VIJAY GANAPATI Vs. CHITRA GANAPATI

JUDGEMENT

(1.) 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 under Section 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.

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

(3.) IN Joginder Pal v. Indian Red Cross Society, : 2000(4) R.C.R. (Civil) 712, 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.