceedings so far as the circumstances of the case will permit. The rights and privileges of a party under the provisions of the Indian Succession Act cannot be taken away by application of the provisions of Order 9, Rule 9 or Order 9, Rule 13 of the Code of Civil Procedure. “Section 141” says Bachawat, J., at page 1801, Column 1, in Usmanali Khan Vs. Sagar Mal, AIR 1965 SC 1798 , “makes applicable to other proceedings only those provisions of the Code which deal with procedure and not those which deal with substantive rights”. [Emphasis is mine.] 9. The Division Bench thus having taken note of the earlier judgment have clarified the issue regarding the applicability of the provisions of the Code to Probate Proceedings and held that there is no such curtailment of the rights of the parties to a Probate Proceedings to invoke the procedures available to him under the Code. The order passed by the court below as impugned in the present proceedings thus finds its answer. 10. In fact I have chosen to reproduce the relevant paragraphs of the judgment in the case of Tribeni Kuer to demonstrate that the foundational facts in the case of Magan Singh and Gorakh Ahir (supra) were different and the applicability of the provisions of Order 9 Rule 9 was being considered in the backdrop of the provisions of Section 103 of the Code as it then existed and which prohibited the filing of a second probate case where the earlier one stood dismissed for default. The Division Bench in those cases were not considering the applicability of Order 9 Rule 9 of the Code in context with the restoration of the probate case rather the issue was whether a second probate case would lie where the earlier stood dismissed for default. The legal position has been explained and clarified in the judgment of Triveni Kuer when the Division Bench taking note of the earlier pronouncement in the case of Gorakh Ahir which was the basis for the judgment rendered in the case of Magan Singh, have held that the rights and privileges of the parties under the provisions of the Indian Succession Act cannot be taken away by the application of any provisions of the Code. 11. For the reasons aforesaid, no infirmity or any jurisdictional error can be found in the order impugned. The application is dismissed.