Pratibha Mohta vs Sanjay Baori and Others

Sujoy Paul, J.—This petition filed under Article 227 of the Constitution takes exception to the order dated 4.11.2009, whereby the applications preferred by the present petitioner under Order 14 Rule 5, CPC and Order 8 Rule 1(A)(3) CPC is rejected by the court below.

In a probate proceeding, the present petitioner filed an application dated 26.8.2009. In the said application, it is contended that the present application is preferred to obtain probate certificate. The objector has raised a categorical objection that the gift deed dated 30.7.1950 was called in question in earlier Case No. 1A/1979 (renumbered as 76A/1987). The said matter was referred for adjudication before an Arbitrator. The Arbitrator by his award dated 22.4.1992 found that the said gift deed was invalid and found that the property in question is liable to be partitioned. Smt. Rukmani Devi was aware about this order since beginning. Hence, she has no right to execute a will in relation to the said property. Accordingly, following issue is required to be framed-

"Whether Rukmani Devi was competent to execute the will in respect of the property in question"?

This application was opposed by the other side by filing reply dated 20.10.2009.

The petitioner filed yet another application under Order 8 Rule 1(A)(3) CPC. Reply to this application was filed on 20.10.2009.

Both the applications are decided by court below by impugned order.

Criticizing this order, Shri Bharadwaj, learned senior counsel submits that Chapter XVII, Section 2, Rule 43 of MP High Court Rules and Orders, 2008, makes it clear that provisions of Code of Civil Procedure are applicable. Reliance is also placed in this regard on section 10 of M.P. Civil Courts Act, 1958. By placing reliance on 1996 AIHC 342 (Smt. Satyawati v. State of Rajasthan), it is contended that the court below has erred in holding that provisions of CPC are not applicable. He relied on an order of this Court dated 28.7.1997, passed in C.R. No. 559/1997 (Smt. Rukmani Devi Babari v. Smt. Pratibha Mohata and others), wherein following issue was framed by this Court:--

"Whether the person Laxmikumar Bhavari was competent to make the will regarding properties in dispute."

Shri Bharadwaj submits that in view of order of this Court dated 28.7.1997 aforesaid, the court below should have framed additional issue raised by the petitioner. He also relied on Lalitaben Jayantilal Popat Vs. Pragnaben Jamnadas Kataria and Others, AIR 2009 SC 1389 : (2009) 2 JT 149 : (2009) 1 SCALE 328 : (2008) 15 SCC 365 : (2008) 1 UJ 119 : (2009) AIRSCW 828 : (2009) 1 Supreme 339 . Learned senior counsel has taken pains to submit that the court below has erred in holding that it was not open to the said court to examine the aspect of competent of Smt. Rukmani Devi to execute the said will.

Shri Vikas Singhal, learned counsel for the respondent No. 3 supported the stand of the petitioner.

Shri Sanjeev Jain, learned counsel for the respondents No. 1 and 2 opposed the said contention. He submits that in probate proceedings, which are summary in nature, the court below has limited jurisdiction. By placing reliance on Ishwardeo Narain Singh Vs. Sm. Kamta Devi and Others, AIR 1954 SC 280 ; Chiranjilal Shrilal Goenka (Deceased) through Lrs. Vs. Jasjit Singh and Others, (1993) 2 JT 341 : (1993) 2 SCALE 146 : (1993) 2 SCC 507 : (1993) 2 SCR 454 and Alagammai and others Vs. V. Rakkamal, AIR 1992 Mad 136 : (1993) 1 DMC 322 , it is contended that court below has not committed any jurisdictional error nor order of court below suffers from any procedural impropriety. Thus, no interference is warranted in this petition. He submits that the order passed by this Court in C.R. No. 559/1997 (supra) is a consent order and, therefore, has no binding force. Shri Jain has also taken pains to submit that the aspect of competence of Smt. Rukmani Devi was not required to be seen by the court below.

No other point is pressed by learned counsel for the parties.

I have bestowed my anxious consideration on rival contentions of the parties and perused the record.

