Saroj Kumar vs Manish Kumar And Ors
2023 Latest Caselaw 1174 Patna

         IN THE HIGH COURT OF JUDICATURE AT PATNA
           CIVIL MISCELLANEOUS JURISDICTION No.1228 of 2018
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Saroj Kumar, Son of Late Sri Krit Narayan Singh, Resident of Village- Chinia Bela, P.S.- Punpun, P.O.- Punpun, District- Patna.

... ... Petitioner/s Versus

1. Manish Kumar, Son of Late Shyam Narayan Singh.

2. Miss. Bibha Kumari, Daughter of Late Syam Narayan Singh.

3. Miss Prity Kumari, Daughter of Late Shyam Narayan Singh.

4. Ranish Kumar, Son of Late Shyam Narayan Singh.

5. Smt. Shakuntala, Devi W/o Late Shyam Narayan Singh.

6. Smt. Meena Devi, W/o Sri Krit Narayan Singh.

7. Sri Arbind Kumar, Son of Sri Krit Narayan Singh.

8. Sri Krit Narayan Singh, Son of Late Sheonandan Singh.

9. Sri Jai Narayan Singh, Son of Sri Sheonandan Singh. All are resident of Village- Chinia Bela, P.O.- Punpun, P.S.- Punpun, District- Patna.

... ... Respondent/s ====================================================== Appearance :

     For the Petitioner/s   :      Mr. Saroj Kumar Upadhyay, Advocate
     For the Respondent/s   :      Mr.

====================================================== CORAM: HONOURABLE MR. JUSTICE SUNIL DUTTA MISHRA CAV JUDGMENT Date : 24-03-2023

Heard learned counsel for the petitioner.

2. No one is present on behalf of respondents despite

service of notice and given sufficient opportunities thus, I am

proceeding to dispose of this case.

3. The instant Civil Miscellaneous Application under

Article 227 of the Constitution of India is directed against the

order dated 16.05.2018 passed by learned Sub-Judge 13, Patna

in Title Suit No. 301 of 2005, whereby and whereunder the Patna High Court C.Misc. No.1228 of 2018 dt.24-03-2023

petition filed by the petitioner under Section 10 read with

Section 151 of Code of Civil Procedure seeking stay of a suit for

partition bearing Title Suit No. 301 of 2005 was dismissed.

4. Respondents No. 1 to 5 / plaintiffs filed suit for

partition being Title Suit No. 301 of 2005 which is pending in

the Court of learned Sub-Judge -13, Patna in which the

defendants appeared and filed their written statement denying

the assertions made in the plaint. The issues have been framed

in the suit and the trial commenced and some of the witnesses

have also been examined.

5. On 11.09.2015 the petitioner filed a petition for stay

of the proceeding of the said suit under Section 10 of the Code

of Civil Procedure read with Section 151 of Code of Civil

Procedure to stay the hearing of the suit till disposal of the L.A.

Case No. 73 of 2010 on the ground that in both proceedings

subject matter is same properties. The petitioner claimed that

suit property involved in Title Suit No. 301 of 2005 is also

subject matter of a Will dated 01.04.2005 executed by Sheo

Nandan Singh, in his favour and on the basis of the said Will,

petitioner filed letter of Administration Case No. 73 of 2010

which is pending in the Court of learned Additional District

Judge- IX, Patna. The said petition has been rejected by the Patna High Court C.Misc. No.1228 of 2018 dt.24-03-2023

learned trial Court vide the impugned order dated 16.05.2018.

6. Learned counsel for the petitioner submits that the

learned trial Court failed to appreciate that decree in probate /

Letter of Administration case is binding on the parties and

accordingly to avoid multiplicity of the suit, the proceeding of

title partition suit has to be stayed. Further it is stated that the

learned Court below wrongly held that probate case and

partition suit are filed for different purposes ignoring that

properties involved in both the proceedings are the same and the

decision in the testamentary proceeding on the question of

validity of Will shall have direct impact on the partition suit. He

has further submitted that the probate Court has exclusive

jurisdiction in the matters relating to legality of a Will. If the

partition suit proceeds independently and the plaintiff therein

succeed, there would be possibility of inconsistent findings by

two Courts, provided the petitioner succeed in the L.A.

proceeding.

