Nakul Bedia & Anr v. Union of India and
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P.(C) No. 3590 of 2018 1. Sri Krishna Ram Sahu aged about 48 years 2. Ashok Kumar Sahu aged about 43 years both sons of Sri Debi Dayal Sahu, Resident of village + P.O. + P.S. Argora, District- Ranchi … … Petitioners Versus 1. Estate of Deceased Dukhan Sahu S/O Late Adhin Sahu at village- P.O. & P.S. Argora, Police Station no. 207, and Village Pundag P.S. Jagarnathpur P.S. No. 228, District- Ranchi 2. All Villagers of village- Argora, P.S. Argora, P.S. No. 207, District- Ranchi 3. Devi Dayal Sahu 4. Laxman Sahu-both sons of Late Adhin Mahto @ Adhin Sahu, Resident of village – + P.O. + P.S. Argora, District- Ranchi. … … Respondents --- CORAM :HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY For the Petitioners For the Resp. No. 4
Legal Reasoning
judgement passed by this Court in CMP No. 324 of 2020 decided on 10.10.2022. He has referred to paragraph 11 and 12 of the said judgement. 8. After hearing the learned counsel for the parties and considering the facts and circumstances of this case, this Court finds 3 that on account of certain title dispute raised in the probate case, the probate case was converted into Probate Title Suit No. 04 of 2012. The same was done in consonance with the provisions of Section 295 of Indian Succession Act and Rule 458 of the Civil Court Rules. 9. However, by the impugned order dated 22.05.2018, the case itself has been transferred to Subordinate Judge –1, Ranchi for adjudication and needful and the entire case records has been transferred. Meaning thereby, the legality and validity of the Will would also be now decided by the Subordinate Judge –1, Ranchi who has no jurisdiction to decide the legality and validity of the WILL. This was done by referring to the judgement passed in the judgement of Nakul Bedia (supra) stating that it has been held by this court that dispute regarding title of property cannot be decided in the probate case. 10. This court finds that it is true that it has been held in the judgement of Nakul Bedia (supra) that dispute regarding title of property cannot be decided in the probate case but it has no where been held that in case the parties raise title dispute in the probate case , the same has to be transferred to the regular courts dealing with title suits for adjudication of the entire issue regarding probate of WILL as well as issue regarding title suit. In fact the Subordinate Judge –1, Ranchi, to whom the probate case has been transferred has no jurisdiction to decided the legality and validity of the WILL. The learned court below has misunderstood the true import of the judgement passed in the case of Nakul Bedia (Supra) . 11. In the judgement passed in the case of Nakul Bedia (Supra) , the Additional District Judge in the probate case had decided the title and possession of the property involved in the case . In the said background, it was held that the finding regarding title and possession of property in a probate case was wholly without jurisdiction and was nullity in the eyes of law. It was held that the learned single judge committed no wrong in referring the title dispute to civil court through competent authority under National Highway Authority Act, 1956 as the property was subject matter of acquisition. While deciding the aforesaid case, the Hon’ble Division Bench relied upon the law laid down by the Hon’ble Supreme Court in the case of Krishna Kumar 4 Birla versus Rajendra Singh Lodha reported in (2008) 4 SCC 300 , para 57, wherein it has been held that the jurisdiction of the probate court is limited , being confined only to consider the genuineness of the WILL and a question of title cannot be gone into in probate proceedings. The judgement passed in the case of Kanwarjit Singh Dhillon versus Hardayal Singh Dhillon reported in (2007) 11 SCC 357 on the same point was also considered. 12. Thus, the jurisdiction of the probate court is limited being confined only to consider the genuineness of the WILL and a question of title cannot be gone into in probate proceedings. Consequently, the learned court below ought to have retained the records and decided the genuineness of the WILL without going into title dispute. 13. The issue fell for consideration before this Court again in CMP No. 324 of 2020 wherein, by the impugned order, the Letter of Administration case was transferred to the court of Sub-Judge-III and renumbered as Original Suit. The short question in the said case was – “In case where the application for probate or letter of administration has been contested, the testamentary suit shall proceed in the Court of District Judge or in the Court having jurisdiction to hear the original title suit?” 14. The said issue was answered by the Hon’ble Single Judge in paragraph 11 and 12 and the order to transfer the original suit to the court of Sub-Judge –III for trial and disposal was set-aside with a direction that the case would proceed as per the provisions of Section 295 in the court of the District Judge. This Court finds that the point involved in the present case is squarely covered by the said judgement. Paragraph 11 and 12 of the said judgement are quoted as under: “11. The above provision only states that the proceeding before the District Judge in case of contention shall be followed like a regular suit and the applicant shall be treated as a plaintiff and the opposite party will be the defendant. This provision nowhere says that once the contention has been raised the probate or letter of administration