Case Note & Summary
The petitioners, who were opponents in Civil Miscellaneous Application No. 102/03 filed by respondents 1 to 3 under Section 276 of the Indian Succession Act, 1925 for grant of probate of the will of deceased Anandibai Kashinath Patil dated 23rd July, 1997, contested the claim by filing a written statement asserting that Anandibai died intestate and never executed any will. On 6th August, 2004, the petitioners filed an application under Section 295 of the Act praying that the probate proceedings be treated as a suit and that necessary inquiry regarding the alleged will and the question of title be conducted, and also sought transfer of the proceedings to the Civil Judge (S.D.) Panvel. Subsequently, on 5th April, 2005, the petitioners filed another application under Section 295 read with Section 9 of the Code of Civil Procedure, 1908, praying that the point of jurisdiction be framed and decided first. The District Judge, Alibag, by order dated 22nd July, 2005, rejected the said application. Aggrieved, the petitioners filed the present writ petition. The High Court heard the learned counsel for the petitioners, who argued that in view of the dispute raised, the proceedings had become contentious and must be treated as a suit under Section 295, and that Section 28A of the Bombay Civil Courts Act, 1869 required determination of pecuniary jurisdiction. The Court, however, found that Section 295 does not mandate automatic conversion of contentious probate proceedings into a suit; it merely empowers the court to treat them as a suit if it thinks fit. The District Judge had exercised his discretion and rejected the application, and the High Court found no error in that order. Consequently, the writ petition was dismissed. The Court did not delve into the merits of the jurisdiction issue under Section 28A, as the application under Section 295 was rightly rejected.
Headnote
A) Succession Law - Probate Proceedings - Section 295 Indian Succession Act, 1925 - Conversion to Suit - The petitioners, opponents in a probate application, filed an application under Section 295 to treat the proceedings as a suit and to determine jurisdiction under Section 28A of the Bombay Civil Courts Act, 1869. The District Judge rejected the application. The High Court held that Section 295 does not mandate automatic conversion; the District Judge has discretion to decide whether to treat the proceedings as a suit. The court found no error in the District Judge's order and dismissed the writ petition. (Paras 2-6)
Issue of Consideration
Whether the District Judge was justified in rejecting the petitioners' application under Section 295 of the Indian Succession Act, 1925 to treat the probate proceedings as a suit and to determine the question of jurisdiction under Section 28A of the Bombay Civil Courts Act, 1869.
Final Decision
The High Court dismissed the writ petition, upholding the order of the District Judge rejecting the petitioners' application under Section 295 of the Indian Succession Act, 1925.
Law Points
- Section 295 of Indian Succession Act
- 1925 does not mandate automatic conversion of contentious probate proceedings into a suit
- District Judge has discretion to reject application for treating probate proceedings as suit
- Section 28A of Bombay Civil Courts Act
- 1869 not applicable at preliminary stage
Case Details
2005 LawText (BOM) (09) 82
Writ Petition No. 5703 of 2005
Ms. Gauri Godse for petitioners, Mr. R. S. Ghadge for R-1 to 6
Shri Raghunath Rajaram Patil & Ors.
Harishchandra Pandurang Gaikwad & Ors.
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Nature of Litigation
Writ petition challenging the order of the District Judge rejecting the petitioners' application under Section 295 of the Indian Succession Act, 1925 to treat probate proceedings as a suit.
Remedy Sought
The petitioners sought to have the probate proceedings treated as a suit and to determine the question of jurisdiction under Section 28A of the Bombay Civil Courts Act, 1869.
Filing Reason
The petitioners, who were opponents in a probate application, disputed the will and sought conversion of the proceedings into a suit, which the District Judge rejected.
Previous Decisions
The District Judge, Alibag, by order dated 22/7/05 rejected the petitioners' application under Section 295 of the Indian Succession Act, 1925 read with Section 9 of the Code of Civil Procedure, 1908.
Issues
Whether the District Judge was justified in rejecting the application under Section 295 of the Indian Succession Act, 1925 to treat the probate proceedings as a suit.
Whether the question of jurisdiction under Section 28A of the Bombay Civil Courts Act, 1869 needed to be determined at that stage.
Submissions/Arguments
The petitioners argued that since they had disputed the claim, the proceedings had become contentious and must be treated as a suit under Section 295 of the Indian Succession Act, 1925.
The petitioners further argued that in view of Section 28A of the Bombay Civil Courts Act, 1869, it was necessary to ascertain the pecuniary jurisdiction of the court.
Ratio Decidendi
Section 295 of the Indian Succession Act, 1925 does not mandate automatic conversion of contentious probate proceedings into a suit; it merely empowers the court to treat them as a suit if it thinks fit. The District Judge has discretion in this regard, and the High Court will not interfere unless the order is perverse or arbitrary.
Judgment Excerpts
The petitioners are opponents in Civil Miscellaneous Application No. 102/03.
The said application is filed by respondents 1 to 3 under Section 276 of the Indian Succession Act, 1925 praying for grant of probate of the will of deceased Anandibai Kashinath Patil dated 23rd July, 1997.
On 6th August, 2004 the petitioners filed an application under Section 295 of the said Act, praying that necessary orders be passed for treating the probate proceedings as a suit and for necessary inquiry regarding the alleged Will and the question of title in view of the written statement filed by the petitioners.
On 5/4/05 the petitioners filed application under Section 295 of the said Act read with Section 9 of the Code of Civil Procedure praying that point of jurisdiction may be framed and decided first.
The District Judge Alibag by his order dated 22/7/05 rejected the said application and hence this writ petition.
Procedural History
Respondents 1 to 3 filed Civil Miscellaneous Application No. 102/03 under Section 276 of the Indian Succession Act, 1925 for probate of a will. Petitioners filed written statement contesting the claim. On 6/8/04, petitioners filed application under Section 295 to treat proceedings as a suit. On 5/4/05, petitioners filed another application under Section 295 read with Section 9 CPC to frame jurisdiction issue. District Judge, Alibag, rejected the application on 22/7/05. Petitioners filed Writ Petition No. 5703 of 2005 in the Bombay High Court, which was dismissed on 20/9/05.
Acts & Sections
- Indian Succession Act, 1925: 276, 286, 295
- Bombay Civil Courts Act, 1869: 28A
- Code of Civil Procedure, 1908: 9
