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Madhya Pradesh High Court · body

2018 DIGILAW 869 (MP)

Sarla Jaiswal v. Jaikishore Jaiswal

2018-10-10

SUJOY PAUL

body2018
ORDER 1. This petition filed under Article 227 of the Constitution takes exception to the order dated 30.1.2018 whereby the application of present petitioner preferred under Order 4 rules 1, 2 and 3 of Code of Civil Procedure dated 20.12.2017 was rejected by the Court below. 2. The admitted facts between the parties are that the respondent No. 1 preferred an application under section 276 of the Indian Succession Act, 1925 on 20.6.2011 (Annexure P-1). Upon receiving the information about filing of application pursuant to a paper publication, the petitioner entered appearance in the said case and filed his objection (AnnexureP-2). In addition, an application dated 30.10.2017 (Annexure P-3) was filed to convert the regular probate application into a regular civil suit. The respondent No. 1 filed its response to the said application. The Court below by order dated 25.11.2017 decided to convert the probate proceedings into a civil suit as mandated in section 295 of the Indian Succession Act. 3. The petitioner preferred an application under Order 4 rules 1, 2 and 3 CPC by contending that the probate proceedings stood converted as a regular civil suit. As per Order 4 rule 1 CPC, the suit commences from the date of filing of the plaint. The material facts and particulars, cause of action, jurisdiction and limitation etc. have not been described in the main application. Thus, for the reasons stated in the said application, the plaintiff be directed to comply with the requirement of said provisions failing which the civil suit may be rejected. After obtaining reply of the respondent No. 1, the Court below passed the order dated 30.1.2018 and rejected the said application preferred by the petitioner. 4. Shri Jaideep Sirpurkar, learned counsel for the petitioner submits that once the petitioner’s objections to the probate application are filed as per section 295 of the Indian Succession Act, 1925, the proceedings must be treated to be a civil suit and then procedure should be followed as per civil procedure code. The Court below has erred in not following the mandate of section 295 of the Indian Succession Act, 1925. 5. Per contra, Shri S.K. Tiwari, learned counsel for the respondent No. 1 submits that the impugned order is in consonance with law. The petitioner filed an application under Order 7 rule 11 CPC which has already been dismissed by the Court below on 25.11.2017. 5. Per contra, Shri S.K. Tiwari, learned counsel for the respondent No. 1 submits that the impugned order is in consonance with law. The petitioner filed an application under Order 7 rule 11 CPC which has already been dismissed by the Court below on 25.11.2017. The issues have already been framed. The petitioner has adopted dilatory tactics. Thus, this petition may be dismissed. 6. In the rejoinder submission, Shri Sirpurkar contended that the plaintiff must strengthen his pleadings by disclosing the cause of action, limitation, better particulars and all other information desired in the application (Annexure-P-6). In absence thereto, the evidence led by the plaintiff will be without there being any foundation/pleading. The present petitioner will also be deprived to understand the case of the plaintiff in its correct spirit and in further proceedings, he may be prevented to put forth his defence in an adequate manner in view of Order 2 rule 2 CPC. 7. No other point is pressed by learned counsel for the parties. 8. I have heard learned counsel for the parties and perused the record. 9. The pivotal question involving in this case is regarding effect of section 295 of Indian Succession Act, 1925. 10. The impugned order dated 30.1.2018 shows that the Court below opined that after receiving the objection by present petitioner against the probate application, the Court below has converted the proceedings and registered it as a civil suit. There is no necessity to apply Order 4 rules 1, 2 and 3 of CPC. Indeed, provisions of CPC can be made applicable as nearly as possible from the stage proceedings is converted into civil suit. It cannot be said that the proceedings should have been filed as a regular civil suit since inception. 11. The view taken by the Court below needs to be examined in the light of section 295 of the Act, which reads as under : “295. Procedure in contentious cases.