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2017 DIGILAW 539 (ORI)

Charulata Panda v. Upendra Kumar Mohapatra

2017-05-08

A.K.RATH

body2017
JUDGMENT : A.K. Rath, J. By this petition under Article 227 of the Constitution of India, challenge is made to the orders dated 30.4.2013 and 22.1.2016 passed by the learned 2nd Additional Civil Judge (Senior Division), Bhubaneswar in C.S.No.456 of 2012. By the said order, the learned trial court rejected the application of the petitioners for analogous hearing of C.S.No.456 of 2012 and C.S.No.1561 of 2010. 2. The petitioners as plaintiffs instituted C.S.No.1561 of 2010 in the court of the learned Civil Judge (Sr. Division), Bhubaneswar for partition impleading the opposite parties as defendants. Opposite parties 1 and 2 filed an application under Section 276 of the Indian Succession Act for grant of probate of the Will said to have been executed by late Abhimanyu Mohapatra impleading the petitioners and opposite parties 3 to 5 as opposite parties. When the matter became contentious, the learned District Judge transferred the case to the court of the learned 2nd Additional Civil Judge (Senior Division), Bhubaneswar, whereafter the case has been renumbered as C.S.No.456 of 2012. While the matter stood thus, the petitioners filed an application for analogous hearing of the probate case as well as the suit. By a reasoned order dated 30.4.2013, the learned trial court rejected the same. Again another petition was filed. The same was also dismissed by the learned trial court on 22.1.2016. 3. Heard Mr. Roy, learned Advocate for the petitioners and Mr. Pattnaik, learned Advocate for the opposite parties 1 and 2. 4. The question does arise whether both the cases can be tried simultaneously or whether the suit for partition shall remain stayed till disposal of the probate proceeding ? 5. The subject matter of dispute is no more res integra. 6. In Ashok Kumar Ray Vrs. Smt. Reba Biswas and others, 2017 (1) ILR CUT 93, this Court held thus: “7. Before proceeding further, it is apt to refer to the decision of this Court in the case of Jagojoti Bose and another v. Baruruchi Bose and others, AIR 1970 Ori 28 . In Jagojoti Bose (supra), the disputed property belongs to one Haricharan Bose. He had three sons. On 10.10.1946, he executed a Will in respect of the disputed property in favour of defendant nos.4 and 5. Thus he divested the plaintiff-another son from inheritance under the Will. On 30.10.1958, the plaintiff instituted a suit for partition claiming 1/3rd interest. In Jagojoti Bose (supra), the disputed property belongs to one Haricharan Bose. He had three sons. On 10.10.1946, he executed a Will in respect of the disputed property in favour of defendant nos.4 and 5. Thus he divested the plaintiff-another son from inheritance under the Will. On 30.10.1958, the plaintiff instituted a suit for partition claiming 1/3rd interest. Defendants 4 and 5 filed written statement claiming the entire property to themselves on the strength of the Will. On 12.9.1960, defendants 4 and 5 filed an application for Probate of Will in the court of the learned District Judge, Cuttack. On 28.6.1961, a preliminary decree for partition was passed in favour of the plaintiff. On 28.11.1962, Probate of Will was granted after contest by the plaintiff. On 10.7.1964, the plaintiff filed an application for making final the preliminary decree for partition. Defendants 4 and 5 filed an objection to the same contending, inter alia, that the plaintiff had no title in the disputed property after probate was granted. The contention was negatived by the trial court. The same was challenged before this Court. This Court held that by preliminary decree the jural relationship amongst the parties inter se was finally decided and it was declared that the plaintiff had a one third interest in the disputed property. If the Probate of Will is allowed to vary the rights, a conclusion must be reached to the effect that the plaintiff is not entitled to the property. This would affect the very basis of the preliminary decree and the rights carved out. The juristic theory underlying the reason why this cannot be done is that defendants 4 and 5 could have pressed into service the Probate if they had been vigilant in time. They had taken the defence under the Will in the written statement. Thus their claim on the strength of the Will and the Probate subsequent to the preliminary decree is barred by the principle of res judicata, actual and constructive. It was open to the defendants 4 and 5 to get the partition suit stayed, proceed with the Probate proceeding pending in the court of the District Judge and, after obtaining the Probate, to set it up in defence in the partition suit. This was the only course available to them. When they failed to do so, they abandoned their right based on the Probate. This was the only course available to them. When they failed to do so, they abandoned their right based on the Probate. By the time the Probate was granted, the rights of the parties on the basis of inheritance had already been worked out and the stage of setting up the Probate in defence had passed off. (Emphasis laid) 8. In Nirmala Devi (supra), the question arose whether the probate proceeding could be clubbed with the suit. The apex Court held that in the probate proceedings on the question of proof of the Will will have a direct impact on the suit. Only on this short ground and without expressing any opinion on the merits of the controversy between the parties, the apex Court directed the learned District Judge to make it convenient to dispose of the probate proceeding as well as suit. The same view was reiterated in Balbir Singh Wasu v. Lakhbir Singh and others (2005) 12 SCC 503 . 9. Reverting to the facts of the case and keeping in view the aforesaid principles, this Court finds that the suit schedule property is the subject-matter of dispute in the partition suit as well as probate proceeding. The jural relationship amongst the parties inter se is finally decided in the preliminary decree. The decision in the probate proceeding on the question of proof of ‘Will’ will have a direct impact on the suit. The decision in the partition suit would also operate as res judicata in the probate proceeding. In such contingency, when both the proceedings are pending, the suit for partition shall remain stayed till disposal of probate proceeding.” 7. In view of the authoritative pronouncement of the apex Court in the case of Ashok Kumar Ray (supra), this Court is not inclined to interfere with the impugned orders. The further proceeding of C.S.No.1561 of 2010 shall remain stayed till disposal of the probate proceeding. The learned trial court shall conclude the hearing of C.S.No.456 of 2012 by end of December, 2017. The petiton is disposed of.