Vijay Ganapati vs Chitra Ganapati

Paramjeet Singh, J.—Instant civil revision has been filed under Article 227 of the Constitution of India read with Section 151 of the Code of Civil Procedure, 1908 (in short "CPC") for setting aside the order dated 14.11.2013 (Annexure P-5) passed by learned Additional District Judge, Gurgaon- whereby application under Order VII, Rule 11 CPC moved by the petitioner, has been dismissed. Shorn of unnecessary details, the facts giving rise to the present petition are to the effect that respondent No. 1-Ms. Chitra Ganapati and Raman Sharada (since deceased) filed a petition under Sections 276 and 278 of the Indian Succession Act, 1925 for grant of probate/letters of administration with respect to Will dated 20.12.2000 allegedly executed by Sh. Ram Ganapati son of late Sh. A.K. Ram Iyer. During the pendency of probate petition, the petitioner moved an application under Order VII Rule 11 CPC averring that probate petition is liable to be rejected on the ground that a suit for declaration and permanent injunction challenging the alleged Will dated 20.12.2000 which is also subject matter in the probate petition has already been filed. The said suit is pending in the Court of Civil Judge, Gurgaon. The probate petition is also with respect to the alleged Will dated 20.12.2000. Upon notice, respondent No. 1 herein filed reply to the said application. It is mentioned that probate of the Will can be granted under the provisions of the Indian Succession Act, 1925 by the Court of District Judge or the court designated by District Judge. Since Indian Succession Act is a special law on testamentary succession and it creates a special forum for probate of the Will, as such civil suit invoking the jurisdiction u/s 9 of the CPC will not lie as Civil Court can not decide the question of probate of Will. Vide impugned order dated 14.11.2013, learned Additional District Judge, Gurgaon has dismissed the said application. Hence, this revision petition.

I have heard learned counsel for the petitioner and perused the record.

In R.P. Khosla v. General Public and others, 1992(2) H.L.R. 157, this Court has specifically come to the conclusion that it is beyond the scope of the probate proceedings to go into the question of nature of the property dealt with under the Will. The probate Court has no jurisdiction to deal with the title of property. It is open to a party claiming any right in respect of the property dealt with under a Will to establish his right by a regular civil suit.

In Joginder Pal Vs. Indian Red Cross Society and Others, , the Hon''ble Supreme Court has held that the petition under the Indian Succession Act does not bar the same question being raised between the same parties in a subsequent suit or proceedings and the principle of res judicata does not apply. The proceedings under the probate are summary in nature.

In Chiranjilal Shrilal Goenka (Deceased) through Lrs. Vs. Jasjit Singh and Others, , the Hon''ble Supreme Court has held that grant of probate does not do more than establishing the factum of the Will and the legal character of the executor. Probate Court does not decide any question of title or of the existence of the property itself.

In Amar Deep Singh Vs. The State and Others, , it has been held that during the pendency of civil suit with respect to validity of Will, the probate proceedings are not liable to be stayed, meaning thereby that the Court can continue with the probate proceedings.

When a court can continue with the probate proceedings, then there is no question of rejecting the probate petition on the ground that civil suit is pending in the Civil Court. In view of law laid down in judgments (supra), J do not find any illegality or perversity in the impugned order.

Dismissed in limine.

No order as to costs.