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2020 DIGILAW 374 (GAU)

Anjali Saha v. Gautom Saha

2020-03-12

ACHINTYA MALLA BUJOR BARUA

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JUDGMENT Achintya Malla Bujor Barua, J. - Heard Mr.C Goswami, learned counsel for the appellant and Mr. A Ahmed, learned counsel for the respondent. 2. The appellant herein instituted Misc.(Pro) Case No.39 of 2011 in the Court of learned District Judge, Mangaldai for grant of probate in respect of a Will of her deceased husband Indramohan Saha. The probate case instituted by the appellant was contested by the respondent who happens to be a son of the deceased through his first wife. An objection was raised by the respondent that the Will relied upon by the appellant is not genuine and that it was not executed by the deceased Indramohan Saha. By raising such issue, the respondent also filed a counter claim in his objection petition. In such circumstance, the learned District Judge, Mangaldoi passed the order, dated 10.04.2013 by which, a satisfaction was formed that there are sufficient materials to adjudicate the matter in order to arrive at a decision. Accordingly, the probate proceeding was converted to a suit and a direction was issued that a title suit be registered. Accordingly, by the same order, the proceeding was transferred to the court of learned Civil Judge, Darrang, Mangaldoi for being tried as suit by providing that the parties shall pay necessary court fee and shall appear before the learned Civil Judge on a given date. When the matter was taken up in the Court of the learned Civil Judge, the order of 26.04.2013 was passed. The learned Civil Judge arrived at his own conclusion that the Civil Judge did not have a jurisdiction for granting probate of the Will but in view of the order passed by the learned District Judge, the Civil Judge went through the probate petition and formed the view that no requisite particular was available in the plaint as required under Order VII Rule 1 of the Code of Civil Procedure (in short ''CPC''). A satisfaction was also arrived that the court fee required to be paid by the appellant was also not paid. Accordingly, the appellant was directed to take steps to convert the petition into title suit and also to pay necessary court fee. In the circumstance, by this appeal, the appellant primarily assails the order, dated 10.04.2013 of the learned District Judge. 3. Mr. Accordingly, the appellant was directed to take steps to convert the petition into title suit and also to pay necessary court fee. In the circumstance, by this appeal, the appellant primarily assails the order, dated 10.04.2013 of the learned District Judge. 3. Mr. C Goswami, learned counsel for the appellant raises a contention that merely because an objection had been raised by the respondent in the probate case that the Will in question is not a genuine Will, that by itself would not be sufficient to convert the probate proceeding to a title suit. Mr. Goswami refers to the provision of Section 9 of the CPC, which inter-alia provides that the Court shall try all suits of civil nature except such suits which are either expressly or impliedly barred. Accordingly, Mr. Goswami refer to the provisions of Sections -268, 269 and 290 of the Indian Succession Act to substantiate his submission that the said provisions of the Indian Succession Act impliedly bars the jurisdiction of the civil court for the purpose of adjudicating a probate proceeding. 4. Mr. A Ahmed, learned counsel for the respondent per contra submits that the provisions of Indian Succession Act neither expressly nor impliedly bar the jurisdiction of the civil court and in such view of the matter, there is no infirmity in the order, dated 10.04.2013 of the learned District Judge. 5. In order to arrive as to what would constitute an implied bar of the civil court under Section 9 of the CPC, we rely upon the pronouncement of the Hon''ble Supreme Court rendered in the case of Mafatlal Industries Ltd. v. Union of India, (1997) 5 SCC 536 , wherein in paragraph-23, it had been held as under: wxyz "23.********Because the Act creates new rights and liabilities and also provides the machinery for assessment and adjudication of those rights and liabilities, a bar to the jurisdiction to civil court arises by necessary implication an aspect dealt with at some length later." zyxw 6. Further, the Hon''ble Supreme Court in its judgment rendered in the case of Kamala Mills Ltd. vs- State of Bombay, (1965) AIR SC 1942 in paragraph Nos. Further, the Hon''ble Supreme Court in its judgment rendered in the case of Kamala Mills Ltd. vs- State of Bombay, (1965) AIR SC 1942 in paragraph Nos. 30 and 32, had held as follows: wxyz "30.*************In every case, the question about the exclusion of the jurisdiction of civil courts either expressly or by necessary implication must be considered in the light of the words used in the statutory provision on which the plea is rested, the scheme of the relevant provisions, their object and their purpose." ***************** **** zyxw wxyz "32.*****Whenever it is urged before a civil court that its jurisdiction is excluded either expressly or by necessary implication to entertain claims of a civil nature, the Court naturally feels inclined to consider whether the remedy afforded by an alternative provision prescribed by a special statute is sufficient or adequate. In cases where the exclusion of the civil courts'' jurisdiction is expressly provided for, the consideration as to the scheme of the statute in question and the adequacy or the sufficiency of the remedies provided for by it may be relevant but cannot be decisive. But where exclusion is pleaded as a matter of necessary implication, such considerations would be very important, and in conceivable circumstances, might even become decisive. If it appears that a statute creates a special right or a liability and provides for the determination of the right and liability to be dealt with by tribunals specially constituted in that behalf, and it further lays down that all questions about the said right and liability shall be determined by the tribunal-, so constituted, it becomes pertinent to enquire whether remedies normally associated with actions in civil courts are prescribed by the said statute or not." zyxw 7. From the pronouncements of the Supreme Court in Mafatlal Industries Ltd.(supra) and Kamala Mills Ltd.