RAMDUTTA Vs. KRISHNA

JUDGEMENT

(1.) Smt. Bhagwati Devi widow of Kamal Prasad Sharma died on 18-12-1982 leaving two sons-Krishna Dutta Sharma (respondent) and Bhoj Dutta (father of the petitioner). The respondent sued the petitioner and his father Bhoj Dutta for declaration of title to certain immovable property on the ground that he had inherited the same from his father. The petitioner resisted the claim and claimed title to the property under a will alleged to have been executed in his favour by Smt. Bhagwati Devi. He filed an application in the same Court for grant of probate of the will under S.276 of the Succession Act. In the probate proceedings, the respondent filed an application for stay under S.10 of the Civil P.C. or consolidating the probate case with the civil suit under S.151 of the same Code. Vide order dt. 12-2-1986, the Court consolidated the suit and the probate proceedings. Being aggrieved thereby, the petitioner has preferred this revision petition.

(2.) The contention of the learned counsel for the petitioner is that S.10 ibid does not apply for the reason that the probate proceedings do not constitute a suit. In support of his contention that the proceedings do not constitute a suit, he has placed reliance on a decision of Orissa High Court in the case of Mst. Puinbasi Maihiani v. Shiba Bhue, AIR 1967 Orissa 41. There is no dispute with that proposition with regard to the contention that S.10 applies only to suits, the learned Counsel has placed reliance on a decision of Andhra Pradesh High Court in the case of Manta Subbaramayya v. Batchu Narasimha Swamy, AIR 1972 Andh Pra 186 the following observations made wherein are noteworthy.

(3.) Thus, it is not possible for the petitioner to establish his alleged title to the property in question without complying with the requirements of S.213(1) of the Succession Act. That being so, it is injudicious exercise of jurisdiction to order the probate proceedings to be consolidated with the suit. The impugned order is, thus, bad in law and cannot be sustained. By ordering the consolidation, the lower Court has fallen into an illegality in the exercise of jurisdiction. The impugned order, if allowed to stand, would occasion a failure of justice and cause irreparable injury to the petitioner.