Order
1. Leave granted.
2. The question raised in this appeal is as to whether the High Court was correct in dismissing the appellant's challenge to probate proceedings filed by the respondent on the basis of Section 10 of the Code of Civil Procedure. The High Court was of the view that the mere fact that the appellant had filed a civil suit, inter alia, challenging the execution of the Will in question, did not in any way debar the High Court from entertaining probate proceedings in respect of that Will.
3. The only ground on which we entertained the SLP at the outset was the question whether contentious probate proceedings could go on despite Section 10 of the Code of Civil Procedure.
4. It is not in dispute that the Civil Judge before whom the appellant had filed the suit for declaration and injunction would not have the jurisdiction to entertain the probate proceedings. According to the learned counsel appearing on behalf of the appellant, nevertheless the principles underlying Section 10 of the Code of Civil Procedure would apply because any decision on the civil suit would non-suit the respondent in the probate proceedings and the issues in the civil suit would overlap the issues which could be raised in the probate proceedings. It does not appear however that a decision on the appellant's civil suit would conclude the probate proceedings because the question whether the probate should be granted or not would still be left to be determined by the High Court where no doubt the decision on the civil court proceedings would be relevant.
5. The appellant's counsel then contended that Section 213 of the Succession Act which requires an executor to obtain probate before establishing his claim under the Will was not applicable outside the Presidency Towns of Calcutta, Madras and Bombay. Assuming this to be correct, we do not read Section 213 as prohibiting the executor from applying for probate as a matter of prudence or convenience to the courts in other parts of the country not covered by Section 213. Those courts are competent to entertain such applications if made.
6. However, having regard to the fact that in this case a large number of issues would overlap, we are of the view that both the probate proceedings and the civil suit should be clubbed and heard together by the District Judge who would be competent to hear and dispose of both the civil suit as well as the probate proceedings. We are supported in the view that we have taken by the order passed by a Bench of three Hon'ble Judges of this Court in Nirmala Devi v. Arun Kumar Gupta (2000) 2 All I HLR 436, (2005) 12 SCC 505. Accordingly, the appeals are disposed of by transferring the appellant's civil suit to the District Judge, Chandigarh. Similarly Probate Proceedings No. 2 of 1999 filed by the respondents pending before the High Court is transferred to the District Judge, Chandigarh for the purpose of being disposed of together with the civil suit. The interim order, if any, already passed in either of the proceedings will continue unless vacated/modified or altered by the District Judge. No costs.
7. It is made clear that this Court has not determined any issues raised by the parties in their respective proceedings in any manner whatsoever. The District Judge is requested to dispose of the matters expeditiously preferably within a period of one year from the date of receipt of the order of this Court.