(supra), it is discernible that one of the relevant question would be whether the remedy provided in an alternative provision prescribed by a special statute is sufficient and adequate to decide the issue at hand. If accordingly, it is to be understood that the remedy of the alternative provision in special statute is by itself is adequate to decide the dispute raised therein, it would have to be construed that there is an implied bar on the civil court under Section 9 of the CPC to assume jurisdiction in such matter. If accordingly, it is to be understood that the remedy of the alternative provision in special statute is by itself is adequate to decide the dispute raised therein, it would have to be construed that there is an implied bar on the civil court under Section 9 of the CPC to assume jurisdiction in such matter. From the said point of view, we now examine the provisions of Sections 266 to 270 and 295 of the Indian Succession Act, which are extracted herein below: wxyz "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 administration, and all matters connected therewith, as are by law vested in him in relation to any civil suit or proceeding pending in his Court. zyxw wxyz 267. District Judge may order person to produce testamentary papers.-(1) The District Judge may order any person to produce and bring into Court any paper or writing, being or purporting to be testamentary, which may be shown to be in the possession or under the control of such person. (2) If it is not shown that any such paper or writing is in the possession or under the control of such person, but there is reason to believe that he has the knowledge of any such paper or writing, the Court may direct such person to attend for the purpose of being examined respecting the same. (3) Such person shall be bound to answer truly such questions as may be put to him by the Court, and, if so ordered, to produce and bring in such paper or writing, and shall be subject to the like punishment under the Indian Penal Code, in case of default in not attending or in not answering such questions or not bringing in such paper or writing, as he would have been subject to in case he had been a party to a suit and had made such default. (4) The costs of the proceeding shall be in the discretion of the Judge. zyxw wxyz 268. (4) The costs of the proceeding shall be in the discretion of the Judge. zyxw wxyz 268. Proceedings of District Judge''s Court in relation to probate and administration.-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. (5 of 1908.) zyxw wxyz 269. When and how District Judge to interfere for protection of property.-(1) Until probate is granted of the Will of a deceased person, or an administrator of his estate is constituted, the District Judge, within whose jurisdiction any part of the property of the deceased person is situate, is authorised and required to interfere for the protection of such property at the instance of any person claiming to be interested therein, and in all other cases where the Judge considers that the property incurs any risk of loss or damage; and for that purpose, if he thinks fit, to appoint an officer to take and keep possession of the property. (2) This section shall not apply when the deceased is a Hindu, Muhammadan, Buddhist, Sikh or Jaina or an exempted person, nor shall it apply to any part of the property of an Indian Christian who has died intestate. zyxw wxyz 270. When probate or administration may be granted by District Judge.-Probate of the Will or letters of administration to the estate of a deceased person may be granted by a District Judge under the seal of his Court, if it appears by a petition, verified as hereinafter provided, of the person applying for the same that the testator or intestate, as the case may be, at the time of his decease had a fixed place of abode, or any property, moveable or immoveable, within the jurisdiction of the Judge. * * * * * * * * * * * * * * * * zyxw wxyz 295. * * * * * * * * * * * * * * * * zyxw wxyz 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." zyxw 8. Section 266 provides that the District Judge shall have the power and authority in relation to grant of probate or letters of administration and all matters connected therewith. Section 270 provides that the probate of Will or letters of administration of the deceased person may be granted by the District Judge under the seal of his court if it appears by a petition, verified as provided therein, of the person applying for the same. Section 295 on the other hand provides that in any case before the District Judge in which there is contention, the proceeding shall take, as nearly as may be the form of regular suit, according to the provisions of the CPC, in which the petitioner for probate or letters of administration as the case may be shall be plaintiff and the person who has appeared to oppose the grant shall be the defendant. Section 266 makes it implicit that not only the issue of grant of probate or Will would be the jurisdiction of the District Judge, but all other matters connected there with would also be within such jurisdiction. Section 295 makes it even more clear that if there is a contention in probate proceeding, the same would take the form of a regular suit, according to the provisions of the CPC, where the petitioner for probate or letters of administration shall be plaintiff and the person who has appeared to oppose the grant shall be the defendant, meaning thereby that the District Judge would himself try the issue of genuinity of the Will in the manner or in nature of that of a suit and thereafter decide the matter as regards the grant of probate. A conjoint reading of Sections 266, 270 and 295 of the Indian Succession Act therefore leads us to a conclusion that the remedy afforded by the alternative provision of the Indian Succession Act which is a special statute for the purpose is sufficient and adequate to determine the objection raised by the respondent as regard the genuinenity of the Will on the ground that it was not executed by the deceased Indramohan Saha. 9. In view of above, we interfere with the order, dated 10.04.2013 of the learned District Judge in Misc.(Pro) Case No.39 of 2011 and as a consequence thereof also interfere with the order, dated 26.04.2013 of the learned Civil Judge, Darrang, Mangaldai in the proceeding conducted by him upon the matter being transferred. The matter now stands remanded back to the learned District Judge for proper jurisdiction on the grant of probate of the Will of late Indramohan Saha as claimed by the appellants and in doing so, consideration would be given to the respondents contention that the Will relied upon by the appellant is not genuine and that it was not executed by the deceased Indramohan Saha . 10. The District Judge shall issue notice to the parties for their appearance. 11. The appeal stands disposed of.