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2013 DIGILAW 448 (RAJ)

Kamla v. Mangi Bai

2013-02-21

ARUN BHANSALI

body2013
JUDGMENT Hon'ble BHANSALI, J.—This appeal under Section 384 of the Indian Succession Act, 1925 (`the Act') has been filed against the order passed by the Additional District Judge, Nimbahera dated 17.4.1998, whereby the application filed by the respondents No. 1 and 2 under Section 276 of the Act was allowed and a probate of will executed by deceased Bheru Lal dated 6.4.1992 was ordered to be granted to them. 2. Brief facts of the case are that Smt. Mangi Bai and Smt. Suhagi Bai, both daughters of Shri Veni Ram filed application under Section 276 of the Act seeking probate of registered will dated 6.4.1992 executed by their brother Bheru Lal, who died on 1.2.1993. It was stated in the application that they were real sisters of deceased Bheru Lal, who died issueless and had no wife and to take care of the fact that there is no dispute in the future, the said will was executed by the deceased Bheru Lal in their favour. It was further indicated that the appellant herein who was impleaded as defendant in the said application had got the land, which was bequeath under the will to them, mutated in her favour by claiming herself to be the wife of deceased Bheru Lal and the said land was acquired for construction of Mansarowar Dam and award in this regard was passed, which was sought to be received by the appellant herein. Ultimately, it was prayed that probate of the said will be issued in their favour. 3. Citations of the said proceedings were issued to the appellant, who appeared and opposed grant of probate in favour of the respondents No.1 and 2. It was claimed that the land in question was given to her by deceased Bheru Lal on 22.5.1980 by way of an agreement in lieu of maintenance and under Section 14 of the Hindu Succession Act, she has become full owner of the said property and in view of the said agreement, Bheru Lal had no right to execute the Will. She was in possession of the land-in-question since 22.5.1980 and has become owner thereof. Ultimately, it was prayed that the application for grant of probate be dismissed. The trial Court framed several issues based on the pleadings of the parties and evidence was also recorded. She was in possession of the land-in-question since 22.5.1980 and has become owner thereof. Ultimately, it was prayed that the application for grant of probate be dismissed. The trial Court framed several issues based on the pleadings of the parties and evidence was also recorded. However, during the pendency of the said proceedings on 7.4.1998, a compromise dated 31.3.1998 in the form of application under Order XXIII, Rule 3 CPC was filed by the appellant as well as respondents No.1 and 2. It would be appropriate to quote the said application/compromise, which reads thus: ^^izkFkZuki= & vkMZj 23 : 3 tk-nh- ek- egksn;] i{kdkjku dh vksj ls jkthukek fuEu izdkj is'k gS& 1- ;g fd izkFkhZx.k o foi{kh;k ds vkil esa jkthukek gks x;k gS rFkk eqvkotk jkf'k 6]92]895@- :- v{kjs N% yk[k ck.kos gtkj vkB lkS fipk.kos :i;s esa ekaxh ckbZ dk 1@3] lqgkxh ckbZ dk 1@3 rFkk deyk ckbZ ¼foi{kh;k½ dk 1@3 fgLlk j[kuk rS; fd;k gS bl izdkj blh vuqlkj rhuksa i{kksa dk cjkcj-cjkcj gd fgLlk jgsxkA 2- ;g fd i{kdkj [kpkZ viuk viuk ogu djsaxsA vr% fuosnu gS fd mDr vuqlkj mRrjkf/kdkj izek.k i= tkjh fd;k tkosA fnukad 31-3-98 izkFkhZx.k foi{kh;k ,l-Mh- jkthukek eq>s Lohdkj gSA Advocate for Applicants fu- vaxq"B ekaxhckbZ fu- vaxq"B deykckbZ ,l-Mh- ¼odhy foi{kh½ fu- vuq"B lqgkxhckbZ** 4. The said compromise was duly attested by the Presiding Officer, parties were also duly identified. 5. The learned trial court by the impugned order after narrating the various averments and contentions, noticed the filing of compromise, recorded a finding that by the said compromise the defendants cannot transfer the rights granted to them by way of Will to the wife of deceased Bheru Lal and after holding that in probate it is not legal to grant the appellant any share, went on to order grant of probate in favour of the respondents No. 1 and 2. 6. It would be seen that by the said compromise quoted above, all the three parties had agreed to share the amount of compensation 1/3 each. 7. Feeling aggrieved by the order dated 17.4.1998, the appellant has approached this Court by way of the present appeal and the order impugned was stayed by this Court on 27.5.1998. No one has appeared before this Court on behalf of the respondents No. 1 and 2 and the interim order was, therefore, confirmed on 27.7.2005. 