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2016 DIGILAW 1106 (PAT)

In The Goods of Lt. Savitri Devi v. .

2016-08-19

BIRENDRA PRASAD VERMA

body2016
ORDER : 1. Heard the parties. 2. By the office note dated 15.12.2011, the office has raised the question of maintainability of the present Test Case No. 10 of 2011. 3. By an order dated 13.7.2012 it was directed that the question of maintainability of this test case raised by the office shall be decided after the parties appear. Accordingly, notices were issued to the near relatives by registered post by aforesaid order dated 13.7.2012. By an order dated 21.3.2013 passed by this Court, it was directed that special citation and general citation be issued and thereafter issue of maintainability be decided first before any other issue is taken up. 4. In the light of the aforesaid orders, special citations were issued to the near relatives and general citation was published in the news-papers. By an order dated 27.3.2014, I.A. No. 44 of 2013 filed on behalf of the petitioner under Section 5 of the Limitation Act was allowed and it was held that the applicant/petitioner is not required to file limitation application in view of the judgments of the Hon’ble Supreme Court in the cases of Kunvarjeet Singh Khandpur v. Kirandeep Kaur, (2008) 8 SCC 463 and Krishna Kumar Sharma v. Rajesh Kumar Sharma, 2009 (3) PLJR 80 (SC). By different other orders passed by this Court, special citations issued to the near relatives have been treated to have been validly served and, in fact, some of the near relatives have already entered appearance through their counsel. 5. In the aforesaid background, now, the matter has been listed under the heading “For Orders” for deciding the question of maintainability of the present test case. 6. The present test case was filed on 24.10.2011 under Section 276 of The Indian Succession Act, 1925 ( In short ‘Act, 1925’) for grant of probate with respect to the last will dated 23.5.1995 executed by late Savitri Devi wife of late Durga Nand Singh in which the petitioner Smt. Manjula Singh is the executor. Originally, this test case was filed by one Sreh Nandan Singh @ Sreh Raj, great grand-son of Late Savitri Devi, the testatrix, on the ground that a power of Attorney has been executed by the executor Smt. Manjula Singh in favour of the original applicant Sreh Nandan Singh @ Sreh Raj. Originally, this test case was filed by one Sreh Nandan Singh @ Sreh Raj, great grand-son of Late Savitri Devi, the testatrix, on the ground that a power of Attorney has been executed by the executor Smt. Manjula Singh in favour of the original applicant Sreh Nandan Singh @ Sreh Raj. However, by an order dated 19.10.2012, name of original applicant Sreh Nandan Singh was directed to be deleted and the name of Smt. Manjula Singh was directed to be recorded as the applicant/petitioner in the present test case. Power of attorney executed by Smt. Manjula Singh in favour of original applicant Sreh Nandan Singh was also directed to be returned to her. According to the case of the petitioner, the Will in question was executed by the testator Smt. Savitri Devi on 23.5.1995 and she died on 2.5.1996. 7. The learned Senior counsel, appearing on behalf of the applicant/petitioner, has fairly submitted that originally Test Case No. 2 of 1996 was filed on 4.7.1996 by the present petitioner and, in view of the objections raised and caveat filed by the near relatives, the aforesaid test case was converted into test suit in terms of Section 295 of the Act, 1925 giving rise to Test Suit No. 5 of 1997 before this Court and aforesaid test suit proceeded further. 8. It is not in dispute that aforesaid Test Suit No. 5 of 1997 was dismissed by this Court by an order dated 21.2.2003 for want of prosecution, as none had appeared on behalf of the plaintiff on the aforesaid date fixed. The petitioner filed M.J.C. No. 402 of 2003 seeking restoration of aforesaid Testamentary Suit No. 5 of 1997. However, prayer for restoration was rejected and aforesaid M.J.C. No. 402 of 2003 was dismissed by a Bench of this Court by an order dated 28.4.2003 on the ground that no cause, much less sufficient cause, has been shown for restoration of aforesaid test suit. The petitioner, being aggrieved by the aforesaid order, filed L.P.A. No. 906 of 2003, which was dismissed by a Division Bench of this Court by an order dated 18.12.2009. Thereafter, the petitioner filed Special Leave to Appeal (Civil) C.C. 14857 of 2011, but that was also dismissed on the ground of delay as well as on merits by an order dated 16.9.2011 by the Hon’ble Apex Court. Thereafter, the present test case was filed on 24.10.2011. Thereafter, the petitioner filed Special Leave to Appeal (Civil) C.C. 14857 of 2011, but that was also dismissed on the ground of delay as well as on merits by an order dated 16.9.2011 by the Hon’ble Apex Court. Thereafter, the present test case was filed on 24.10.2011. Hence, an objection has been raised by the office about maintainability of the present test case in view of the orders passed earlier, which have been referred to above. 9. The learned Senior counsel appearing on behalf of the petitioner submits that it is true that the test suit filed earlier on behalf of the petitioner was dismissed by a Bench of this Court by an order dated 21.2.2003 for want of prosecution and prayer for restoration was also rejected, which has been affirmed up to the Hon’ble Apex Court, but the earlier test suit was not decided on merits. Hence, according to him, present test case is maintainable and it is not hit by the provisions of Order 9 Rule 9 C.P.C. In support of his above contention, he has placed strong reliance on a Full Bench judgment of our own High Court in the case of Sushila Devi vs. Bishwanath Ram, 1992 (1) PLJR 495 . It is contended that in view of the principles laid down by the Full Bench of our own High Court, the objection raised by the office is not sustainable and present test case is maintainable. 