Madhya Pradesh High Court
Shrimati Gayatriraje Puar vs Shrimati Shailjaraje Puar on 9 October, 2023
Author: Vijay Kumar Shukla
1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE VIJAY KUMAR SHUKLA
ON THE 9 th OF OCTOBER, 2023
MISC. PETITION No. 5626 of 2023
BETWEEN:-
1. SHRIMATI GAYATRIRAJE PUAR W/O LATE SHRI
TUKOJI RAO PUAR, AGED ABOUT 56 YEARS, R/O
197 ANAND BHAVAN PALACE A.B. ROAD DEWAS
(MADHYA PRADESH)
2. SHRI VIKRAM SINGH PUAR S/O LATE SHRI
TUKOJI RAO PUAR, AGED ABOUT 31 YEARS, R/O
197 ANAND BHAVAN PALACE A.B. ROAD DEWAS
(MADHYA PRADESH)
3. KUMARI KANIKA RAJE PUAR D/O LATE SHRI
TUKOJI RAO PUAR, AGED ABOUT 24 YEARS, R/O
197 ANAND BHAVAN PALACE A.B. ROAD DEWAS
(MADHYA PRADESH)
.....PETITIONER
(SHRI VIJAY KUMAR ASUDANI, COUNSEL FOR THE PETITIONERS .
AND
1. SHRIMATI SHAILJARAJE PUAR W/O SHRI C.
NARAYANAN D/O LATE SHRI KRISHNAJI RAO
PUAR, AGED ABOUT 61 YEARS, R/O 496 AAVAS
PHAATA ALIBAGH DISTT. RAJGARH
MAHARASHTRA (MAHARASHTRA)
2. UTTARAJE PATANKAR W/O PRATAP SINGH
PATANKAR, AGED ABOUT 65 YEARS, 5, AMOL
HOSPITAL SGM COLLEGE VIDYANAGAR
COOPERATIVE HOUSING SOCIETY SAIDAPUR
SATARA MAHARASTHRA (MAHARASHTRA)
3. DEVIKA RAJE PHALKE W/O HEMANT PHALKE,
AGED ABOUT 59 YEARS, 570, SATYA SAI NAGAR
SCHEME NO. 114 PART 2 INDORE (MADHYA
PRADESH)
4. SHRI MAHARAJA TUKOJIRAO PUAR RELIGIOUS
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Signed by: MUKTA
CHANDRASHEKHAR KOUSHAL
Signing time: 10-10-2023
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2
AND CHARITABLE TRUST THROUGH ITS
TRUSTEE DEWAS (MADHYA PRADESH)
5. SHRI MAHARAJA KRISHNAJI RAO PUAR
RELIGIOUS AND CHARITABLE TRUST
THROUGBH ITS TRUSTEE DEWAS (MADHYA
PRADESH)
6. STATE OF MADHYA PRADESH THROUGH
COLLECTOR DEWAS (MADHYA PRADESH)
7. STATE OF MADHYA PRADESH THROUGH
COLLECTOR RATLAM (MADHYA PRADESH)
.....RESPONDENTS
(SHRI RAVINDRA SINGH CHHABRA - SENIOR COUNSEL WITH SHRI
MUDIT MAHESHWARI, COUNSEL FOR THE RESPONDENT NO.1. AND
(SHRI POURUSH RANKA - COUNSEL FOR RESPONDENT NO.2)
This petition coming on for admission this day, the court passed the
following:
ORDER
The present petition is filed under Article 227 of the Constitution of India
being aggrieved by the order dated 10.8.2023 passed by II ADJ, Dewas in RCS
No. 101A/2021 whereby the application filed by the petitioners under section 10
of Code of Civil Procedure (hereinafter referred to as CPC), 1908 has been
rejected.
2. Facts of the case are that the petitioner No.1 is widow of Late Shri
Tukoji Rao Puar who is daughter in law of late Shri Krishnaji Rao Puar.
