DR. B.A. ANANTHRAM v. MRS. SHREYA RAJAT SRIVASTAVA, ADVS.,)

Sri. Arun Kumar.K, learned Senior counsel appearing the petitioner submits that one Smt.S.Neelaveni stated to have executed a Will dated

13.10.1983 in favour of the respondent and the said Smt.S.Neelaveni also executed a Will in favour of the HC-KAR - 3 - NC: 2026:KHC:45666 W.P. No.51191/2019 CNR: KAHC010487592019 petitioner No.1 on 25.02.1999. It is submitted that without arraying the petitioners or any of the legal heirs of deceased Smt.S.Neelaveni, the respondent obtained the order of probate, which was assailed before this Court. It is further submitted that the petitioners also sought the probate based on the Will executed in the favour of petitioner No.1 and this Court, by two separate orders relegated the proceedings to the District Court to consider the revocation of the probate granted in favour of the respondent as well as seeking probate by the petitioners. The petition filed by the petitioners seeking revocation of probate is numbered as P & SC No.15027/2006 and the petition filed by the petitioners seeking for probate was numbered as P & SC No.15045/2006 and later the said petition was converted into a suit in O.S.No.25127/2019 and both the petitions are clubbed and are being tried by the same Court. It is also submitted that the respondent filed O.S.No.2299/2004 seeking relief of permanent injunction against the petitioners and the HC-KAR - 4 - NC: 2026:KHC:45666 W.P. No.51191/2019 CNR: KAHC010487592019 injunction suit is based on the title i.e. the Will dated

13.10.1983 stated to have been executed by Smt.S.Neelaveni. It is contended that the petitioners filed an application under Section 24 of Code of Civil Procedure, 1908 (for short ‘the CPC’) to transfer O.S.No.2299/2004 to be tried with O.S.No.25127/2009 and also P & Sc No.15027/2006. However, the Trial Court rejected the said application under the impugned order. It is further contended that there cannot be any divergent views by two Courts where the petitioners are seeking revocation of probate granted in favour of the respondent and also seeking for grant of probate in their favour and the suit for injunction filed by the respondent is based on the Will on which probate is granted and revocation is sought. It is also contended that the scope of enquiry in both the proceedings may be different, however, there is a direct impact on both the proceedings if they are tried differently. In support of his contentions, he placed reliance on the following decisions: HC-KAR - 5 - NC: 2026:KHC:45666 W.P. No.51191/2019 CNR: KAHC010487592019 a) NIRMALA DEVI Vs. ARUN KUMAR GUPTA AND OTHERS1 b) H.P.SHOBHA Vs. K.G.HANUMANTHA RAJU AND OTHERS2 Hence, he seeks to allow the petition.

Per contra, Sri. Arjun Rego, learned counsel for the respondent supports the impugned order of the Trial Court and submits that the scope of enquiry in the grant of probate is limited to the extent of ascertaining the genuineness of the Will and the Court cannot look into the title of the executant or any other aspect. Hence, the proceedings pending for probate have nothing to do with the suit filed by the respondent for bare injunction. It is submitted that in a suit for injunction, the plaintiff is required to prove his possession and the correctness of the Will cannot be gone into. Hence, the proceedings in the suit for injunction cannot be transferred to the Court where the proceedings for probate are pending. It is 1 (2005) 12 SCC 505 2 2020 SCC Online Kar 4592 HC-KAR - 6 - NC: 2026:KHC:45666 W.P. No.51191/2019 CNR: KAHC010487592019 further submitted that the scope of enquiry in the two proceedings is distinct and cannot be tried by clubbing the same. The Trial Court has rightly appreciated the said aspects which do not call for any interference. In support of his contentions, he placed reliance on the following decisions: a) CHIRANJILAL SHRILAL GOENKA Vs. JASJIT SINGH AND OTHERS3 b) KULWINDER KAUR ALIAS KULWINDER GURUCHARAN SINGH Vs. KANDI FRIENDS EDUCATION TRUST AND OTHERS4 Hence, he seeks to dismiss the petition.