It is seen that the Court below mainly opined that the facts narrated by the petitioner in the said applications are not necessary for adjudication of a probate matter. The Court below basically dealt with the question of testamentary capacity of Smt. Rukmani Devi and in the light of judgments mentioned in the last paragraph, opined that the said applications cannot be accepted.

Shri Bhardwaj, learned senior counsel relied on Section 2 Chapter XVII Rule 43 of Madhya Pradesh High Court Rules, 2008. However, on a minute scrutiny, it is seen that the said provision is in fact available in M.P. High Court Rules and Orders (High Court of Judicature at Nagpur). The said rules have no application in the present case.

So far the application under Order 14 Rule 5 CPC is concerned, I find force in the argument of Shri Sanjiv Jain that the order passed in C.R. No. 559/1997 was a consent order. Thus, the said order is of no assistance to the petitioner. As held by the Court below, the basic question is about the scope of jurisdiction of Court below in a matter relating to probate. In my view, this point is no more res integra. The Apex Court in Ishwardeo Narain Singh Vs. Sm. Kamta Devi and Others, AIR 1954 SC 280 opined as under:

"The Court of Probate is only concerned with the question as to whether the document put forward as the last will and testament of a deceased person was duly executed and attested in accordance with law and whether at the time of each execution the testator had sound disposing mind. The question whether a particular bequest is good or bad is not within the purview of the Probate Court. It is surprising how the elementary principle of law was overlooked by both the Courts below".".

(Emphasis Supplied)

In Chiranjilal Shrilal Goenka (Deceased) through Lrs. Vs. Jasjit Singh and Others, (1993) 2 JT 341 : (1993) 2 SCALE 146 : (1993) 2 SCC 507 : (1993) 2 SCR 454 , the Apex Court again followed the judgment of Ishwardeo Narain Singh (supra). In Basanti Devi Vs. Raviprakash Ramprasad Jaiswal, AIR 2008 SC 295 : (2008) 1 CLT 525 : (2008) 1 CTC 698 : (2007) 12 JT 273 : (2008) 1 SCC 267 : (2007) 11 SCR 444 : (2007) AIRSCW 6781 , the Apex Court again considered the judgment of Ishwardeo Narain Singh (supra). Para 22 of the said judgment reads as under:

"2 2. The Probate Court, indisputably, exercises a limited jurisdiction. It is not concerned with the question of title. But if the probate has been granted subject to compliance with the provisions of the Act, an application for revocation would also lie".

(Emphasis Supplied)

In view of principles laid down by Supreme Court in the aforesaid judgments, it is clear that the Probate Court has limited jurisdiction. The question whether a particular bequest is good or bad is beyond the purview of the Probate Court. The Probate Court is not concerned with the question of title. The same view is taken by the Court below. I find no legal flaw in the finding of the court below in this regard.

So far the application under Order 8 Rule 1(A)(3) CPC is concerned, the court below opined that the facts which are mentioned in the said application are not relevant and have nothing to do with the Probate proceedings. Those facts may be relevant for a Civil Suit. For this reason, the application was disallowed.

Although in Smt. Satyawati (supra), the Rajasthan High Court opined that the provisions of CPC can be made applicable in a Probate proceeding as per Section 295 of the Succession Act, the Court below has not held that the application under Order 8 Rule 1(A)(3), CPC, was not maintainable. The Court below opined that in the facts and circumstances of the case, the application and documents mentioned in the said application are not relevant. Thus, the said judgment is of no help to the petitioner. Similarly, the judgment of Lalitaben Jayantilal Popat (supra) is based on a different factual scenario and has no application in the facts and circumstances of this case.

The scope of interference under Article 227 of the Constitution is limited. The interference can be made If order is shown to be passed by a Court having no jurisdiction, it suffers from manifest procedural impropriety or perversity. Even an erroneous order is not required to be corrected in these proceedings under Article 227 of the Constitution. The basic purpose of exercising the said jurisdiction is to keep the courts below within the bounds of their authority. There is no ingredient on which interference can be made in this petition.

Thus, the interference is declined. Petition sans substance and is hereby dismissed. No costs.