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Chandra Madhav Mishra v/s Braj Kishore Mishra

    Civil Revn. 485 Of 2005

    Decided On, 05 April 2006

    At, High Court of Bihar

    By, THE HONOURABLE MR. JUSTICE NAVANITI PRASAD SINGH

    For the Appearing Parties: Sidheshwari Pd.Singh, Ratneshwar Prasad Singh, Advocates.



Judgment Text

(1.) The present revision application is directed against the order dated 28/2/2005 passed by learned Sub-Judge 6th, Patna in Title Partition Suit No. 262 of 2003 rejecting the petition dated 12/1/2005 filed by defendant Nos. 3 and 4 (Petitioners here). The petitioners filed an application before the trial Court for staying the proceedings in the Title Partition Suit till the decision of Test Suit No. 2 of 2004. This has been rejected giving rise to the present revision application.

(2.) The facts of this case are that one Akshaybat Mishra and his wife Laganmani Kuer had only one issue i.e. daughter Madalsa Devi. Madalsa Devi had three sons namely, Nawal Kishore Mishra (since dead), Nandkishore Mishra (defendant No. 2) and Braj Kishore Mishra (Plaintiff-opposite party). The said Nawal Kishore Mishra died leaving behind three sons who are defendant Nos. 2, 3 and 4 in the said suit. It is alleged that Akshaybat Mishra was the absolute owner of t

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he property which is the subject-matter of dispute and he had executed a Will allegedly along with his wife by which after the death of his wife the property was to devolve upon Nawal Kishore Mishra and thereafter to his heirs. It is alleged that the said Will was executed in the year 1936. The dispute presently as would appear is between the two branches of the grandson of the said Akshaybat Mishra. The dispute is between two "Natis". The Partition Suit No. 262 of 2003 was filed claiming that the property of Akshaybat Mishra should be devolved by way of inter se succession to his heirs. Soon after the said Title Suit was filed in the year 2003, a Probate case was filed before this Court under its original jurisdiction for grant of Letter of Administration on the basis of the Will of the said Akshaybat Mishra executed in 1926 (sic) while two proceedings were going on pursuant to Caveat filed in the probate proceedings before this Court. The probate case i.e. Testamentary Suit No. 6/93 was converted into Testamentary Suit No. 2 of 2004. In the Testamentary Suit an application was filed by the plaintiff of the Title Suit for staying the proceedings which was rightly rejected by order dated 12/1/2005 passed in Test Case No. 2/2004 held that the matter in the two proceedings are different. Then the present application was filed by the defendant in Title Suit for staying the title suit on the ground of pendency of Testamentary Suit. The same has come to be rejected which is order impugned.

3, Sri Sidheshwari Prasad Singh, learned counsel appearing for the defendant-petitioners has submitted that any finding given in the Testamentary suit would have material bearing on the partition suit because the entire property which is subject-matter of the Will is also the subject-matter of the partition suit and the partition suit should not be permitted to proceed ignoring the consequence of the Will to be probated. In support of his submission Sri Sidheshwari Prasad Singh relied principally on the observation made by the Apex Court in two cases reported in 2005 (12) SCC Page 503 and 2005 (12) SCC Page 505 the latter being a case coming from this State itself. Sri Singh has also relied on an unreported Division Bench Judgment of this Court in Civil Revision No. 200 of 1988, Smt. Surya Kumari Devi v. Sri Aminesh Ranjan and others, disposed of on 22/4/1992. This Court in the said case has taken a view that probate case should be disposed of first and so long as the probate case is not disposed of proceedings of the partition suit shall remain stayed.

4. On the other hand, on behalf of the plaintiff-opposite party reliance has been placed on a Division Bench judgment of this Court reported in 1999 (1) PLJR Page 655 : AIR 1999 Pat 103 {Smt. Tara Devi v. Smt. Kamla Gupta and others) wherein it was held that a proceeding instituted first in time cannot be stayed and if anything in terms of Section 10, C.P.C. which is only subsequent proceeding as between the parties that can be stayed. There also the case was of a prior partition suit and a subsequent probate case.

5. The question to determine is whether the trial Court committed an error of jurisdiction in rejecting the prayer for stay of the partition suit.