7. Learned counsel for the petitioner has submitted

that in view of the well settled principles the suit for partition

can be clubbed together with a testamentary proceeding as the

decision in the testamentary proceeding on the question of

validity of the Will shall have direct impact on the partition suit.

Patna High Court C.Misc. No.1228 of 2018 dt.24-03-2023

He has referred and relied on the decision of the Hon'ble

Supreme Court in Shamita Singha and Another Versus

Rashmi Ahluwalia and Another (2020) 7 Supreme Court

Cases 152 wherein the Supreme Court transferred the suit filed

in Delhi High Court to Bombay High Court with direction that

the suit and testamentary petition be heard by the same Judge

and both the proceedings shall be heard simultaneously clubbing

them together, if necessary. After referring many judgments the

Hon'ble Apex Court in paragraph 10 observed that the

testamentary proceeding would have a direct bearing or impact

on the pending suit for partition.

8. At the time of argument, learned counsel for the

petitioner then confined his prayer that both the Partition Suit

and L. A. Case may be heard together, as the adjudication of the

issues involved in the probate case will have a direct impact

upon the suit. Learned counsel for the petitioner referred and

relied upon judgment of the Hon'ble Supreme Court in Nirmala

Devi Vs. Arun Kumar Gupta & Ors. reported in (2005) 12

SCC 505, Balbir Singh Wasu Vs. Lakhbir Singh & Ors.

reported in (2005) 12 SCC, 503 and the judgment dated

06.07.2009 of this Court in the case of Krishnapal Singh

Raghuvanshi & Ors. Vs. Ravindra Pratap Singh @ Ravind Patna High Court C.Misc. No.1228 of 2018 dt.24-03-2023

(C.R. No. 1628 of 2005) to demonstrate that in similar nature of

cases the probate case were directed to be clubbed alongwith the

title suit to be heard together.

9. Learned counsel for the petitioner further submits

that this Court in Smt. Pratibha Singh Vs. Sri Amit Kumar

Singh (Civil Writ Jurisdiction Case No. 9294 of 2015) vide

Judgment dated 06.12.2018 consolidated the eviction suit and

partition suit pending before the Court below for trial and

disposal.

10. The judgment in the Case of Kanwarjit Singh

Dhillon Vs. Hardayal Singh Dhillon (2007) 11 SCC 357 is an

authority on the point that probate Court is not competent to

determine the question of title of the properties forming subject

matter of a Will. The Hon'ble Supreme Court has laid down in

Chiranjilal Shrilal Goneka Vs. Jagjit Singh (1993) 2 SCC

507 the primacy of the probate Court on the question of validity

of a Will.

11. The scope of proceedings in a partition suit are

broader than that in a probate petition. The nature of probate

proceedings is the judgment in rem. The nature of the

proceedings i.e. the probate proceedings and partition suit are

completely different. Probate proceedings are expected to be Patna High Court C.Misc. No.1228 of 2018 dt.24-03-2023

summary in nature whereas in a partition suit detailed evidence

is led by the parties concerned. A probate petition, strictly

speaking, cannot be considered to be a suit under Section 10

CPC and both the probate petition and the suit for partition can

proceed. Section 213 (1) of the Succession Act provides that no

right as executor or legatee can be established in any Court

unless a Court of competent jurisdiction in India has granted

probate of the Will under which the right is claimed or has

granted letter of administration with the Will.

12. In Amrita Vs. Rakesh Kumar (Civil Writ

Jurisdiction Case No. 6832 of 2013) decided on 11th February,

2016 this Court observed that nature of both the matters is quite

different. In the probate case the genuineness of the Will is to be

examined whereas in partition suit the unity of Title and

possession of both the parties are to be gone into. The

proceedings in a partition suit and the probate proceeding are

distinct. Proceeding in title suit cannot be stayed which are

plenary in nature whereas the probate proceeding are summary

in nature to be granted by a Court of limited jurisdiction.