application shall be converted into a title suit. It also does not say that the final outcome of the said title suit shall be in the form of a decree. The division bench of this court in 2022 1 JLJR 668, held that the contentious proceeding referred to under Section 295 of the Act of 1925 does not mean a suit filed under section 26 of the CPC. Thus, the probate proceeding on being contested is to proceed in the form of a suit, but that by itself does not transform the proceeding into a suit within the meaning of the civil procedure code. 5 12. The impugned order to transfer O.S. NO.5 of 2017 to the Court of Sub Judge-III, Ranchi for trial and disposal is not sustainable in of law and is accordingly set aside. The case will proceed as per the provision under section 295 in the court of the District Judge and the learned court below will dispose of the matter preferably within four months from the receipt of the order. This civil miscellaneous petition is accordingly allowed.” 15. In view of the aforesaid judicial pronouncements, the impugned order transferring the probate case to the learned Subordinate Judge – 1, Ranchi cannot be sustained in the eyes of law. Accordingly, the impugned order dated 22.05.2018 transferring the Probate Title Suit No. 04 of 2012 to the court of Subordinate Judge –1, Ranchi is hereby set-aside. 16. The case will proceed as per the provisions of Section 295 of Indian Succession Act in the court of Additional Judicial Commissioner-XVIII, Ranchi or any competent court empowered to deal with probate cases and the legality and validity of the WILL be
Arguments
--- : Mr. Dilip Kumar Prasad, Advocate : Mr. Amrendra Kumar, Advocate --- 08/30.06.2023 Learned counsel for the parties are present. 2. This writ petition has been filed for the following reliefs: “for setting aside the order dated 22.5.18; passed in Probate Title Suit no. 04/12; arising out of Probate case no. 86/11; by Sri Diwakar Pandey, A.J.C. XVIII, Ranchi where under the learned court remitted the matter before Sub Judge-I, Ranchi to adjudicate the issue no. II, relating to Title of parties in view of order passed in L.P.A. No. 352 of 2013 dated 03.05.2016 in case of Nakul Bedia-Versus- Union of India, in place of deciding the genuineness of Will in question and further direction to hear the Probate Title suit no. 04/12; C.C. of order dated 22.5.18 is made Annx-6” 3. Learned counsel for the petitioners has submitted that a probate case was filed before the learned Judicial Commissioner, Ranchi which was numbered as Probate Case No. 86 of 2011. The notices were issued to the parties and they contested the probate proceedings and on account of title dispute having been raised, the same was converted into a probate title suit no. 04 of 2012 in terms of Section 295 of Indian Succession Act and Rule 458 of the Civil Court Rules. The learned counsel submits that after having done so, the impugned order dated 22.05.2018 has been passed by referring to the judgement passed in the case of “Nakul Bedia & Anr. Vs. Union of India and 2 Others” in LPA No. 352 of 2013 decided on 03.05.2016 and it was observed that with respect to issue no. 2 , it was evident that factum of previous partition was required to be decided in order to adjudicate the probate case and consequently, the impugned order was passed considering the pecuniary value and the case was transmitted to Subordinate Judge –1, Ranchi for needful. Both the parties were directed to appear before the Subordinate Judge –1 and the records of the case along with all documents was also sent to Subordinate Judge- 1, Ranchi. 4. The learned counsel for the petitioners submits that the Subordinate Judge –1 has no jurisdiction to decide the probate case. The probate case has to be decided by the competent court and merely because it was converted into probate title suit no. 04 of 2012 on account of raising title suit, the entire matter could not have been transferred to Subordinate Judge –1, Ranchi. He submits that title suit, if any, is to be decided in an appropriate proceeding by a competent court and so far as the probate case is concerned, the legality and validity of the WILL is to be decided in terms of the provisions of the Indian Succession Act by the competent court before which it was pending. 5. Learned counsel appearing on behalf of the respondent no. 4, on the other hand, has submitted that as there is a title dispute and the factum of previous partition was required to be decided, therefore, the impugned order does not call for any interference. The learned counsel has also submitted that it was the petitioners themselves, who got the probate case converted into Probate Title Suit No. 04 of 2012. 6. In response, the learned counsel for the petitioners has submitted that the probate case was rightly converted into Probate Title Suit No. 04 of 2012, the same does not mean that the case is to be transferred to another court for adjudication to decide the title. 7. The learned counsel for the petitioners has also relied upon the
Decision
decided in accordance with law. The matter be disposed of preferably within 6 months from the receipt of the order. The parties to cooperate. 17. This writ petition is accordingly disposed of. 18. 19. Let this order be immediately communicated through FAX/e- Pending interlocutory application, if any, is closed. mail to the court of Subordinate Judge –1, Ranchi ; to the court of Additional Judicial Commissioner-XVIII, Ranchi and also to the Judicial Commissioner Ranchi . Pankaj (Anubha Rawat Choudhary, J.)