Rajendrajit Debbarma And Ors vs Sandeep Debbarma

The defendants in the suit being Title Suit No.177 of 2017 has challenged the order dated 16.01.2020 delivered in the suit by the Civil Judge, Senior Division, West Tripura, Agartala, Court No.1, hereafter will be referred as the trial court. The defendant-petitioners filed an application under Order XIV Rule 2 of the CPC for framing a preliminary issue to the effect that preliminary issue in respect of maintainability of the suit in view of Order IX Rule 9 of the CPC. The defendants have stated in the said application that by the probate proceeding being Misc.(P)No.06 of 2012, the plaintiff sought probate of the will. According to the plaintiff, the will is executed by one Kshanika Debbarma [since deceased] who was indisputably the owner of the suit land and as such, there is no dispute as regards her competence to execute the will. It is also not in dispute that the said probate proceeding was dismissed for non-prosecution.

By the order dated 30.08.2013 the probate proceeding as instituted by the plaintiff, in whose favour the bequest was made was dismissed for non-prosecution. According to the defendants, "the rejection of probate" has settled the question of the will as „not genuine‟. Hence, the claim of the title by the plaintiff by filing the suit is barred under Order IX Rule 9 of the CPC. But the said plea has been seriously resisted by the plaintiff by filing a written objection contending inter alia that no probate of will is required in the state of Tripura inasmuch as Section 57 of the Indian Succession Act, 1925 provides that application of the certain provisions of part-VI, Chapter-I in respect of the testamentary succession are subject to the restriction and modification that all wills and codicils made by any Hindu, Buddhist, Sikh or Jain on or after the 1st day of September, 1870 within the territories which on the said date were subject to the Lieutenant Governor, Governor of Bengal or within the local limits of the ordinary original civil jurisdiction of the High Courts of judicature at Madras and Mumbai and also to all such wills and codicils made outside those territories and limits so far relates to the immovable property within those territories or limits and to all wills and codicils made by any Hindu, Buddhist, Sikhs and Jain on or after the 1st day of January, 1872 to which those provisions are not applied by Clauses-A and B. And as such, the restriction further as imposed by Section 213 of the Indian Succession Act will not be applicable for those class of wills.

That apart, the plaintiff have contended that the causes of action for the probate proceeding and the suit are entirely different and therefore, the suit cannot be barred under Order IX Rule 9 of the CPC. By the impugned order, the trial court has observed as under :

"As admitted the plaintiff also filed one application to obtain probate in regard to the will in question which eventually got dismissed for default by the plaintiff herein.

Present suit is filed for declaration of right, title and interest on the basis of the said Will.

It is true that genuineness of the Will is in question in the present suit whereas probate relates to the proceeding which certifies a grant of administration of the estate of the testator.

But the two proceedings are different in nature and is not based on the „same cause of action‟, while probate is an application and the present proceeding is a „suit‟. Suit gets initiated only on presentation of a „Plaint‟ whereas probate is a proceeding which starts with filing of application and is certainly not a „suit‟.

The plaintiff reveals the cause of action to be different when defendant No.1 dispossess the plaintiff and supported construction work over the suit land.

This particular cause of action is way different from the cause of action upon which the application for probate is filed.

In fact going by the nature of the two proceedings it can be safely opined that the present matter is suit seeking declaration whereas application for probate is proceeding praying for certificate of administration of the estate of the testator.

It is admitted that since disposal of the probate application, the defendants did not approach for cancellation of the said Will neither any steps were taken in regard to the said Will by the defendants.

In view of the discussion made above it is opined that the present suit is not a fresh suit in respect of the „same cause of action‟ to attract order-IX Rule 9 of CPC.

Hence, the suit is found not to involve any pure question of law for dismissal so as to frame any preliminary issue.

With the above said observation the application for framing of preliminary issue stands rejected." [Emphasis added]

In this petition, the reasons provided by the trial court has been assailed by the defendants.

