Supreme Court of India
Shamita Singha vs Rashmi Ahluwalia on 18 June, 2020Author: Aniruddha Bose

Bench: Aniruddha Bose










The petitioners in this proceeding are both

daughters of Late Pawan Kumar Singha(deceased).

They seek transfer of a suit for partition and
Signature Not Verified

certain other ancillary reliefs instituted in
Digitally signed by
Date: 2020.06.19
17:42:28 IST

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 & Others

(2007) 11 SCC 357 has been cited. This case is

an authority on the point that the Probate

Court is not competent to determine the

question of title of the properties forming

subject-matter of a Will. In another decision,

Binapani Kar Chowdhury vs. Sri Satyabrata Basu

and Another (2006) 10 SCC 442 the question

involved was as to whether a legal

representative could prosecute a civil suit

filed by the Testator during his lifetime for

recovery of possession against third party. The

legal representative in that case wanted to be

substituted as plaintiff in the civil suit in

the capacity of executor and legatee of the

will of the Testator, who was plaintiff in the

suit. Such a course was found to be

permissible. This opinion of the Court was

qualified with the direction that if the suit

was ultimately decreed, the Trial Court should

make it clear that the judgment and decree

would come into effect only on such legal

representative obtaining and producing the

probate of the Will. Till such time the decree

was to be kept provisional and not to be given

effect. But ratio of this judgment does not

apply in the facts of this case. The Delhi High

Court, in the case of Praveer Chandra vs.

Aprajita & Others (2019 SCC Online Delhi 10820)

has followed the course directed in the case of

Binapani Kar Chowdhury (supra) and has held

that a partition suit and Probate Proceeding

could proceed simultaneously, but if the

Partition suit was decreed, the decree would

come into effect after the decision in the

Probate proceeding. This view was taken,

however, in an application filed under Section

10 of the Code of Civil Procedure, 1908, in

which the partition suit was sought to be


5. In Chitivalasa Jute Mills vs. Jaypee Rewa

Cement [(2004) 3 SCC 85], this Court has

broadly laid down the guideline to be followed

while dealing with the question of transfer of

suit under Section 25 of the Code. In that

case, parties were substantially the same in

two suits. The disputes arose out of same set

of transactions. The cause of action of the

suit alleged by one party was its ground of

defence in the other suit. This Court found

that the same set of evidence would be needed

in both the suits. In such circumstances, this

Court opined that the two suits ought not to be

tried separately.

6. In the facts of this case, the outcome of

the Probate proceeding in my opinion would have

impact on the suit for partition pending before

the Delhi High Court. Majority of the assets in

respect of which Letters of Administration has

been sought for are common to those in respect

of which partition is asked for. Of course,

grant of Letters of Administration, if ordered,

per se would not determine the title of the

testator in the assets scheduled to the

Testamentary Petition. I find from the joint

affidavit of the respondents herein filed in

support of the Chamber Summons taken out by them

in the aforesaid Testamentary Petition that they

are contending the Will to be a forged one. In

the same affidavit, the deponent of which is

Rashmi Ahluwalia, it has also been pleaded that

during the period of her marriage with the

deceased, they had purchased various properties


7. I have already observed that the

Testamentary proceeding would have direct

bearing or impact on the pending suit for

partition. If the Letters of Administration is

granted to the petitioner in the Testamentary

proceeding, then the assets of the deceased may

not remain available as the partible estate of

Pawan Kumar Singha (deceased). In the plaint of

the suit for partition, a copy of which has

been annexed to this Transfer Petition, the

properties of Pawan Kumar Singha (deceased)

have been listed in paragraph 2 thereof,

referring these assets as that of the deceased.

The character of these assets as joint property

of Rashmi Ahluwalia and the deceased, however,

has been only hinted in the affidavit taken out

in support of the Chamber Summons in the

Testamentary petition. The respondents are

contesting the petition for grant of Letters of

Administration. If the partition suit proceeds

independently and plaintiffs therein succeed,

then there would be a possibility of

inconsistent findings by two High Courts,

provided the petitioners succeed in the

Testamentary proceeding. In situations of this

nature, this Court in the cases of Balbir Singh

Wasu vs. Lakhbir Singh And Others [(2005) 12

SCC 503], Nirmala Devi (supra) and Chitivalasa

Jute Mills (supra), has directed clubbing

together of both proceedings for hearing. I am

satisfied that certain common issues would

arise for adjudication of both these

proceedings. In the written statement of the

first and second defendants in the partition

suit, the point of execution of the Will by

Pawan Kumar Singha (deceased) has been raised.

8. Ms. Mishra has argued that the suit for

partition having been instituted before the

Testamentary Petition, her client’s suit must

be allowed to proceed first and the

Testamentary Petition could be transferred to

Delhi High Court, if necessary. It is also her

submission that major portion of the assets of

the deceased lie in Delhi. A petition for

transfer under Section 25 of the Code, however,

is decided on consideration of the ends of

justice. The “First past the post” is not the

principle that can be applied in proceedings of

this nature. Thus, the view taken by the Delhi

High Court in the case of Praveer Chandra

(supra) would not aid the respondents here, as

that proceeding was founded on a different

principle embodied in Section 10 of the Code. I

am of the opinion that the Probate Court having

primacy in determining the question of grant of

Letters of Administration or Probate, it would

be expedient for the ends of justice that the

Bombay High Court, which is hearing the

Testamentary petition, should decide the suit

for partition as well. The plaintiffs in the

suit for partition are also contesting the

Testamentary Petition and they would not be

greatly inconvenienced in prosecuting the suit

before the Bombay High Court. The petitioners

claim that the Will has been executed in Mumbai

and the two attesting witnesses who have

affirmed affidavits to support the Will are

also from Mumbai. Copies of these affidavits

appear at pages 39 and 41 of the paper book

filed in connection with the Transfer Petition.

These are also factors which I have considered

in forming my opinion in favour of transfer of

the suit.

9. I accordingly direct that the suit filed in

the Delhi High Court by Rashmi Ahluwalia

registered as C.S.(O.S.) No.2888 of 2014 be

transferred from the said High Court to the

Bombay High Court. On transfer, the said suit

is to be listed before the Hon’ble Judge before

whom Testamentary Petition No.821 of 2016 is

pending adjudication. The 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.

10. The Transfer Petition is allowed in the

above terms. Interim order, if any, shall stand


11. There shall be no order as to costs.

(Aniruddha Bose)

New Delhi
Dated: 18th June, 2020


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