10. The learned counsel appearing on behalf of the caveators and objectors have submitted that since the original test suit filed on behalf of the petitioner was earlier dismissed in default by an order dated 21.2.2003 and prayer for restoration was rejected and the aforesaid orders were not interfered with up to the Hon’ble Supreme Court, therefore, the present test case is not maintainable. However, they have not referred to any provisions of law and have not cited any judicial pronouncements in support of their contentions. 11. It is true that the proceedings of the Court relating to grant of probate and letters of administration are regulated, to an extent possible, by the provisions of The Code of Civil Procedure, 1908 in view of the provisions contained in Section 268 of the Act, 1925, but the provisions of C.P.C. are not applicable in its strictest sense. 11. It is true that the proceedings of the Court relating to grant of probate and letters of administration are regulated, to an extent possible, by the provisions of The Code of Civil Procedure, 1908 in view of the provisions contained in Section 268 of the Act, 1925, but the provisions of C.P.C. are not applicable in its strictest sense. The provisions of Order 9 Rule 9 C.P.C. are also not applicable with respect to probate case. It is well settled law that the probate court is required to decide genuineness and validity of a Will. The judgment in a probate proceeding is judgment in rem. Once the genuineness and validity of a will is determined by a court, propounder cannot be allowed to withdraw the application. In the Full Bench Judgment in the case of Sushila Devi vs. Bishwanath Ram (Supra), after considering the scheme and scope of Order 9 Rule 9 of C.P.C., the court came to a conclusion that aforesaid provision does not apply in a probate proceeding. It has further been held that if the probate case has been dismissed in default and there has been no adjudication of the genuineness or validity of the will, then there shall be no bar for filing a fresh application. For better appreciation, relevant portion of paragraph-8 and paragraph-13 of the judgment in the case of Sushila Devi vs. Bishwanath Ram (Supra) are reproduced herein below:- “8. ………………The judgment in a probate proceeding is judgment in rem. It cannot be disputed that once the genuineness and validity of a will is determined by a court, propounder cannot be allowed to withdraw the application. But before the determination, if an application is filed by the propounder of the will for allowing him to withdraw it or to abandon it and if the court refuses, is there any procedure which the propounder may be compelled to prosecute the proceeding? There may be cases where propounder after filing an application for permission to withdraw or abandon it does not press such application and does not also take any step in the probate proceeding. What the Court will do in such a situation? It cannot record a finding with regard to the genuineness and validity of the will without any evidence. It shall have no option but to dismiss the application for default. What the Court will do in such a situation? It cannot record a finding with regard to the genuineness and validity of the will without any evidence. It shall have no option but to dismiss the application for default. When a suit is dismissed for default, the provision of Order 9 Rule 9 of the Code will operate as a bar for the plaintiff from bringing a fresh suit in respect of the same cause of action. A Bench of this Court in Gorakh Ahir v. Jamuna Ahir, AIR 1943 Patna 281 following (1910) 12 Calcutta Law Journal 185, Ramani Devi v. Kumud Bandhu Mukherji held that as probate Court is required to adjudicate on the genuineness and legality of the will and as that was not done in the earlier case, Order 9 Rule 9 of the Code cannot be bar for filing a fresh application. I am of the opinion that as Order 9 Rule 9 of the Code puts an impediment to the right of the plaintiff, it shall not apply to probate proceeding. xx xx xx xx 13. I have already observed that a probate court cannot possibly proceed to determine the genuineness and validity of a will if the propounder in an uncontested case chooses not to proceed with the matter. He may not file an application for withdrawal. He may not file an application for permission to allow him to abandon the case. He may simply stop taking any step in the case. The only option that a court has in such a situation is to dismiss the case in default. In such a case, as there has been no adjudication of the genuineness or validity of the will, there shall be no bar for filing a fresh application.” 12. Now, coming to the present case, indisputably, earlier Testamentary Suit No. 5 of 1997 was not decided on merits. Genuineness and legality of the will in question was not adjudicated upon on the basis of the evidence produced by the parties, rather the aforesaid testamentary suit was dismissed in default. Hence, in the considered opinion of this Court, the present case is squarely covered by the principles enunciated by the Full Bench of our own High Court in the case of Sushila Devi vs. Bishwanath Ram (Supra). Hence, in the considered opinion of this Court, the present case is squarely covered by the principles enunciated by the Full Bench of our own High Court in the case of Sushila Devi vs. Bishwanath Ram (Supra). As noticed above, the learned counsel appearing on behalf of the objectors/caveators did not point out any other provisions of law contrary to the principles enunciated by the Full Bench of our own High Court. 13. In above view of the matter, this Court has no hesitation in holding that the present test case is maintainable. The objection raised by the office is hereby overruled. Now, the test case shall proceed further in accordance with law.