Sushila Devi v. Bishwanath Ram & Others Opp. Parties.

Satyeswar Roy, J.:— The petitioner has prayed for setting aside the order dated 11.7.1984 by which the 4th Additional District Judge, Palamau allowed opposite party no. 1 (Bishwanath Ram) to withdraw his application for grant of probate which was registered as Title Suit No. 11 of 1982 and rejected her prayer to implead her as a party. The question which arises in the civil revision application is the right of a propounder of a will to withdraw his application. By order dated 5.2.86, the learned Single Judge who was hearing the civil revision application referred the case for hearing by a Division Bench. By order dated 14.4.1987, the Division Bench after noticing; the cases of Mt. Janakbati v. Gajanand, AIR 1916 Patna 82; Jugeshwar Nath v. Jagatdhuri Prasad, AIR 1917 Patna 41; and Babulal Mandal v. Abala Bala, AIR 1955 Patna 126, ordered for hearing of this civil revision application by a larger Bench to decide whether Order 23, Rule 1 of the Code of Civil Procedure (the Code) applied to a proceeding under the Indian Succession Act, 1925 (the Act).

2. One Most. Anhachchia Kaharin executed a will on 5.12.1969 which was registered on 2.1.1970 By the will she bequeathed-her property, a house property within Daltonganj Municipality, to opposite party no. 1 (Bishwanath Ram) and his brother opposite paity no. 2 (Basant Ram). Both of them were sons of her Dewar Dasai Ram. Anhachchia died on 11.9.1974 Bishwanath Ram and Basant Ram came in possession of the property and got their names mutated, both in the records of Daltonganj Municipality and the State of Bihar. On 26.11.1976 Bishwanath Ram executed a registered deed of sale in favour of the petitioner transferring his half share in the aforesaid house property. The name of the petitioner was mutated in the records of the State of Bihar. She on 6.6.1978 filed Title Suit No. 38 of 1978 in the court of the Subordinate Judge, Daltonganj for partition and separation of her half sharp in the Louse in question. Bishwanath and Basant Ram were the defendants in that suit. On 30th April, 1981 a preliminaiv decree was passed in favour of the petitioner and it was ordered that final decree shall be drawn up after grant of probate in respect of the will aforesaid.

3. On 19.1.1982 Bishwanath Ram filed an application for probate, Basant Ram filed an objection and in view of that it was registered as Title Suit No. 11 of 1982, Bishwanath examined three witnesses. However, on 20th April, 1984, he filed a petition seeking permission to withdraw the application for grant of probate. The petitioner coming to know about it filed a petition objecting to the prayer made by Bishwanath Ram and prayed for substituting her in his place as Bishwanath had transferred his interest in her favour. The court below relying in the case of Sakuntala Dasi v. Kusum Kumari Sarkar, AIR 1971 Orissa 103; allowed the prayer of Bishwanath and dismissed the suit as withdrawn. It observed that the petitioner was at liberty to take any legal action as may deem fit and proper against Bishwanath Ram. Her prayer for impleading her as a party was rejected.

4. The precise question which falls for consideration is:—

Whether Order 23, Rule 1(1) of the Code applies to probate and letters of administration proceeding under the Act?

5. The Code regulates proceeding in relation to probate and letters of administration in view of section 268 of the Act which reads as follows:—

“The proceeding of the Court of the District Judge in relation to the granting of probate and letters of administration, save as hereinafter otherwise provided, be regulated, by the Code of Civil Procedure, 1908.” It is necessary to notice section 141 of the Code of Civil Procedure which reads as follows:—

“144. Miscellaneous proceedings.— The procedure provided in this Code in regard to suit shall be followed, as far as it can be made applicable, in all proceedings in any court of Civil Jurisdiction.”