Petitioner No.2 and 3 are son and daughter of late Shri Tukoji Rao Puar. The
respondent Nos.1 to 3 are daughters of Shri Krishnaji Rao Puar and sisters of
Late Shri Tukoji Rao Puar. It is stated that late Shri Krishnaji Rao Puar had
executed a will dated 6.6.1988 thereby bequeathing all his properties in favour
of his son late Shri Tukoji Rao Puar, husband of petitioner No.1. On the basis
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Signed by: MUKTA
CHANDRASHEKHAR KOUSHAL
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of said will, the petitioners filed an application for grant of probate/letter of
administration under section 276 and 278 of the Indian Succession Act, 1925
on 5.7.2018 before ADJ, Alot. The respondent Nos.1 to 3 filed reply to the
probate application challenging the probate on the ground that will dated
6.6.1988 is forged and fabricated document. The respondent No.1 filed a suit
for declaration, permanent injunction, mesne profits, possession and partition of
ancestral and self acquired properties of Late Shri Krishnaji Rao Puar on
11.8.2021 before the principal District Judge, Dewas. The petitioners have filed
an application under section 10 of CPC for stay of the previously instituted suit
on the ground that matter in issue is directly and substantially in issue in both
the suits and suit is between the same parties. It is argued that respondents have
already disputed the will in the probate proceedings and if the proceedings of
both the suits continues, then prejudice would be caused to the petitioners. It is
submitted that where the issue involved in both the cases are directly and
substantially the same and the parties are same, the proceedings of the trial of
previously instituted suit should be stayed in the light of provisions of section
10 of CPC. In support of his submission, he has placed reliance on the
following judgments :-
(i) P.V. Shethy Vs. B.S.Giridhar, (1982) 3 SCC 403
(iI) Padmabai Vs. Shaikh Shahadulla Shaikh Abdulla, (2010) 7
MHLJ 98
(iII) Balbir Singh Wasu Vs. Lakhbir Singh and ohers, (2005) 12
SCC 503
(iV) Manohar Lal Chopra Vs. Rai Bahadur Rao Raja Seth
Hiralal, AIR 1962 SC 527
(v) Maharashra Stae Co-operative Marketing Federation
Ltd.Vs. Indian bank, Bombay, 1996 (2) MHLJ 925
(vI) In the Goods of Lilian Singh, 194 ILR 194
(vII) C.L.Tandon Vs. prem pal Singh Rawal and ohers, AIr
1978 DEL 221
(vIII) in the matter of Arbitraion between the firm of Jail
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CHANDRASHEKHAR KOUSHAL
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Narain Babulal Vs. Firm of Naraindas Janimal, AIR 196 SIND
3. Per contra, learned Senior counsel for respondents submits that
respondent No.1 has filed a civil suit for declaration, permanent injunction,
mesne profits and partition of ancestral and self acquired properties of Late Shri
Krishnaji Rao Puar. He has further sought declaration that the Will dated
6.6.1988 is null and void. The reliefs claimed in the subsequent suit and in the
probate are different and the nature of probate proceedings are entirely distinct
from the suit filed by the respondents. It is also argued that probate application
is only in respect of two properties which are involved in the subsequent suit.
Apart from that all the parties are not same. In the suit filed by the respondents,
trust is also the party which is not party in the probate application. He submitted
that proceedings of probate does not decide the title between the parties and
therefore considering the nature of probate the trial court has rightly rejected the
application under section 10 of CPC. In support of his submission, he has
placed reliance on the judgment passed by the Apex Court in the cases of
Kanwarjit Singh Dhillon Vs. Hardayal Singh Dhillon and others, (2007)
11 SCC 357 and also the judgment passed by Bombay High Court in the case
o f Chandrashekhar Kashinath Patange Vs. Ramesh Kashinath Patange
and others, 2013 (3) MHLJ 669.
