Tuesday, 20 June 2017

When partition suit is liable to be stayed pending decision in probate proceeding?

Reverting to the facts of the case and keeping in view
the aforesaid principles, this Court finds that the suit schedule
property is the subject-matter of dispute in the partition suit as
well as probate proceeding. The jural relationship amongst the
parties inter se is finally decided in the preliminary decree. The
decision in the probate proceeding on the question of proof of 
‘Will’ will have a direct impact on the suit. The decision in the
partition suit would also operate as res judicata in the probate
proceeding. In such contingency, when both the proceedings are
pending, the suit for partition shall remain stayed till disposal of
probate proceeding.
HIGH COURT OF ORISSA: CUTTACK
C.M.P. No.619 of 2015

Ashok Kumar Ray 
V
Smt.Reba Biswas and others 

PRESENT:
THE HON’BLE DR. JUSTICE A.K.RATH
Dated :04.01.2017.
Citation: AIR 2017 Orissa 48

DR.A.K.RATH, J. The instant petition is to laciniate the orders dated
15.1.2015 and 21.3.2015 passed by the learned Civil Judge
(Sr.Division), Puri in C.S.No.464 of 2008. By order dated
15.1.2015, the learned trial court vacated the order of stay
whereas, by order dated 21.3.2015, it held that partition suit
shall continue till the stage of carrying out of a preliminary
decree. 
2. The opposite parties 1 to 5 as plaintiffs instituted
C.S.No.464 of 2008 for partition of the properties left by common
ancestor Atul Krishna Roy in the court of the learned Civil Judge
(Sr.Division), Puri impleading the petitioner as well as proforma
opposite parties 6 and 7 as defendants. Pursuant to issuance of
summons, defendant no.1-petitioner entered appearance and
filed a written statement. During pendency of the suit, defendant
no.1 filed an application under Section 276 of the Indian
Succession Act before the learned District Judge, Puri for grant
of Pobate of Will said to have been executed by late Atul Krishna
Roy bequeathing the properties in his favour, which is registered
as Test Case No.7 of 2012. Thereafter defendant no.1 filed an
application to stay the further proceeding of the suit till disposal
of Test Case No.7 of 2012. The plaintiffs filed objection to the
same. The said application having been allowed, the plaintiffs
approached this Court in W.P.(C) No.22464 of 2013. A Bench of
this Court disposed of the said writ petition on 12.12.2014
directing the learned District Judge, Puri to dispose of Test Case
No.7 of 2012 within a period of six months and to proceed with
the suit for partition in accordance with law. On 15.1.2015, the
learned trial court vacated the order of stay. On 21.3.2015, the
learned trial court came to hold that fate of the suit depends on
the probate case, since position of the probate case is not known.
There is no reason to grant stay. It further held that the suit
shall continue till the stage of carrying out of a preliminary
decree. 
3. Heard Mr.Ashok Mohanty, learned Sr.Advocate for the
petitioner and Ms.Pratyusha Naidu, learned Advocate for the
opposite parties 1, 2, 4 and 5.
4. Mr.Mohanty, learned Sr.Advocate for the petitioner
submits that the properties involved in testamentary case and
the suit for partition is same. The fate of the suit depends upon
the Pobate of Will. In view of the same, further proceeding of the
suit may be stayed till disposal of the probate proceedings.
5. Per contra, Ms.Naidu, learned Advocate for the
opposite parties 1, 2, 4 and 5 submits that this Court in W.P.(C)
No.22464 of 2013 directed the learned District Judge, Puri to
dispose of Test Case No.7 of 2012 within a period of six months
and to proceed with the suit for partition in accordance with law.
In view of the same, the suit for partition may continue till
passing of final decree. She relies on a decision of the apex Court
in the case of Nirmala Devi Vrs. Arun Kumar Gupta and others
(2005) 12 SCC 505.
6. The sole question that hinges as to whether the suit
for partition shall remain stayed till disposal of the probate
proceeding.
7. Before proceeding further, it is apt to refer to the
decision of this Court in the case of Jagojoti Bose and another v.
Baruruchi Bose and others, AIR 1970 Orisa 28. In Jagojoti Bose
(supra), the disputed property belongs to one Haricharan Bose.