6. It is also necessary to notice that section 295 of the Act provides the procedure in contentious cases which reads as follows:—

“In any case before the District Judge in which there is contention, the proceedings shall take, as nearly as may be, the form of a regular suit, according to the provisions of the Code of Civil Procedure, 1908 in which the petitioner for probate or letters of administration, as the case may be shall be the plaintiff, and the person who has appeared to oppose the grant shall be the defendant.”

7. It is clear from the reading that the two sections of the Act and section 141 of the Code do not provide for application of all the provisions of the Code to probate and letters of administration proceedings. So far section 268 of the Act is concerned, there are two riders: (a) save as hereinafter otherwise provided, (b) so far as the circumstances of the case permit. In section 141 of the Code also, there is a rider: as far as it can be made applicable. Under section 295, contentious proceedings shall take, as nearly as may be, the form of a regular suit. What has been made applicable is the procedure prescribed in the Code and not the substantive rights. Nawab Usman Ali Khan v. Sagarmal : AIR 1965 Supreme Court 1798 : and Tribeni Kuer v. Shankar Tiwari: AIR 1971 Patna 391 : may be referred.

8. There is no scope now for disputing the legal position that whether there is a contest or not, the probate court is required to decide genuineness and validity of a will. The parties cannot be allowed to settle that by a compromise and Order 23 Rule 3 of the Code does not apply to probate proceedings. Reference may be made to Janakbati (supra) and Jugeshwarnath Sahai (supra). These cases were decided when Probate and Letters of Administration Act, 1881 was in force. Section 55 of 1881 Act corresponds to section 268 of the Act and section 83 of 1881 Act corresponds to section 295 of the Act.

9. It was contended on behalf of the petitioner that Order 23, Rule 1(1) does not apply to probate proceeding and the court below had no jurisdiction to allow Bishwanath Ram to withdraw the suit. It was not disputed that some of the procedures of the Code may apply to probate proceeding. In support of this contention, he relied in Jugeshwar Nath Sahai (supra) and Banwari Lal v. Mt. Kishen Devi: AIR 1920 Lahore 494;

10. On behalf of Bishwanath Ram (opposite party no. 1) it was submitted that the plaintiff cannot be compelled to proceed with the suit and he has a right to abandon or withdraw it at any stage. According to him, there is no provision in the Act which debars a person who was filed an application for probate or letters of administration of a will to withdraw such application whether there has been contest of not. Reliance placed in Sakuntala Dasi (supra).

11. The question which is involved in this application was also involved in the case of Babulal Mandal (supra). The facts of that case were that the legatees under a will filed an application for letters of administration. Caveat was entered. One of the legatees died and the proceeding continued at the instance of the other legatee. That legatee was murdered and her brother Babu Lal was substituted. A petition of compromise signed by some of the parties including Babu Lal was filed. The court refused to record the compromise. Letters of Administration with a copy of the will annexed, was issued to Babu Lal. Appeal was filed by one of the parties to the High Court which was registered as First Appeal No. 18 of 1941. The first Appeal was heard and judgment was reserved. Before the judgment could be delivered, Babu Lal filed a petition to withdraw the application for letters of administration. That was allowed with a direction that he would pay the cost of the appeal and that he would not make any further application for the grant of letters of administration. Thereafter there was a family settlement to which Babu Lal was not a party. On the allegation of having been dispossessed, suit was filed in which Babu Lal was defendant no. 1. The suit was decreed by the trial court in favour of the plaintiff. Babu Lal filed appeal, the judgment of which is the subject matter of the report. One of the points raised in that appeal was that the High Court had no jurisdiction to allow Babu Lal to withdraw the application for letters of administration. The Bench hearing the appeal was of the opinion that it was not necessary for disposal of the appeal to decide that question. Before proceeding further, I may notice that the other cases relied at the Bar do not deal with the question posed in this case. The three cases which require attention are Jugeshwar Inath Sahai (supra), Banwari Lal (supra) and Sakuntala Dasi (supra).