8. 7. Feeling aggrieved by the order dated 17.4.1998, the appellant has approached this Court by way of the present appeal and the order impugned was stayed by this Court on 27.5.1998. No one has appeared before this Court on behalf of the respondents No. 1 and 2 and the interim order was, therefore, confirmed on 27.7.2005. 8. It is noticed that the appeal has been valued by the appellant at Rs. 2,30,965/- i.e. 1/3 of the amount of award and the ground (A) also relates to the failure of the trial court to pass decree in terms of the compromise. Even when the office of this Court raised objection regarding payment of court fees, again submissions were made regarding the compromise entered into between the parties being valid and the fact of entering into compromise for 1/3 share was also reemphasized. 9. It was contended by the learned counsel for the appellant that the learned trial court has wrongly refused to pass decree in terms of the compromise, when admittedly application was filed under Order XXIII, Rule 3 CPC and the compromise was duly attested by the learned Presiding Officer and, therefore, there was no reason for the said court to refuse recording of the said compromise. In alternative, it was submitted that if the court was not inclined to accept the said compromise, then it should have recorded the finding on all the issues which were framed in the case, inasmuch as, no finding has been recorded on the appellant's plea of maintenance. Ultimately, it was prayed that either decree be ordered to be passed in terms of the compromise and if legally the same is not permissible, then the trial court be directed to decide all the issues. 10. As noticed above, the respondents No. 1 and 2 are not present despite service of notice. 11. I have considered the submissions made by the learned counsel for the appellant. 12. 10. As noticed above, the respondents No. 1 and 2 are not present despite service of notice. 11. I have considered the submissions made by the learned counsel for the appellant. 12. The trial court has noticed the fact that the parties had entered in to a compromise and an application under Order XXIII, Rule 3 CPC was filed by them, which was duly attested by the Presiding Officer, however, while deciding the proceedings without elaborately discussing and/or recording any specific reason, it has observed that `to give a share to the appellant Kamla Bai in probate is not legal' and went on to grant probate to the respondents No. 1 and 2. 13. The application for grant of probate was filed under Section 276 of the Act and Section 266 of the Act deals with the powers of a District Judge to grant probate, which reads as under:- "Sec. 266. District Judge's powers as to grant of probate and administration.-The District Judge shall have the like powers and authority in relation to the granting of probate and letters of admini-stration, and all matters connected therewith, as are by law vested in him in relation to any civil suit or proceeding pending in his Court." 14. The above provision clearly stipulates that the court shall have powers as are by law vested in it in relation to any civil suit or proceeding pending in his court. 15. Provision of Section 141 CPC needs to be noticed at this stage, which reads as under:- "Sec. 141. Miscellaneous proceedings.- The procedure provided in this Code in regard to suit shall be followed, as far as it can be made applicable, in all proceedings in any Court of civil jurisdiction." 16. From the said provision, it would be seen that the procedure provided in the court shall be followed as far as it could be made applicable in all proceedings in any court of civil jurisdiction. Therefore, it can safely be said that provisions of the CPC are applicable to probate proceedings as well. 17. Provisions of Order XXIII, Rule 3 CPC, which deals with compromise of a suit in so far as the same is relevant, reads as under:- "3. Therefore, it can safely be said that provisions of the CPC are applicable to probate proceedings as well. 17. Provisions of Order XXIII, Rule 3 CPC, which deals with compromise of a suit in so far as the same is relevant, reads as under:- "3. Compromise of suit.