District Judges alone have jurisdiction over probate matters under the Indian Succession Act, and contentious probate cases must follow specific procedural statutes without being converted into title suits.

JUDGMENT

Order No.14 Dated- 06.11.2023

1 .This application under Article 227 of Constitution of India has been filed for quashing the order 09.04.2019 (Annexure-6) passed by Judicial Commissioner, Ranchi in Revocation Case No.49 of 2018.

2. Brief facts of the case is that respondent No.1 Kailash Bihari Tiwari(now deceased) has instituted the Title Suit No.557 of 2010 against his wife Kalyani Devi(now deceased) for declaration of absolute owner with respect to the suit property. After death of Kalyani Devi, her two sons Sunil Dutt Tiwary and Ramesh Chandra Tripathi now respondent Nos.2 and 3 respectively have been substituted. However, Kalyani Devi had executed a Registered Will on 02.07.2009 with respect to the suit property in favour of the daughter-in-law( putoh ) namely Urmila Tiwary-petitioner. Petitioner-Urmina Tiway has filed the Probate Case No.07 of 2017 for grant of probate in her favour. The probate case was pending in the court of AJC-VIII, Ranchi while the title suit was pending before the Civil Judge (Sr. Division)-X, Ranchi. A transfer Petition No.31 of 2017 was filed by Kailash Bihari Tiwari (now deceased) before the Court of J.C.-cum-Principal District Judge, Ranchi under section 24 of the Code of Civil Procedure, 1908 for transfer of Title Suit No.557 of 2010 to the court where the probate case is pending i.e., before the court of AJC-VIII, Ranchi. The Judicial Commissioner, Ranchi passed the order dated 19.02.2018 by which Probate Case No.07 of 2017 was transferred for institution of probate case as title suit to the court where title suit was pending, whereas, prayer in the transfer petition was to transfer the title suit to the court where the probate case was pending. The petitioner-Urmila Tiwary filed a petition under XLVII read with section 151 of CPC for review of the order dated 19.02.2018 passed in the Transfer Petition No.31 of 2018 which was registered as Revocation Case No.49 of 2018 and vide impugned order dated 09.04.2019, the said Revocation Case No.49 of 2019 is dismissed which has been assailed through this civil miscellaneous petition.

3. Learned counsel for the petitioner has submitted that the probate case under Indian Succession Act, 1925 can be dealt with only by the District Judge and no other inferior court is competent to decide the same in view of Section 264 of the Indian Succession Act. It is further submitted that the Probate Case No.07 of 2017 was filed before the learned Judicial Commissioner, Ranchi and after appearance of opposite parties, transferred to the court of Additional Judicial Commissioner- VIII, Ranchi for disposal. Since the probate case was contentious, the procedure under Section 295 of Indian Succession Act, 1925 ought to have been followed. It is further submitted that for the same suit property a Title Suit No. 557 of 2010 was filed by the opposite party No.1, which is also pending before the court of Civil Judge (Senior Division)-X, Ranchi. Respondent filed a Transfer Petition No.31 of 2017 before the court of Judicial Commissioner, Ranchi with prayer to transfer Title Suit No.557 of 2010 to the court of Additional Judicial Commissioner-VIII, Ranchi where Probate Case No.07 of 2017 is pending. However, the Judicial Commissioner, Ranchi vide order dated 19.02.2018 transferred the probate case No.07 of 2017 to the court of Sub-Judge-X, Ranchi holding that the probate court i.e. AJC-VIII, Ranchi is not competent to determine the question of title to the suit, as in probate case question of title is involved. It is further submitted that revocation application for cancellation of the aforesaid order filed before the learned Judicial Commissioner, Ranchi was also rejected on wrong assumption.

4. Heard the learned counsel for the petitioner and perused the record, no one appears on behalf of the respondents in spite of valid service of notice upon the opposite party No.2 & 3. However, opposite party No. l has died.

5. It is further submitted that as per Provision of S