Case Note & Summary
In the High Court of Judicature at Bombay, Civil Appellate Jurisdiction, a miscellaneous civil application was filed under Section 24 of the Code of Civil Procedure, 1908 seeking transfer of Special Civil Suit No.837/2017 pending before the City Civil Court at Bombay to the High Court for joint trial with Testamentary Suit No.135/2016. The applicant, one of the children of late Mrs. Jer, claimed to be the sole beneficiary and executor under her will dated 22 December 2012. He had filed Probate Petition No.660/2014, which was converted into Testamentary Suit No.135/2016 after the respondents filed caveats. The dispute centred on the validity of a nomination form dated 24 May 2011 executed by the deceased in favour of her three children, including the applicant and respondents 1 and 2, in respect of shares in Respondent No.3, Gharda Chemicals Ltd. The applicant contended that the nomination was illegal and void and filed a civil suit in the City Civil Court seeking declaration and cancellation of the nomination, which was numbered as Special Civil Suit No.837/2017. The City Civil Court framed issues on 6 June 2018, and the suit reached the stage of cross-examination with a court commissioner appointed. The applicant then moved the present application arguing that both proceedings involved the common issue of validity of the nomination, and trying them together would avoid multiplicity and conflicting decisions. The respondents opposed, arguing that probate proceedings are in rem while the civil suit is in personam, the issues and parties are not common, and the civil suit was advanced while the testamentary suit was at initial stage. Respondent No.3 relied on Shakti Yezdani v. Jayanand Jayant Salgaonkar to argue that nomination does not override succession law. The court examined the scope of Section 24 CPC, noting that the power is wide but must be exercised with caution and only when common questions of fact and law have substantial bearing and parties and subject matter are same. It referred to Indian Overseas Bank v. Chemical Construction Company for the principle that necessity of justice is foundational and balance of convenience alone is insufficient. The excerpt of the judgment provided concludes with the court discussing these principles; the final operative order is not included in the extract, and therefore the decision as to whether the transfer was allowed or refused is not mentioned.
Headnote
A) Civil Procedure - Transfer of Suits - Scope and Conditions - Code of Civil Procedure, 1908, Section 24 - The applicant sought transfer of Special Civil Suit No.837/2017 from City Civil Court to High Court for joint trial with Testamentary Suit No.135/2016. The court examined that power under Section 24 CPC is wide but transfer is permissible when common questions of fact and law have substantial bearing on decision and parties and subject matter are same. Held that sine qua non for transfer is that parties and subject matter of the suit are one and the same (Paras 1, 9-10). B) Civil Procedure - Principles Governing Transfer - Necessity of Justice - Code of Civil Procedure, 1908, Sections 24-25 - Relying on Indian Overseas Bank case, the court observed that transfer power must be exercised with great caution and attentiveness in light of legitimate concern for justice. Balance of convenience in favour of a party may be one factor but not the only factor. Held that discretion cannot be imprisoned within any cast-iron formula (Paras 9-10). C) Succession and Probate - Distinction between Probate Proceedings and Declaratory Suit - Nature of Proceedings - Code of Civil Procedure, 1908, Section 24 - Respondents contended that probate proceedings are in rem whereas the civil suit seeking declaration that nomination is void is in personam. The court noted that the two proceedings may have distinct nature and the question of commonality requires scrutiny of parties and issues. Held that the outcome of civil suit may not necessarily determine grant of probate (Paras 7-8).
Issue of Consideration
Whether the relief prayed for can be granted by exercising power under Section 24 of the Code of Civil Procedure read with Rule 6 of Chapter I of the Bombay High Court (Appellate Side) Rules, 1960, in the backdrop of alleged commonality of issues between Special Civil Suit No.837/2017 and Testamentary Suit No.135/2016.
Law Points
- Section 24 CPC power is wide
- transfer permissible when common questions of fact and law have substantial bearing
- parties and subject matter must be same
- necessity of justice is foundational
- balance of convenience alone insufficient
- probate proceedings are in rem
- civil suit for declaration is in personam
- nomination does not override testamentary or intestate succession
