Sudhir Debnath VsKanal Bala Debnath

Deepak Gupta, C.J.—This is a petition filed under Article 227 of the Constitution of India challenging the order dated 25-06-2014 passed by the learned Civil Judge (Senior Division), Court No. 2, West Tripura, Agartala in case No. Title Suit (P) 86 of 2012 whereby he rejected the application filed by the petitioner (hereinafter referred to as the defendant) for adjournment of the case on the ground that the defendant has filed a probate suit and also for seeking permission to file a certified copy of the Will.

Briefly stated, the facts of the case are that the respondents herein filed a suit for partition against the present petitioner. This suit for partition was filed on 09-05-2012. The written statement in the suit was filed on 30-11-2012 and it appears that in the written statement the defendant-petitioner raised some plea that the suit property had been willed to him by the original owner. It also appears that the defendant-petitioner filed probate proceedings in the Court of the District Judge, West Tripura, Agartala on 04-12-2012 after filing of the written statement. No copy of the Will was attached to the written statement filed in the suit. The trial Court dismissed both the application for adjournment as well as the application for filing the written statement on the ground that the documents should have been filed along with the written statement.

On behalf of the petitioner, it is urged by Sri K.N. Bhattacharji, learned Senior Counsel, that because of the pendency of the probate application, the copy of the Will was filed in the probate proceedings and, therefore, the same could not be filed in the civil suit. He, therefore, prays for one opportunity to file certified copy of the Will in the trial Court.

On the other hand, Sri D.C. Roy, learned counsel for the respondents, submits that nothing prevented the plaintiff from at least filing a copy of the Will even with the written statement. He further submits that even in the probate proceedings the original Will was filed at a much later stage and not at the initial stage and, therefore, according to him, the petition should be rejected. It is lastly submitted by Mr. Roy that mere production of a certified Will is meaningless because merely by producing the certified copy, the original Will cannot be proved.

In the present case, it is not disputed between the parties that all the property which is the subject matter of the litigation is situated within the State of Tripura. In RFA 18 of 2013 [Smt. Aparna Das v. Smt. Kalyani Das & others] after considering the entire law on the subject including the judgment of a learned Single Judge of the Gauhati High Court in Samar Krishna Saha Vs. State of Tripura and Others, , this Court held as follows:--

"[6] A bare reading of sub-section 2 of Section 213 clearly shows that where a will executed by a Hindu, Buddhist, Sikh or Jaina is not executed within the territory of Bengal subject to the jurisdiction of the Lieutenant-Governor as on the first day of September, 1870 or within the local limits of the ordinary original civil jurisdiction of the High Courts of Judicature at Madras and Bombay and no part of the property is situated in any of these three areas then the will does not require to be probated. The natural consequences is that any Court of competent jurisdiction is, therefore, entitled to decide whether the will is genuine and has been validly executed or not."

Therefore, the civil Court is fully competent to decide whether the Will is genuine or not.

True it is that just because the probate is not necessary does not mean that a party cannot apply for it. However, since the suit was filed before the probate proceedings were initiated, the suit must continue and the Judge in the suit has the full authority and right to decide upon the validity of the Will.

As far as the non-production of the Will in the civil suit is concerned, though there has been lapse on the part of the defendant, I am of the view that the defendant should not suffer because of the wrong advice given to him. Even at this stage, mere production of the certified copy will not be sufficient. It has been stated by Sri Roy that the plaintiff has already led his entire evidence and that this is only a ruse to delay the proceedings. Mere production of the certified copy will not be sufficient to prove the Will. The original Will have to be summoned from the probate Court and the witnesses of the Will examined before the trial Court to prove the Will.

Therefore, this petition is disposed of with the following directions:--

"(i) That, in case the defendant on or before 24-11-2014 applies to the learned trial Court for permission to summon and prove the original Will lying in the probate Court, the learned trial Court shall allow the said application and permit the defendant to prove the Will by summoning the witnesses;

(ii) In view of the fact that the Will has to be proved, the statements of the witnesses and scribe who are to prove the Will be recorded on one day;

(iii) It shall be the responsibility of the defendant to produce the witnesses who are to prove the Will and only the witnesses whose examination-in-chief have been filed will be permitted to be produced in this regard. No other witnesses will be permitted to be examined;

(iv) The defendant-petitioner shall be given three opportunities at the most to produce these witnesses and these three opportunities shall be in the month of December, 2014 and January, 2015 only. No longer date shall be given. The Court shall thereafter hear the arguments in the matter and dispose of the matter regarding passing of the preliminary decree on or before 31-03-2015. The trial Court shall not await for and shall neither be bound by the orders, if any, passed in the probate Court and shall proceed with the matter in accordance with the directions issued by this Court."

This order is passed subject to payment of Rs. 2,500/- as costs to be paid to the respondent-plaintiffs on or before 24-11-2014. In case, costs are not paid, then the present petition shall be deemed to have been dismissed.