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Supreme Court of India
Shamita Singha vs Rashmi Ahluwalia on 18 June, 2020Author: Aniruddha Bose
Bench: Aniruddha Bose
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(Non-Reportable)
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
TRANSFER PETITION (CIVIL) NO. 1531 OF 2018
SHAMITA SINGHA & ANR. ..PETITIONERS
VERSUS
RASHMI AHLUWALIA & ANR. ..RESPONDENTS
J U D G M E N T
ANIRUDDHA BOSE, J.
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
DEEPAK SINGH
Date: 2020.06.19
17:42:28 IST
Reason:
the Delhi High Court. The said suit has been
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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
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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
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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
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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.
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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
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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
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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
stayed.
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
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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
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deceased, they had purchased various properties
together.
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
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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.
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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
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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
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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.
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10. The Transfer Petition is allowed in the
above terms. Interim order, if any, shall stand
dissolved.
11. There shall be no order as to costs.
……………………………………………J.
(Aniruddha Bose)
New Delhi
Dated: 18th June, 2020
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