A Single Bench of Justice Aniruddha Bose presided to decide the case of Shamita Singha and Anr. v. Rashmi Ahluwalia and Anr. The Court ruled that to meet the ends of justice, we should not give priority to first filed suit before the suit filed later. The degree of relation between the final decisions of individual suits must be considered. The common determining factors, in a partition suit and a probate suit, is of extreme importance.
Brief facts of the Case
A Partition suit was filed in the Bombay High Court for the property division of a deceased. Later, a Probate suit was filed in the Delhi High Court about the Will of the same deceased person. In both suits, parties were the members of the same family. The assets forming part of the Probate suit and assets in the Partition suit have several common properties. Thus, the assets claim to have transferred by the Will, also forms the subject-matter of the Partition suit.
The petitioner’s counsel stated that the Probate Court have exclusive jurisdiction in matters relating to the legality of Will. For that reason, she pleaded for transfer of the suit instituted in the Delhi High Court to the Bombay High Court. She relied on the decision of Supreme Court in the case of Nirmala Devi vs. Arun Kumar Gupta and Others (2005) 12 SCC 505. This was in support of her submission of clubbing that suit for partition with a Testamentary proceeding. She stated that the decision in the
Probate suit on the question of the validity of the Will may have a direct impact on the Partition suit.
The counsel for the respondents insisted for the continuance of the Probate suit in the Delhi High Court. This is also because a major part of the assets of the deceased lies in Delhi. She submitted that both the proceedings can run in the respective courts in which they are instituted. Counsel further stated that the Probate Proceeding was instituted after the Partition suit. Hence, the former ought to be transferred to the Delhi High Court if clubbing together of the two proceedings is to be done. The counsel further referred to Section 270 of the Indian Succession Act, 1925. This is to contend that the Delhi High Court also has jurisdiction to try the Probate Proceeding.
The Court opined that the outcome of the Probate suit would have an impact on the Partition suit pending before the Delhi High Court. Majority of the assets in respect of which Letters of
Administration are common, are to those in respect of which partition is asked for.
She stated that if the Letters of Administration is granted to the petitioner in the Probate proceeding, then the assets of the deceased may not remain available as the partible estate of the deceased.
Moreover, if the partition suit proceeds and plaintiffs therein succeed, then there would be a possibility of inconsistent findings by two High Courts. The Bench, referring to the decisions in Balbir Singh Wasu vs. Lakhbir Singh And Others (2005) 12 SCC 503, Nirmala Devi (2005) 12 SCC 505 and Chitivalasa Jute Mills [(2004) 3 SCC 85, has directed clubbing together of both proceedings for hearing.
In the Partition suit, the point of execution of the Will by the deceased has been raised. The Bench opined that certain other common issues would arise for deciding in both proceedings.
Also, the Court stated, “A petition for transfer under Section 25 of the Civil Procedure Code is decided on consideration of the ends of justice.”
It mentioned that “First past the post” (i.e First filed case to be heard before the next fled) is not the principle to be applied in proceedings of this nature.
The Bench further opined that the Probate Court in Bombay had primacy in determining the probate of Will. Hence, the Bombay High Court, which is hearing the Probate petition, should decide the suit for partition as well.
The bench based the decision of transfer on the Will has been executed in Mumbai. And also the two attesting witnesses to support the Will are from Mumbai.
The Bench directed to transfer the Probate Petition from the Delhi High Court to the Bombay High Court. It further directed both, the Partition Suit as well as the Probate Petition to be listed before the same judge. The judge may be given the liberty to club the petitions if necessary. If both the petitions cannot be heard by the same judge, it may be placed before the Chief Justice of the Bombay High Court. He may issue directions to ensure that both petitions are heard.
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