Mr. K.N. Bhattacharjee, learned senior counsel appearing for the petitioners has strenuously argued that the day when the order dated 30.08.2013 passed in the probate proceeding, the defendants had appeared. The dismissal order therefore was passed under Order IX Rule 8 of the CPC for non-appearance of the petitioner [the plaintiff of the suit]. Thus, the plaintiff is precluded from bringing a fresh suit in respect of [the same cause of action] but he might apply for an order for setting the dismissal aside and if the court is satisfied that there was sufficient cause for his non-appearance when the suit was called for, the court can set aside the dismissal on such terms as to the cost or otherwise, as it thinks fit and shall appoint a date for proceeding with the suit.

Mr. Bhattacharjee, learned senior counsel has further submitted that it is admitted position of fact that the plaintiff did not apply for an order to set the dismissal aside. According to Mr. Bhattacharjee, learned senior counsel that the cause of action in the probate proceeding is the same cause of action based on which the suit has been filed by the plaintiff. Hence, the suit is barred by Order IX Rule 9 of the CPC, inasmuch as, the plaintiff is expressly precluded from bringing a fresh suit by that provision.

Mr. Bhattacharjee, learned senior counsel has therefore contended that the reasons so assigned by the trial court is grossly perverse and unsustainable in law requiring interference from this court. He has referred a decision of Rajasthan High Court in Jethmal and Others versus Mst. Sakina reported in AIR 1961 Rajasthan 59. In the said report, having discussed the provisions of Order 9 of the CPC which provides the consequence of non-appearance of the party/s to a suit, it has been observed as follows on relying a decision of the Privy Council in Thakur Prasad versus Fakir Ullah reported ILR 17 All 106 (PC):

"But the whole of Chapter XIX of the Code consisting of 121 sections is devoted to the procedure in executions and it would be surprising if the framers of the Code had intended to apply another procedure, most unsuitable, by saying in general terms that the procedure for suit should be followed as far as applicable. Their Lordships think that the proceedings spoken of in Section 647 include original matters in the nature of suits such as proceedings in probates, guardianships, and so forth, and do not include executions."

According to Mr. Bhattacharjee, learned senior counsel, the leading decision of the Privy Council which is sourced in a long chain of authorities provides that excepting the execution proceeding, Order 9 of the CPC can be read with Section 141 of the CPC for purpose of charting its consequences. A reference can be made to Section 141 of the CPC which provision has been engrafted for purpose of miscellaneous proceeding. It has been provided that the provision in the CPC in regard to suits shall be followed as far as it can be made applicable, in all proceedings in any court of the civil jurisdiction. By way of the CPC (Amendment) Act, 1976 [the Act 104 of 1976] it has been explained that expression „proceedings‟ include the proceeding under Order 9 but does not include any proceeding under Article 226 of the Constitution. According to Mr. Bhattacharjee, learned senior counsel the proceeding under Order 9, Rule 9 of the CPC can by dint of Section 141 of the CPC be treated as the proceeding of the suit. In this regard, he has placed his reliance on an apex court decision in Suraj Ratan Thirani and Others versus The Azamabad Tea Co. and Others reported in AIR 1965 SC 295 where the apex court has inter alia observed as follows :

"28. A cause of action is a bundle of facts on the basis of which relief is claimed. If in addition to the facts alleged in the first suit, further facts are alleged and relief sought, on their basis also, and he explained the additional facts to be the allegations about possession and dispossession in October, 1934, then the position in law was that the entire complexion of the suit is changed with the result that the words of 0. IX. r. 9 "in respect of the same cause of action" are not satisfied and the plaintiff is entitled to reagitate the entire cause of action in the second suit. In support of this submission, learned counsel invited our attention to certain observation in a few decisions to which we do not consider it necessary to refer as we do not see any substance in the argument.

We consider that the test adopted by the Judicial Committee for determining the identity of the cause of action in the two suits in Mohammed Khalil Khan and Ors. v.Mahbub Ali Mian and Ors. (1) is sound and expresses correctly the proper interpretation of the provision.In that case Sir Madhavan Nair, after an exhaustive discussion of the meaning of the expression "same cause of action" which occurs in a similar context in para (1) of O. II r. 2 of the Civil Procedure Code, observed:

"In considering whether the cause of action in the subsequent suit is the same or not, as the cause of action in the previous suit, the test (1)75 1. A. 121. to be applied is: are the causes of action in the two suits in substance-not technically-identical?"