6. It is clear that the partition suit is as between the parties who are now parties in Testamentary Suit as well. The property in question is the same in both the proceedings but the title partition suit was instituted prior to the probate proceeding and title partition suit is pending before the Sub-Judge, Patna whereas the probate proceedings before the High Court.

7. It is well settled that in the probate proceedings the only thing that the Court does is declare upon the validity of the execution of Will in respect of the properties mentioned therein. It does not declare or decide upon the validity, legality disposition contained therein. For this purpose the jurisdiction of the High Court and the District Judge under the provision of the Succession Act are original and exclusive. No Civil Court can entertain any dispute with regard to validity or otherwise of a Will. Once a Will is probated and Letter of Administration is issued if there by any dispute as regard disposition made therein the parties can institute proceedings in Civil Courts without impugning the execution of the Will which has already been decided in the Probate Proceedings. It would thus be seen that the jurisdiction of two Courts even in the two proceedings are different and exclusive. In that view of the matter, it cannot be said that one Court can stay the proceeding pending decision of the other but as would presently show it also cannot be said that the decision given in the probate case would not have a material effect on the outcome of the partition suit. This Court in the case of Smt. Tara Devi (AIR 1999 Pat 103) (supra) has considered this aspect of the matter. This Court has also considered in the said judgment the aforesaid unreported order of this Court in Civil Revision No. 200 of 1988 disposed of on 22-4-1992 which as indicated above impugning the Division Bench order. In the case of Smt. Tara Devi this Court has held that application for stay of suit which was filed earlier in time cannot be entertained. Shri Singh, learned counsel appearing for the petitioner has submitted that in that case the application for stay was filed in terms of Section 10 read with Section 151, CPC. In my view, non-mentioning of the provision does not make any difference inasmuch as it is the principle that governs and the principle has been settled by a Division Bench of this Court in the case of Tara Devi (AIR 1999 Pat 103) (supra) by which I am bound. However, in all fairness to Mr. Singh, learned counsel appearing for the petitioner I must refer to the order of the Apex Court in the case of Nirmala Devi v. Arun Kumar Gupta and others, reported in 2005 (12) SCC Page 505 which case originates from Bihar and was quite similar to the present case also the Apex Court wished that the parties settled the dispute amicably which was the same in this case also (as per order dated 13-3-2006 in this case). There also the civil suit was instituted in 1987 and the probate proceedings in respect of Will of 1984 instituted in 1997. The only difference being that probate proceedings were instituted before the District Judge, Gopalganj whereas the title suit was before Sub-Judge 8, Gopalganj. The Apex Court clearly held that

"Be that as it may, the decision in the probate proceedings on the question of proof of the Will will have a direct impact on the suit."

8. The Supreme Court in view of the aforesaid fact requested the District Judge, Gopalganj to try the probate case and the Testamentary Suit which was transferred by them to him together. Insofar as the said order of the Supreme Court is concerned, it only shows that the probate proceedings will have a material effect on the suit but it Is no proposition that the subject-matter that either of the two proceedings should remain stayed pending decision in the other. That position has been settled and is binding on this Court sitting single. Similar is the position with regard to the other order of the Supreme Court in the case of 2005 (12) SCC page 503 (Balbir Singh Wasu v. Lakhbir Singh) is concerned where again the two proceedings were directed to be tried together. The last decision cited by Sri Singh is reported in 2004 (3) PLJR Page 255 (SC) : (AIR 2004 SC 3504). That case is not the authority for the proposition as referred to by Sri Singh. It only decides and re-affirms law that Section 10, C.P.C. is to prevent Court of concurrent jurisdiction from simultaneously trying two parallel suits in respect of same matter in issue. The decree passed in contravention of provision of Section 10 without staying the proceedings and waiting decision of an earlier instituted suit would not be a nullity.

10. In view of the decision as aforesaid I have no option but to hold that the learned trial Court did not commit any error of jurisdiction in rejecting the said application as filed by the petitioners and the application was rightly rejected. However, I am persuaded to observe that In view of observation of Apex Court in Nirmala Devi's case that the decision in probate case would have material effect on the suit. The parties are at liberty to take up an appropriate proceeding to protect their interest as advised to them. This revision application is, accordingly, dismissed but in the facts and circumstances of the case parties will bear their own costs.

Petition dismissed
O R