4. After hearing learned counsel for parties, the sole question is as to
whether the proceedings of probate and the suit filed by the respondents are of
similar nature or distinct proceedings, therefore the provision of section 10
CPC would not apply. Considering the aforesaid rival submissions, it is
apposite to refer the provisions of section 10 of CPC which is reproduced
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Signed by: MUKTA
CHANDRASHEKHAR KOUSHAL
Signing time: 10-10-2023
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below :
sec.10 Stay of suit - No Court shall proceed with the trial of any
suit in which the matter in issue is also directly and substantially in
issue in a previously instituted suit between the same parties, or
between parties under whom they or any of them claim litigating
under the same title where such suit is pending in the same or any
other Court in India having jurisdiction to grant the relief claimed, or
in any Court beyond the limits of India established or continued by
the Central Government having like jurisdiction or before the
Supreme Court."
5. From plain reading of the aforesaid provision, the language of Section
10 suggests that it is referable to a suit instituted in the Civil Court and it cannot
apply to proceedings of the other nature instituted under any other statute.
6. Upon perusal of the application for probate by the petitioners, it is
evident that petitioners have sought issuance of probate and letter of
administration on the basis of the will. The suit filed by the respondent No.1 is
for grant of declaration, permanent injunction, mesne profits, possession and
partition of ancestral and self acquired property of Late Shri Krishnaji Rao Puar
and relief has also been sought for declaration of will as null and void. The
judgment relied upon by the counsel for petitioners in the case of Jai Narayan
Babulal (supra) it was held that bar under section 10 of CPC applies even to the
Misc. proceedings provided in the court. The same view was expressed in the
case of Goods of Lilian Singh. The judgement relied on by the petitioners in the
case of P.V. Shetty does not deal with section 10 of the CPC. The judgment in
the case of Balbir Singh Wasu(supra), it was held that in the facts of the case
number of issues would overlap and therefore both the probate proceedings
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CHANDRASHEKHAR KOUSHAL
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and civil suit should be clubbed and heard together by the District Judge who
would be competent to hear and dispose of both the civil suit as well as the
probate proceedings. The said case also does not deal with stay of the suit on
the ground of pendency of probation case. The language of section 10 suggests
that it is referable to a suit instituted in the civil court and it cannot apply to the
proceedings of other nature instituted under any other statute. In this regard, a
reference may be made to the judgment passed by the Apex Court in the case
of National Institute of Mental Health and Neuro Sciences Vs. Parmeshwara,
AIR 2005 SC 242. In the case of Kanwarjeet Singh Dhillon(supra), it would be
apposite to refer relevant para No.12 of the said judgment, which is reproduced
below :
"What this Court held in that decision is that once a probate is
granted by a competent court, it would become conclusive of the
validity of the will itself, but, that cannot be decisive whether the
Probate Court would also decide the title of the testator in the suit
properties which, in our view, can only be decided by the civil court
on evidence. It is true that the probate of the will granted by the
competent Probate Court would be admitted into evidence that may
be taken into consideration by the civil court while deciding the suit
for title but grant of probate cannot be decisive for declaration of title
and injunction whether at all the testator had any title to the suit
properties or not."
The relevant para No.13 of the judgment in the case of
Chandrashekhar Kashinath Patange(supra) is reproduced as under :
13. Now coming to the proceedings for probate, the petitioner i.e.
the defendant No.1 in the suit claims that by the Will executed by his
father, the suit property has been bequeathed to him and his sister.
Therefore, insofar as the said probate proceedings are concerned,
the issue would be as regards the legality and validity of the Will in
question. The extent of the bequeath that could have been made by
the father of the petitioner also cannot be gone into the probate
proceedings. The plaintiff in the suit claims the relief on the basis of
his right which he claims in the 50% share of his mother in the suit
property. The plaintiff therefore virtually claims title of the property
to the extent of 50% of the share of his mother. Obviously in the
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Signed by: MUKTA
CHANDRASHEKHAR KOUSHAL
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probate proceedings the said aspect cannot be gone into. The
question therefore would be whether the scope of the two
proceedings are running parallel or are different. The answer is
obviously in the negative as in the suit the issue is about the plaintiff's
right to claim a share in the 50% share of his mother. In the suit
therefore that right would have to be adjudicated. The scope of the
suit is therefore distinct from the scope of the probate proceedings.
