ANJALI SAHA Vs. GAUTOM SAHA

JUDGEMENT

(1.) Heard Mr.C Goswami, learned counsel for the appellant and Mr. A Ahmed, learned counsel for the respondent.

(2.) The appellant herein instituted Misc.(Pro) Case No.39 of 2011 in the Court of learned District Judge, Mangaldai for grant of probate in respect of a Will of her deceased husband Indramohan Saha. The probate case instituted by the appellant was contested by the respondent who happens to be a son of the deceased through his first wife. An objection was raised by the respondent that the Will relied upon by the appellant is not genuine and that it was not executed by the deceased Indramohan Saha. By raising such issue, the respondent also filed a counter claim in his objection petition. In such circumstance, the learned District Judge, Mangaldoi passed the order, dated 10.04.2013 by which, a satisfaction was formed that there are sufficient materials to adjudicate the matter in order to arrive at a decision. Accordingly, the probate proceeding was converted to a suit and a direction was issued that a title suit be registered. Accordingly, by the same order, the proceeding was transferred to the court of learned Civil Judge, Darrang, Mangaldoi for being tried as suit by providing that the parties shall pay necessary court fee and shall appear before the learned Civil Judge on a given date. When the matter was taken up in the Court of the learned Civil Judge, the order of 26.04.2013 was passed. The learned Civil Judge arrived at his own conclusion that the Civil Judge did not have a jurisdiction for granting probate of the Will but in view of the order passed by the learned District Judge, the Civil Judge went through the probate petition and formed the view that no requisite particular was available in the plaint as required under Order VII Rule 1 of the Code of Civil Procedure (in short 'CPC'). A satisfaction was also arrived that the court fee required to be paid by the appellant was also not paid. Accordingly, the appellant was directed to take steps to convert the petition into title suit and also to pay necessary court fee. In the circumstance, by this appeal, the appellant primarily assails the order, dated 10.04.2013 of the learned District Judge.

(3.) Mr. C Goswami, learned counsel for the appellant raises a contention that merely because an objection had been raised by the respondent in the probate case that the Will in question is not a genuine Will, that by itself would not be sufficient to convert the probate proceeding to a title suit. Mr. Goswami refers to the provision of Section 9 of the CPC, which inter-alia provides that the Court shall try all suits of civil nature except such suits which are either expressly or impliedly barred. Accordingly, Mr. Goswami refer to the provisions of Sections -268, 269 and 290 of the Indian Succession Act to substantiate his submission that the said provisions of the Indian Succession Act impliedly bars the jurisdiction of the civil court for the purpose of adjudicating a probate proceeding.