Sushil Kumar Gami v. Sunil Kumar Gami & Ors

3. Smt. Indu Mahaseth wife of Ram Narayan Mahaseth daughter of Rameshwar Prasad Gami, resident of Mohalla-Belwagnaj Near Light House Cinema, P.O.& P.S.-Laheria Sarai, District- Darbhanga. -- O.P.No.3- O.P. No.3.

4. Indira Mandal wife of Sri Jagernath Mandal Advocate and daughter of Late Rameshwar Prasad Gami, Resident of Near Phulwari of Jamuna Babu Mohalla + P.O.+ P.S.+ District- Begusarai. -- O.P.No.4-O.P.No.4.

5. Putul Arya wife of Dr. Ranjit Arya Daughter of Late Rameshwar Prasad, Gami Doctor’s Colony Patliputra Medical College and Hospital, P.O. + P.S. and District-Dhanbad. -- O.P.No.5- O.P.No.5. ------ For the petitioner : Mr. Alok Kumar Sinha, Advocate. For Opposite party no.1: Mr. Shivendra Kishore, Advocate. For Opposite Party no.2 to 5: None. -----

29.07.2009 Heard learned counsel for the petitioner and learned counsel for opposite party no.1.

2. This civil revision has been filed by the petitioner, who was opposite party no.1 in Probate Case No.22 of 2005, and is aggrieved by order dated 11.01.2008 passed in the said case by the learned District Judge, Darbhanga by which the revision petitioner was directed to deposit the monthly rental of Block No.2 of the - 2 - premises in dispute from the date of filing of the petition dated

16.11.2005 by the petitioner of the probate case, who is opposite party no.1 in the instant civil revision.

3. The aforesaid probate case was filed by opposite party no.1 of this civil revision for probate of the Will dated 15.09.2004 with respect to the aforesaid property executed by his father Rameshwar Prasad Gami, who had thereafter died on 27.09.2004. In the said probate case, revision petitioner, who was opposite party no.1 in the court below, filed a written statement with his counter claim on 04.08.2006. The opposite parties no.2 to 5 did not appear in the probate case.

4. There are certain facts which are admitted, i.e., there was a partition suit bearing P.S. No.15 of 1993 between the above mentioned Rameshwar Prasad Gami and his other co-sharers which was decreed and the property of the instant probate case was given to the share of the said Rameshwar Prasad Gami who had three sons, namely petitioner, opposite party no.1 and opposite party no.2 and had three daughters, namely opposite parties no.3 to 5. It is also admitted that the said Rameshwar Prasad Gami died on 27.09.2004.

5. The point in dispute in this case is that according to the revision peritioner, Rameshwar Prasad Gami executed a Will in his favour on 25.09.2004 and he did not execute any Will in favour of opposite party no.1 of the civil revision. On the other hand, the claim of opposite party no.1 of the civil revision was that Rameshwar Prasad Gami executed a Will in his favour on 15.09.2004 and he did - 3 - not execute any will in favour of the revision petitioner. Except these two Wills there is no other claim by any of the parties.

6. It is also an admitted fact that only opposite party no.1 to the civil revision filed Probate Case No.22 of 2005 for probate of the Will dated 15.09.2004, whereas the revision petitioner has not filed any probate case for probate of the Will dated 25.09.2004 and has only filed a written statement with counter claim on 04.08.2006 in Probate Case No.22 of 2005. However, for probate of a Will a probate case has to be filed under the provision of Indian Succession Act, 1925 and mere filing of a written statement with a counter claim in another probate case will not satisfy the requirement of law. In the said circumstances, the revision petitioner has to file a separate probate case for probate of his alleged Will dated 25.09.2004 and only thereafter his Will can have any value in the court of law. In the said circumstances as prayed for, the revision petitioner is given liberty to file a probate case before an appropriate court for probate of the Will dated 25.09.2004, which has to be considered in accordance with law.

7. So far the instant case is concerned, it is admitted fact that the property in question, namely Block No.2 of the subject matter of the probate case, is in possession of a tenant who is paying rent to the revision petitioner. Hence, in the aforesaid circumstances, opposite party no.1 of this civil revision filed an application dated

16.11.2005 in the learned court below for directing the revision petitioner to deposit the rent to which a rejoinder dated 07.01.2006 - 4 - was filed by the revision petitioner.

8. Since on the basis of admitted facts it was apparent that no probate case was filed by the revision petitioner for probate of the alleged Will in his favour and he was receiving the rent from the tenant, the learned court below vide the impugned order dated

11.01.2008 directed him to deposit in court the said monthly rent of the property in question which he had received and was receiving from the tenant, from the date of the filing of the said petition. This court does not find any illegality or jurisdictional error in the impugned order of the learned court below and, accordingly, this civil revision is dismissed.

9. However, it is quite apparent that the said probate case as well as the validity and genuineness of the alleged Will dated

15.09.2004 produced by opposite party no.1 of the revision petition has come under serious cloud due to the production of a subsequent Will dated 25.09.004 claimed to have been executed by the same testator and hence it has become necessary and desiderate for the learned court below to convert the probate case into a suit so that the matter may be decided finally in accordance with law.

10. Learned counsel for the petitioner has also stated that vide order dated 17.01.2009, the learned court below has deprived him from contesting the proceeding of the probate case due to non- deposit of the said rent in compliance of the order under challenge in this civil revision. The said order dated 17.01.2009 is not before this court and hence no order can be passed with respect thereto in this - 5 - civil revision and the petitioner will be at liberty to challenge the said order before an appropriate forum in accordance with law. Sunil (S. N. Hussain, J.)