13. This Court in the Judgment of Smt. Pratibha

Singh Vs. Sri Amit Kumar Singh (supra) relied upon and

quoted the observation of the Hon'ble Apex Court in the case of Patna High Court C.Misc. No.1228 of 2018 dt.24-03-2023

M/s Chitivalasa Jute Mills Vs. M/s Jaypee Rewa Cement

reported in AIR 2004 SC 1687 which are as follows:

" The two suits ought not to be tried separately. Once the suit at Rewa has reached the Court at Vishakhapatnam, the two suits shall be consolidated for the purpose of trial and decision. The trial Court may frame consolidated issues. The Code of Civil Procedure does not specifically speaks of consolidation of suits but the same can be done under the inherent powers of the Court flowing from Section 151 of the C.P.C. Unless specifically prohibited, the Civil Court has inherent power to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court. Consolidation of suits is ordered for meeting the ends of justice as it saves the parties from multiplicity of proceedings, delay and expenses. Complete or even substantial and sufficient similarity of the issues arising for decision in two suits enables the two suits being consolidated for trial and decision. The parties are relieved of the need of adducing the same or similar documentary and oral evidence twice over in the two suits at two different trials."

14. In Matia Devi Vs. Smt. Masani Devi & Ors.

reported in 1991 (2) PLJR, 403 this Court held that in a probate

proceeding, the question of title of the parties cannot be gone

into. Thus, the scope of two cases are different and the further

proceeding of title Suit cannot be stayed.

15. If the letters of administration are granted to the

petitioner in the testamentary proceeding, then the asset of

deceased may not remain available as partible estate of the

deceased. If the partition suit proceeds independently and the Patna High Court C.Misc. No.1228 of 2018 dt.24-03-2023

plaintiffs therein succeed, then there would be possibility of

inconsistent finding by two Courts provided the petitioner

succeed in the testamentary proceeding. In situation of this

nature the Hon'ble Supreme Court in Balbir Singh Wasu

Versus Lakhbir Singh and Others (2005) 12 SCC 503,

Nirmala Devi Versus Arun Kumar Gupta and Others (2005)

12 SCC 505 and Chitivalasa Jute Mills Versus Jaypee Rewa

Cement (2004) 3 SCC 85 has directed clubbing together of

both proceedings for hearing.

16. In Krishna Pal Singh & Ors. Vs. Ravindra

Pratap Singh @ Rabindra Pd. Singh reported in (2010) 1

BBCJ 278 this Court held that proceeding of the partition suit

cannot be stayed under Section 10 of the Code of Civil

Procedure during the pendency of the probate case.

17. In decision reported in AIR 2005 Supreme

Court 242, National Institute of Mental Health and Neuro

Sciences Vs. C. Parameshwara, it was held that the object of

Section 10 of CPC is to prevent Courts of concurrent

jurisdiction from simultaneously trying two parallel suits

between the same parties in respect of the same matter in issue.

The fundamental test to attract Section 10 is whether on final

decision being reached in the previous suit, such decision would Patna High Court C.Misc. No.1228 of 2018 dt.24-03-2023

operate as res judicata in the subsequent suit. Section 10 would

apply only if there is identity of the matter in issue in both the

suits, meaning thereby, that the whole of the subject matter in

both the proceedings is identical.

18. In view of the above, I am of the view that there

is no jurisdictional error committed by the Court below in

holding that the proceeding of the title suit cannot be stayed

under Section 10 of the CPC till the disposal of probate / Letter

of Administration case.

19. However, considering the facts and

circumstances of the Case and in view of the aforesaid

principles as set by Hon'ble Supreme Court and this Court, and

in the interest of justice the Partition Title No. 301 of 2005 and

L.A. Case No. 73 of 2010 between the parties ought to be heard

and adjudicated together in order to avoid multiplicity of

proceedings and conflicting findings / decisions.

20. Accordingly, the Title Suit No. 301 of 2005

pending on the file of the learned Sub-Judge 13 th, Patna shall

stand transferred to the Court of learned Additional District

Judge - IX, Patna and clubbed alongwith the L.A. Case No. 73

of 2010 and taken up together for disposal. Considering that the

title suit is of year 2005 and L.A. Case is of year 2010 the Patna High Court C.Misc. No.1228 of 2018 dt.24-03-2023

learned Court below shall take steps for its early disposal.

21. This Civil Miscellaneous application is,

accordingly, disposed of with the aforesaid observation and

direction.

(Sunil Dutta Mishra, J) saurabhkr/-

AFR/NAFR             AFR
CAV DATE             16.03.2023
Uploading Date       24.03.2023
Transmission Date