-Where it is proved to the satisfaction of the Court that a suit has been adjusted wholly or in part by any lawful agreement or compromise (in writing and signed by the parties), or where the defendant satisfies the plaintiff in respect of the whole or any part of the subject-matter of the suit, the Court shall order such agreement, compromise or satisfaction to be recorded, and shall pass a decree in accordance therewith (so far as it relates to the parties to the suit, whether or not the subject-matter of the agreement, com-promise or satisfaction is the same as the subject-matter of the suit)." 18. The above provision stipulates that the court shall order compromise to be recorded and shall pass a decree in accordance with the compromise, even if the subject-matter of compromise is not the same as the subject-matter of the suit. The said provision enlarges the scope of a compromise and the same is not confined to only subject-matter of the suit. 19. The applicability of the provisions of the said Order XXIII, Rule 3 CPC has been considered by Delhi High Court in Execution Petition No. 206/2011 (Dr. N.P.S. Chawla vs. State & Ors.) decided on 25.11.2011, inter-alia holding as under:- "6. Order 23 Rule 3 of Code of Civil Procedure, to the extent it is relevant, provides that where it is proved to the satisfaction of the Court that a suit has been adjusted wholly or in part by way any lawful agreement or compromise in writing which is signed by the parties, the Court shall order such agreement or compromise to be recorded and pass a decree in terms of that compromise to the extent it relates to the parties to the suit, irrespective of whether the subject matter of the agreement or compromise is the same as the subject matter of the suit, or not. Admittedly, Shri H.P.S. Chawla was also a party to the petition filed by Dr. Chawla on 4th July, 1986. The petition was contested by Shri T.P.S. Chawla, though to a limited extent. Admittedly, Shri H.P.S. Chawla was also a party to the petition filed by Dr. Chawla on 4th July, 1986. The petition was contested by Shri T.P.S. Chawla, though to a limited extent. nevertheless, it is difficult to say that it was not a contested petition. In fact, Shri H.P.S. Chawla himself filed an appeal against the order passed by this Court since he was aggrieved on account of his not being made a Joint Executor along with Dr. N.P.S. Chawla despite the fact that both of them were appointed as Executors by late Smt. Ram Piari Chawla. It is therefore, difficult to deny that the provisions of Section 295 of Indian Succession Act also apply to the petition filed by Dr. N.P.S. Chawla. In my view, had the memo of compromise which was filed before the Supreme Court been filed in this Court, during the course of hearing of the petition seeking grant of probate, this Court would have been competent to record the compromise effected between the parties and to pass a decree in terms of that compromise. It would, in my view, be immaterial that the compromise was filed and got recorded in an appeal arising out of the probate proceedings. Since Section 266 of Indian Succession Act specifically provides that the District Judge shall have similar powers in relation to granting of probate as he has in relation to a Civil Suit, the power to record compromise and pass decree in terms thereof cannot be denied to such a Court. Consequently, the order passed by the Supreme Court on 15th July, 2010 cannot be said to be without jurisdiction or a nullity in law." 20. As already observed herein-before, the learned trial court has failed to record any reason muchless a cogent reason, for refusing to pass decree in terms of the compromise entered into amongst the parties to the proceedings despite filing of application under Order 23, Rule 3 CPC. There apparently, is no bar in entering into a compromise in probate proceedings and it is open for the parties in a contested probate proceedings to settle their dispute by way of compromise and provision of O. 23, R. 3 CPC would be entirely applicable. 21. In that view of the matter, the appeal is allowed. The judgment impugned passed by the learned trial court is set aside. 21. In that view of the matter, the appeal is allowed. The judgment impugned passed by the learned trial court is set aside. The application filed by the appellant and respondents No. 1 and 2 under Order XXIII, Rule 3 CPC dated 31.3.1998 filed on 7.4.1998 is allowed and the matter is remanded back to the trial Court i.e. Additional District Judge, Nimbahera for passing a decree in terms of the said compromise dated 31.3.1998 filed on 7.4.1998. The record of the trial court be sent back immediately. No costs.