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SUPREME COURT OF INDIA
ANIRUDDHA BOSE, J.
Shamita Singha and Another – Petitioners
Versus
Rashmi Ahluwalia and Another – Respondents
Transfer Petition (Civil) No. 1531 of 2018
Decided On : 18-06-2020
Civil Procedure Code, 1908 – Section 24 – Indian Succession Act, 1925 – Section 270 – Transfer of suit for partition and other ancillary reliefs – Majority of assets in respect of which Letters of Administration has been sought for are common to those in respect of which partition is asked for – However, grant of Letters of Administration, if ordered, per se would not determine title of testator in assets scheduled to Testamentary Petition – Testamentary proceeding would have direct bearing or impact on pending suit for partition – If Letters of Administration is granted to petitioner in Testamentary proceeding, then assets of deceased may not remain available as partible estate of deceased – Respondents are contesting petition for grant of Letters of Administration – If partition suit proceeds independently and plaintiffs therein succeed, then there would be possibility of inconsistent findings by two High Courts, provided petitioners succeed in Testamentary proceeding – Certain common issues would arise for adjudication of both these proceedings – A petition for transfer under Section 25 of CPC is decided on consideration of ends of justice – “First past the post” is not the principle that can be applied in proceedings of this nature – Probate Court having primacy in determining question of grant of Letters of Administration or Probate, it would be expedient for ends of justice that Bombay High Court which is hearing Testamentary petition, should decide suit for partition as well – Plaintiffs in suit for partition are also contesting Testamentary Petition and they would not be greatly inconvenienced in prosecuting suit before Bombay High Court – Outcome of Probate proceeding would have impact on suit for partition pending before Delhi High Court – Transfer petition allowed. (Paras 6 to 9)
Facts of the case:
Petitioners in this proceeding are both daughters of deceased. They seek transfer of a suit for partition and certain other ancillary reliefs instituted in Delhi High Court. schedule of assets forming part of the petition for Letters of Administration and the table of assets given in the suit for partition have several common movable and immovable properties. Thus, the assets which the petitioners claim to have been bequeathed to them by the testator also forms subject-matter of the suit for partition.
Findings of the Court:
Hon’ble Judge may hear both the proceedings simultaneously, clubbing them together, if necessary. In the event the Hon’ble Judge before whom the said Testamentary Petition is listed or pending listing does not have the determination to hear the suit for partition as per the roster of the Bombay High Court, then the file may be placed before the Hon’ble Chief Justice, Bombay High Court, for appropriate order of assignment so that both the Suit and the Testamentary petition can be heard together.
Result : Petition allowed.
JUDGMENT :
ANIRUDDHA BOSE, J.
1. The petitioners in this proceeding are both daughters of Late Pawan Kumar Singha (deceased). They seek transfer of a suit for partition and certain other ancillary reliefs instituted in the Delhi High Court. The said suit has been registered as CS (OS) No. 2888 of 2014. The plaintiff in that suit is Rashmi Ahluwalia, who is the widow of the deceased. She was the second wife of the deceased. The petitioners in this proceeding, Shamita Singha and Masoom Singha are daughters of Pawan Kumar Singha, deceased, from his first marriage, which was later dissolved. Both of them have been impleaded as defendants in that suit for partition. The third defendant in that suit is Ms. Sanjana, who is the daughter of Rashmi Ahluwalia, from her first marriage. It has been pleaded in the plaint that after her marriage to the deceased, Sanjana was “accepted/adopted” by the deceased Pawan Kumar Singha as his own daughter. Sanjana is the second respondent in this petition. The first petitioner, Shamita Singha has applied for grant of Letters of Administrations to the estate of the deceased Pawan Kumar Singha on the basis of his Will dated 15th January, 2014. A petition to that effect has been filed in the Testamentary and Intestate jurisdiction of the Bombay High Court. That petition, filed on 22nd April 2016, has been registered as “T. Petition No. 821 of 2016.” Rashmi Ahluwalia and said Ms. Sanjana Ahluwalia, have put in appearance in the Testamentary Petition. They question, inter-alia, the legality of the Will and contend that it is forged.
2. So far as the suit in the Delhi High Court is concerned, this has been instituted prior in time, on 18th September, 2014. In the CS (OS) No. 2888 of 2014, Rashmi Ahluwalia has claimed partition of the estate of the deceased and has sought declaration to the effect that she is entitled to 1/4th share of the estate. The schedule of assets forming part of the petition for Letters of Administration and the table of assets given in the suit for partition have several common movable and immovable properties. Thus, the assets which the petitioners claim to have been bequeathed to them by the testator also forms subject-matter of the suit for partition.
3. The petitioners’ case argued by Ms. Arora, learned counsel, is that the Probate Court has exclusive jurisdiction in matters relating to legality of a will and for that reason, her plea is that it would be expedient that the suit instituted in the Delhi High Court should be transferred to the Probate Court. Ms. Arora has relied on a decision of this Court in the case of Nirmala Devi vs. Arun Kumar Gupta and Others, (2005) 12 SCC 505 in support of her submission that the suit for partition can be clubbed together with a Testamentary proceeding. This argument is founded on the reasoning that the decision in the Testamentary proceeding on the question of validity of the Will shall have direct impact on the partition suit. Ms. Mishra, learned counsel for the respondents, on the other hand has pressed for continuance of the suit in the Delhi High Court. It is her submission that both the proceedings can simultaneously run in the respective fora in which they have been instituted. Her alternative plea is that the Suit for partition having been instituted before the Probate Proceeding, the latter ought to be transferred to the Delhi High Court, if clubbing together of the two proceedings is at all warranted. She has drawn my attention to Section 270 of the Indian Succession Act, 1925 to contend that the Delhi High Court also has jurisdiction to try the Probate Proceeding.
4. This Court has laid down in the case of Chiranjilal Shrilal Goenka vs. Jasjit Singh and Others, (1993) 2 SCC 507 the primacy of the Probate Court on the question of validity of a Will. On behalf of the respondents, a decision of this court in the case of Kanwarjit Singh Dhillon vs. Hardyal Singh Dhillon and Others, (2007) 11 SCC 357 has been cited. This case is an authori
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