The probate proceedings would be the entitlement of the petitioner to
the probate of the Will of his father where the issue would be as
regards the legality and validity of the Will. In view thereof the
conditions which are mentioned in section 10 of the Code of Civil
Procedure cannot be said to have been satisfied."
7. In the case of National Institute of Mental Health and Neuro Sciences,
the Apex court held that section 10 CPC applies to suit instituted in civil court
and it cannot apply to proceedings of other nature instituted under any other
statute. Apart from that, it has been held in the cases of Kanwarjit Singh Dhillon
and Chandrashekhar Kashinath Patange (supra) that scope of the suit is
therefore distinct from the scope of the probate proceedings. The probate
proceedings would be the entitlement of the petitioner to the probate of the Will
of his father whereas the issue would be as regards the legality and validity of
the Will and further, when the scope of the two proceedings are different and
distinct, the suit sought to be stayed need not be stayed. Once a probate is
granted by a competent court, it would become conclusive of the validity of
will itself, but that cannot be decisive whether the probate Court would also
decide the title of the testator in the suit properties which can only be decided
by the civil court on evidence. The probate of the Will granted by the
competent probate court would be admitted into evidence that may be taken
into consideration by the civil court while deciding the civil suit for title but
grant of probate cannot be decisive for declaration and title and injunction
whether at all the testator had any title to the suit properties or not.
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Signed by: MUKTA
CHANDRASHEKHAR KOUSHAL
Signing time: 10-10-2023
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8. Apart from that the reliefs in the suit and the proceedings and the
parties are different, therefore, the court below has rightly rejected the
application under section 10 CPC. I do not find any illegality or perversity in the
impugned order warranting any interference under Article 227 of the
Constitution of India.
9. Even otherwise, it is settled law that jurisdiction under Article 227 of
the Constitution of India cannot be exercised to correct all errors of subordinate
Courts within its limitation. It can be exercised where the order is passed in
grave dereliction of duty and flagrant abuse of the fundamental principle of law
and justice. [See. Jai Singh and another vs. MCD, (2010) 9 SCC 385 and
Shalini Shetty vs. Rajendra S. Patil, (2010) 8 SCC 329].
10. Further, a Co-ordinate Bench of this Court in the case of Ashutosh
Dubey and another vs. Tilak Grih Nirman Sahakari Samiti Maryadit,
Bhopal and another, 2004 (2) MPHT 14 held that supervisory jurisdiction
under Article 227 of the Constitution of India is exercised for keeping the
subordinate courts within the bounds of their jurisdiction. When a subordinate
Court has assumed a jurisdiction which it does not have or has failed to
exercise jurisdiction which it does have or the jurisdiction though available is
being exercised by the Court in a manner not permitted by law and failure of
justice or grave injustice has occasioned thereby, the High Court may step in to
exercise its supervisory jurisdiction. Be it a writ of certiorari or the exercise of
supervisory jurisdiction, none is available to correct mere errors of fact or of
law unless the following requirements are satisfied - (i) the error is manifest and
apparent on the fact of the proceedings such as when it is based on clear
ignorance or utter disregard of the provisions of law; and (ii) a grave injustice or
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gross failure of justice has occasioned thereby.
Signed by: MUKTA
CHANDRASHEKHAR KOUSHAL
Signing time: 10-10-2023
17:40:22
11. In view of the aforesaid enunciation of law, the instant petition is
devoid of merit and is hereby dismissed. The order impugned in the present
writ petition passed by the Court below is upheld.
(VIJAY KUMAR SHUKLA)
JUDGE
MK
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Signed by: MUKTA
CHANDRASHEKHAR KOUSHAL
Signing time: 10-10-2023
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