He had three sons. On 10.10.1946, he executed a Will in respect 4
of the disputed property in favour of defendant nos.4 and 5.
Thus he divested the plaintiff-another son from inheritance
under the Will. On 30.10.1958, the plaintiff instituted a suit for
partition claiming 1/3rd interest. Defendants 4 and 5 filed
written statement claiming the entire property to themselves on
the strength of the Will. On 12.9.1960, defendants 4 and 5 filed
an application for Probate of Will in the court of the learned
District Judge, Cuttack. On 28.6.1961, a preliminary decree for
partition was passed in favour of the plaintiff. On 28.11.1962,
Probate of Will was granted after contest by the plaintiff. On
10.7.1964, the plaintiff filed an application for making final the
preliminary decree for partition. Defendants 4 and 5 filed an
objection to the same contending, inter alia, that the plaintiff
had no title in the disputed property after probate was granted.
The contention was negatived by the trial court. The same was
challenged before this Court. This Court held that by preliminary
decree the jural relationship amongst the parties inter se was
finally decided and it was declared that the plaintiff had a one
third interest in the disputed property. If the Probate of Will is
allowed to vary the rights, a conclusion must be reached to the
effect that the plaintiff is not entitled to the property. This would
affect the very basis of the preliminary decree and the rights
carved out. The juristic theory underlying the reason why this
cannot be done is that defendants 4 and 5 could have pressed
into service the Probate if they had been vigilant in time. They
had taken the defence under the Will in the written statement.
Thus their claim on the strength of the Will and the Probate
subsequent to the preliminary decree is barred by the principle 
of res judicata, actual and constructive. It was open to the
defendants 4 and 5 to get the partition suit stayed, proceed with
the Probate proceeding pending in the court of the District Judge
and, after obtaining the Probate, to set it up in defence in the
partition suit. This was the only course available to them. When
they failed to do so, they abandoned their right based on the
Probate. By the time the Probate was granted, the rights of the
parties on the basis of inheritance had already been worked out
and the stage of setting up the Probate in defence had passed
off. (Emphasis laid)
 8. In Nirmala Devi (supra), the question arose whether
the probate proceeding could be clubbed with the suit. The apex
Court held that in the probate proceedings on the question of
proof of the Will will have a direct impact on the suit. Only on
this short ground and without expressing any opinion on the
merits of the controversy between the parties, the apex Court
directed the learned District Judge to make it convenient to
dispose of the probate proceeding as well as suit. The same view
was reiterated in Balbir Singh Wasu v. Lakhbir Singh and others
(2005) 12 SCC 503.
9. Reverting to the facts of the case and keeping in view
the aforesaid principles, this Court finds that the suit schedule
property is the subject-matter of dispute in the partition suit as
well as probate proceeding. The jural relationship amongst the
parties inter se is finally decided in the preliminary decree. The
decision in the probate proceeding on the question of proof of 
‘Will’ will have a direct impact on the suit. The decision in the
partition suit would also operate as res judicata in the probate
proceeding. In such contingency, when both the proceedings are
pending, the suit for partition shall remain stayed till disposal of
probate proceeding.
10. In the wake of aforesaid, the orders dated 15.1.2015
and 21.3.2015 passed by the learned Civil Judge (Sr.Division),
Puri are quashed. This Court directs that further proceedings of
C.S.No.464 of 2008 pending before learned Civil Judge
(Sr.Division), Puri shall remain stayed till disposal of Test Case
No.7 of 2012 pending before the learned District Judge, Puri.
Learned District Judge shall conclude the hearing of Test Case
No.7 of 2012 within a period of six months from today. The
petition is allowed. No costs.
…………….…………….
 Dr.A.K.Rath, J.
Orissa High Court, Cuttack.
The 4th January, 2017/CRB.
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