12. If a person has a right to file a suit, ordinarily he has a right to withdraw it also and the suit will be dismissed. In some cases he is not allowed to withdraw the suit, for instance, suit for partition, dissolution of partnership and like suits where each party may be entitled to same relief; if any application for withdrawal is filed by the plaintiff, any of the defendants, if prayer is made, may be transposed as plaintiff. The plaintiff may be allowed to withdraw a suit or may be allowed to abandon it before rights of the parties are decided; but once the rights between the parties have been determined, the plaintiff, as a matter of right, cannot pray for withdrawal of the suit nor shall be allowed to abandon it. In a suit where defendant has claimed a set off under Order 8 of the Code or has made a counter-claim, Court may not allow withdrawal of the suit. Whether the plaintiff may be allowed to withdraw a suit, will depend on nature of the suit, stage of the suit when the application is filed and different consideration will be applicable for different cases. In a probate proceeding, can an exception be mad to the ordinary rule noticed above and why such an exception shall be made? The judgment in a probate proceeding is judgment in rem. It cannot be disputed that once the genuineness and validity of a will is determined by a court, propounder cannot be allowed to withdraw the application, But before the determination, if an application is filed by the propounder of the will for allowing him to withdraw it or to abandon it and if the court refuses, is there any procedure which the propounder may be compelled to prosecute the proceeding? There may be cases where propounder after filing an application for permission to withdraw or abandon it does not press such application and does not also take any step in the probate proceeding. What the Court will do in such a situation? It cannot record a finding with regard to the genuineness and validity of the will without any evidence. It shall have no option but to dismiss the application for default. When a suit is dismissed for default, the provision of Order 9 Rule 9 of the Code will operate as a bar for the plaintiff from bringing a fresh suit in respect of the same cause of action. A Bench of this Court in Gorakh Ahir v. Jamuna Abir: AIR 1943 Patna 281 following (1910) 12 Calcutta Law Journal 185 : Ramani Devi v. Kumud Bandhu Mukherji held that as probate Court is required to adjudicate on the genuineness and legality of the will and as that was not done in the earlier case, Order 9 Rule 9 of the Code cannot be bar for filing a fresh application. I am of the opinion that as Order 9 Rule 9 of the Code puts an impediment to the right of the plaintiff, it shall not apply to probate proceeding.

13. The important question, therefore, is adjudication with regard to the genuineness and legality of the will. In Gorakh Ahir (supra) it was held that as revocation of adjudication of the will had been allowed ex-parte, Order 9 Rule 13 of the Code was applicable. From the judgment of Jageshwar Nath Sahai (supra) it appears that the two executors of a will applied for probate of a will under which the testator gave bulk of his property to his widow and her son. A petition of compromise was filed under which the widow on behalf of herself and her son agreed to divide the properties with three sons by the first wife. On that very date two executors who had applied for probate withdrew their application. Some months thereafter a fresh application for probate was filed by two executors and in this application one of the executors who had applied before joined; the other applicant was another executor. An objection was taken on behalf of the sons of the first wife that the previous application for probate having been withdrawn, the executors were precluded by the provisions of Order 23 Rule 1 of the Code from again applying for probate. On these facts, this Court observed that it was settled by the authority that an appiication for probate cannot legally be disposed of by a compromise and the law imposes on the Court itself the duty of determining whether the will is genuine or not. It held that the Court had acted improperly in permitting the executors to withdraw the application for probate merely by reason of the compromise which was filed in earlier proceeding. In that context it was observed as follows:—

“Now the circumstances of a probate case do not properly admit of the withdrawal of an application for probate by an executor. Order 23 Rule 1 C P.C which says that a plaintiff may withdraw his suit or abandon a part of his claim therefore does not, in my opinion, apply to an application for probate. It is the duty of an applicant for probate to obtain the opinion of the Court upon the genuineness or otherwise of the will. He fails in his duty if he does not obtain the finding of the Court on the will: that being so it is clear that the further provision in Order 23 Rule 1 to the effect that if a plaintiff withdraws from a suit, he shall be precluded from instituting any fresh suit in respect of the same subject matter also does not apply.