—In any case before the District Judge in which there is contention, the proceedings shall take, as nearly as may be, the form of a regular suit, according to the provisions of the Code of Civil Procedure, 1908 (5 of 1908) in which the petitioner for probate or letters of administration, as the case may be, shall be the plaintiff, and the person who has appeared to oppose the grant shall be the defendant.” [Emphasis Supplied] 12. In AIR 1967 Orissa 41(6), [Mst. Puinbasi Majhiani v. Shiba Bhune] the Court followed the Full Bench decision of High Court of Allahabad and opined that the word “suit” ordinarily meant and apart from the context must be taken to mean a civil proceeding instituted by the plaint and so inspite of the provisions of section 295 of the Succession Act, the proceedings instituted under the Act should not be taken to mean a suit, nor could a decision given in the said proceedings be taken to be a decree. In AIR 2007 Bom 103 , [Thrity Sam Shroff v. Shiraz Byramji Anklesaria] the Bombay High Court considered the language employed in the said provision and opined that it nowhere states that proceedings for grant of probate would be a suit under the Code of Civil Procedure. The framers of law, on the contrary, have cautiously used the expression “take, as nearly as may be, the form of a regular suit according to the provision of Code of Civil Procedure”. After considering the Patna High Court’s judgment, reported in AIR 1994 Pat. 144 , [Sidhnath Bharti v. Jain Narayan], the Bombay High Court opined that the language of the section clearly show that the legislature never intended that the contentious proceedings should exactly be the same as the suit. In no uncertain terms, it was made clear that a petition for probate is not a plaint and at no stage becomes the plaint as understood in the manner laid down in the Civil Procedure Code and in any case cannot be treated as a suit by reason of the provisions of some other law. 13. In AIR 1984 Cal 16 , [Balai Lal Banerjee v. Debaki Kumar Ganguly] the Court opined that section 295 is merely for the purpose of classification. The provisions for the application of the Civil Procedure Code as far as may be is intended only to indicate the procedure to be followed in disposing of an application for grant of probate, or letters of Administration as the case may be. 14. In 1970 Mh.L.J. 324, [Manekji Manchersha Javeri v. Phiroze Boman Javeri], it was held that section 295 of Indian Succession Act enacts the proceedings then take, as nearly as may be, “the form of a regular suit”. 14. In 1970 Mh.L.J. 324, [Manekji Manchersha Javeri v. Phiroze Boman Javeri], it was held that section 295 of Indian Succession Act enacts the proceedings then take, as nearly as may be, “the form of a regular suit”. That does not actually make the proceedings a suit in the real sense of the term, and no question of the right of sue surviving on the death of the executor arises. In AIR 1994 Gujarat 42, [Smt. Multivahuji v. Smt. Kalindivahuji], the Court again considered the words employed in section 295 i.e., “as nearly as may be” and taken the same view which was taken by the Bombay High Court. The Kerala High Court in Fr. V.M. Skaria v. K.T. George, reported in AIR 1999 Kerala 320, took the similar view and came to hold that where probate proceedings became contentious, they are merely to assume the form of a regular suit though in reality they are not in the nature of a regular suit under the Civil Procedure Code. The apex Court in (1997) 9 SCC 689 , [Nalini Navin Bhagwati v. Chandravadan M. Mehta] made it clear that when probate or letter of administration was sought on the basis of a Will and there was a contentious issue in that behalf, the Court had to set it out in the form of a regular suit and the provisions of CPC would be applied in trying it as a suit. In (2003)10 SCC 361 , [Subal Paul v. Malina Paul], it was made clear that reading of section 295 clearly goes to show that although the contentious proceedings would not be treated as a regular suit or upon determination of issues raised therein a decree is not to follow the judgment but procedural provisions of the Code of Civil Procedure would be applicable. 15. This Court in 2006(3) MPLJ 61 , [June Aldons v. Theresa Brown] took the same view and held that proceedings before the probate Court may be akin to a suit of a civil nature, but in the strict sense of the word, it is not a suit deciding inter-parties right which has a binding effect between them and their successor. On the other hand, a probate Court does not decide any question of title except the genuineness of the Will and the competence of the executor of the Will. 16. On the other hand, a probate Court does not decide any question of title except the genuineness of the Will and the competence of the executor of the Will. 16. The judgment of Bombay High Court in Thrity Sam Shroff (supra), was again followed in AIR 2011 Bom 136, [Ramchandra Ganpatrao Hande v. Vithalrao Hande]. 17. If the impugned order is tested on the anvil of section 295 and the interpretation given by various Courts mentioned hereinabove, it will be clear that on registration of probate proceedings as a civil suit, it will not make it a civil suit in its strict sense. This is crystal clear in view of expression employed in section 295- “as nearly as may be, the form of a regular suit”. Thus, in the considered opinion of this Court, the Court below has taken a plausible view which is in consonance with the principles and law laid down in the aforesaid cases. The Court below has rightly rejected the application (Annexure P-6) whereby the petitioner intended to invoke provisions of CPC in a strict manner. Thus, impugned order does not suffer from any procedural impropriety, palpable perversity or jurisdictional error which warrants interference of this Court. Accordingly, petition fails and is hereby dismissed.