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KRUSHNA RAM MOHAPATRA
Sudam Charan Sahu – Appellant
Versus
Sasmita Sahoo – Respondent
JUDGMENT
Krushna Ram Mohapatra, J.—This matter is taken up by virtual/physical mode.
2. Order dated 12th July, 2022 (Annexure-5) passed by learned Senior Civil Judge, Angul in CS No.24 of 2004 is under challenge in this CMP, whereby an application filed by the Petitioner under Order VII Rule 10 CPC has been rejected.
3. As would reveal from the averments made in the CMP, Opposite Party Nos.1 to 3 filed an application under Section 276 of the Indian Succession Act, 1925 (hereinafter referred to as ‘the Act of 1925’) before learned District Judge, Dhenkanal for grant of probate of Will, which was registered as Test Case No.14/20 of 2003. Subsequently, after filing of the written statement therein, the probate proceeding became contentious and was transferred to the Court of learned Senior Civil Judge, Angul and registered as CS No.24 of 2004. The Petitioner has been arrayed as Opposite Party No.2 in the said proceeding. Needless to mention here that the present Petitioner along with predecessor of Opposite Party Nos.6 to 9, namely, late Sudhir Kumar Sahu have already filed their respective written statements opposing the probate.
4. Partition Suit in CS No.99 of 2002 is also pending
Return of plaint –Adjudication of petition, which is likely to affect trial of suit or to take away jurisdiction of Court to try suit, cannot be entertained when further proceeding of suit is stayed.
The jurisdiction to grant probate in contentious matters lies solely with the District Judge, and cannot be exercised by a subordinate delegate court.
An application under Order 7 Rule 11 CPC must be disposed of before trial; failure constitutes a jurisdictional error warranting revision.
The main legal point established in the judgment is that the probate of a Will executed outside the local limits of the High Courts of Madras, Calcutta, and Bombay is not necessary under Sec. 213 of ....
The main legal point established in the judgment is that while the probate proceeding may impact the shares of the parties in the partition suit, staying all further proceedings of the partition suit....
(1) Failure to present written statement – Court is not supposed to pass a mechanical judgment invoking Rule 10 of Order VIII, CPC merely on the basis of plaint, upon failure of a defendant to file a....
No petition for probate filed under Section 276 of the Act. In the absence of any such petition, the court below cannot invoke the provisions under Section 295 of the Act.
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