“It is clearly undesirable that if any executor does improperly withdraw an application for probate, he should be precluded from again undertaking the discharge of his duty in obtaining the finding of the Court on the genuineness of the will.”

14. The question involved in that case was effect of withdrawal of earlier application for probate without leave of Court on the subsequent application i.e Order 23 Rule 1 (4). The observation made therein about applicability of Order 23 Rule 1 (1) must be read in the context it was made. I am of the opinion that the Bench did not lay down and could not have laid down as a general proposition applicable to all probate proceedings that Order 23 Rule 1 (1) C.P.C has no application. The ratio of that case is that Order 23 Rule 1 (4) has no application to probate proceeding. This is correct legal position as Order 23 Rule 1 (4) puts an impediment on the right of a party to get opinion of Court on the genuineness and validity of will.

15. In Banwari Lal (supra), the plaintiffs, inter alia, prayed for declaration that alienation made by the widow of Gauri Shankar in favour of her son-in-law was void and applied for appointment of receiver for the management and protection of the property left by Gauri Shankar and for injunction. These prayers were made on the footing that the property was ancestral property of the parties and belonged jointly to the plaintiffs and Gauri Shankar. Their case was that, according to the custom, after the death of the widow of Gauri Shankar the plaintiffs would be heirs to the exclusion of her daughter and the daughter's son and that Gauri Shankar had made a will by which he declared that the plaintiffs would be the heirs after the death of his widow and the suit was dismissed. The plaintiffs filed an appeal. On behalf of the respondents in that appeal, it was contended that the plaintiffs had applied for probate of the will but after a caveat had been lodged by Gauri Shankar's daughter, the application was withdrawn and consequently, the case was dismissed. On these facts, on behalf of the respondents it was argued that Order 23, Rule 1 of the Code was a bar for the plaintiffs from suing on the basis of the will after the withdrawal. Referring the judgment of Mt. Janakbati (supra) it was held in Banwari Lal (supra) that a probate proceedings cannot be disposed of in accordance with the terms of compromise between the propounder and the objector. Jugeshwar Nath Sahai (supra) was relied upon to hold that Order 23 Rule 1 of the Code does not apply to a probate proceeding. On these facts the reference to Rule 1 must be confined to Rule 1 (4). Banwari Lal's case also does not lay down as a general proposition that in no circumstances Order 23 Rule 1 (1) shall apply to a probate proceeding.

16. From the judgment of Sakuntala Dasi (supra) it appears that two wills were alleged to have b;en executed by Adhar Chandra Sarkar. After his death, Sakuntala claiming to be his second wife, filed an application for probate of the will. She did not pay stamp duty and the application was dismissed for default. Sakuntala transferred substantial part of the property to Smt. Shanti. Sakuntala filed an application for probate in 1965 and the other widow namely Kusum Kumari filed an application in 1966 for the probate of another will. Caveats were filed in both the cases. Hearing of both the cases were made analogous. Witnesses were examined. In 1965 two applications were filed by Sakuntala, one in probate case filed by her wherein she prayed that she may be permitted unconditionally to withdraw the application, and the other in Kusum Kumari's case wherein she had filed objections. The transferee from Sakuntala applied to enter caveat. The District Judge rejected both the applications of Sakuntala and ordered that the application filed by the transferee of Sakuntala would be disposed of after the final hearing of the two cases. The High Court did not express any opinion with regard to the prayer of the transferee as the District Judge had not disposed of the application. The High Court noticed the case of Jugeshwar Nath Sahai (supra) and it was observed that what was laid down in the case was that Order 23 Rule 1 of the Code which precludes the plaintiffs to file a fresh suit on the same cause of action if he withdraws the suit without obtaining leave of the Court has no application to probate proceedings.

17. It will thus be noticed that in Jugeshwar Nath Sahai (supra) and Banwari Lal (supra) question arose whether the withdrawal of an application for probate without obtaining leave of Court could be a bar for filing a fresh application and it was held that Order 23 Rule 1 has no application. What their Lordships meant was that Order 23 Rule 1(4) had no application. I have already held earlier that is the correct legal position.

18. I have already observed that a probate court cannot possibly proceed to determine the genuineness and validity of a will if the propounder in an uncontested case chooses not to proceed with the matter. He may not file an application for withdrawal. He may not file an application for permission to allow him to abandon the case. He may simply stop taking any step in the case. The only option that a court has in such a situation is to dismiss the case in default. In such a case, as there has been no adjudication of the genuineness or validity of the will, there shall be no bar for filing a fresh application.

19. The legal position in a contested probate proceeding may be different. In a contested case i.e the application which has been registered as a title suit, if the propounder wants to withdraw from the case or wants to abandon it or does not take any step and if there be any defendant who claims an interest under the will, the Court may not in such a situation allow the propounder to withdraw the suit or to abandon it or dismiss the suit, for default, if the person or any of the persons claiming an interest in the property under the will applies to the Court to allow him to prosecute the case, the Court may in such a situation take recourse to Order 1 Rule 10 of the Code and transpose any such defendant as plaintiff and transpose the plaintiff as a defendant. There may be a case where the propounder having transferred his interest in the property does not take any interest in the suit or prays for withdrawing the suit or abandons it and, if any application is made by such a transferee to be added as a party, the Court should allow it by following the procedure of Order 1 Rule 10 of the Code, if a prima facie case is made out.

20. In this case, I have already noticed that Bishwanath Ram had already transferred his property to the petitioner and there is already decree in a partition suit in her favour with a rider that final decree shall proceed only after the probate of the will was obtained. In probate case which was registered as Title Suit No. 11 of 1982, the caveator was Basant Ram (opposite party no. 2) who denied the execution, attestation and registration of the will and also challenged its validity. If in Title Suit No. 11 of 1982, opposite party no. 1 (Bishwanath Ram) is allowed to withdraw the suit, the decree of Title Suit No. 38 of 1978 will become a decree on paper only. Bishwanath cannot be allowed to do it. In this case, the court below should have refused the prayer of Bishwanath. I am, therefore, of the opinion that the answer to the question posed in this case whether Order 23 Rule 1 (1) shall apply to a probate proceeding will depend on the facts of each case and it cannot be laid down as a general rule that it has no application to such proceeding. In this case it must be held that Bishwanath cannot be allowed to withdraw the application.

21. This application is allowed, the order of the court below is set aside and the application of Bishwanath for permission to withdraw the case is rejected. The application of the petitioner for impleading her as a party is allowed. After she is so impleaded, the dispute will be between the two defendants i.e the petitioner-intervenor and Basant Ram, opposite party no. 2. The Court in such a situation is not helpless and there are decisions of the highest Court rendered in Hulas Rai Baij Nath v. Firm K.B Dass & Co.: AIR 1968 Supreme Court 111 : R. Rammurthi Aiyar v. Rajeshwar Rao, (1972) 2 SCC 721 : AIR 1973 Supreme Court 643 : and by this Court in Basudeb Narayan v. Shesh Narayan: AIR 1979 Patna 73 : that Court may transpose a defendant as a plaintiff. Not only this has been codified by introducing Rule 1-A in Order 23, the law laid down in the aforesaid cases has been widened as has been held in Mohd. Muzahid v. Johin Wilson Zedak: AIR 1989 Patna 2 : In the present case as the dispute is between Basant and the petitioner, the proper course is to take recourse to Order 23 Rule 1-A, transpose the petitioner as plaintiff in place of Bishwanath Ram and to transpose Bishwanath Ram as defendant no. 2. There shall be no order as to cost.

S.K Jha, A.C.J:— I agree.

L.P.N Shahdeo, J.:— I agree.