The learned Judge thereafter referred to an earlier decision of the Privy Council in Soorijamonee Dasee v. Suddanund: 1873 12 Beng. L.R. 304 and extracted the following passage as laying down the approach to the question :

"Their Lordships are of opinion that the term 'cause of action' is to be construed with reference rather to the substance than to the form of action...........".

Applying this test we consider that the essential bundle of facts on which the plaintiff based their title and their right to relief were identical in the two suits. The property sought to be recovered in the two suits was the same. The title of the persons from whom the plaintiff claimed title by purchase, was based on the same facts viz., the position of Md. Ismail quoad his co-heirs and the beneficial interests of the latter not being affected or involved in the mortgages, the mortgage-decree and the sale in execution thereof. No doubt, the plaintiff set up his purchases as the source of his title to sue, but if as we have held the bar under 0. IX. r. 9 applies equally to the plaintiff in the first suit and those claiming under him, the allegations regarding the transmission of title to the plaintiff in the present suit ceases to be material. The only new allegation was about the plaintiff getting into possession by virtue of purchase and their dispossession. Their addition, however, does not wipe out the identity otherwise of the cause of action. It would, of course, have made a difference if, without reference to the antecedent want of fun title in Ismail which was common to the case set up in the two plaints in Suit 58 of 1931 and Suit 18 of 1943, the plaintiff could, on the strength of the possession and dispossession or the possessory title that they alleged, have obtained any relief. It is, however, admitted that without alleging and proving want of full title in Md. Ismail the plaintiff could be granted no relief in their present suit. The question is whether the further allegations about possession in October, 1934 have really destroyed the basic and substantial identity of the causes of action in the two suits. This can be answered only in the negative. The learned Judges of the High Court therefore correctly held that the suit was substantially barred by O. IX. r. 9."

Mr. Bhattacharjee, learned senior counsel has thereupon contended that the essential bundle of facts on which the plaintiff has based his title or right to relief is identical in the said probate proceeding and the suit. His source of title is the will for which the probate was sought in the proceeding and that has been foreclosed by the order of the dismissal. Now the plaintiff is precluded from instituting a fresh suit. Hence, the trial court has erred in returning the finding that the cause of action is not the same.

Having appreciated the submission of Mr. Bhattacharjee, learned senior counsel appearing for the petitioners, this court at the outset would refer Section 12 of the CPC to understand the language and the consequence it imports under Order IX Rule 9 of the CPC. Section 12 of the CPC provides in respect of bar to further suit where a plaintiff is precluded by rules from instituting a further suit in respect of any particular cause of action. He shall not be entitled to institute a fresh suit in respect of the cause of action in any court to which the CPC applies. By Order IX Rule 9 of the CPC the legislature has provided that where a suit is wholly or partly dismissed under Rule 8, the plaintiff shall be precluded from bringing a fresh suit in respect of the same cause of action. Thus, the paramount consideration is bound to be that whether the proceeding for probate is a suit within the meaning of Order IX, Rule 9 of the CPC and whether both the proceeding and the suit are instituted on the same cause of action.

For exploring the answer, this court is persuaded to observe that when the propounder instituted the proceeding for probate of the will, the propounder is required to prove the testamentary capacity, the signature of the testator, if any, as required by law and further, to remove the suspicious circumstances before the will is probated by the competent court. This is a process for purpose of certification and the aspects which need to be proved or disproved would be material in respect of whether the will can be given effect to or not. In the suit which is under reference, the plaintiff has prayed for the following relief/s :

"i) declaring right, title and interest of the plaintiff over the suit land;

ii) evicting the defendants from the suit land;

ii(a) declare the Sale deed Vide No.1-3961 dated 01/08/2017 is null and void and also liable to be quashed, set aside and cancel.

iii) perpetually restraining the defendants from disturbing the peaceful possession of the plaintiff‟

iv) for cost of the suit."

No doubt that the declaration seeking title has relevance in respect of admissibility of the testament [the will] in view of Section 213 of the Indian Succession Act, but when Section 213 of the Indian Succession Act is read with Section 57(a)(b), the courts have opined that where the will is made by Hindu, Buddhist, Sikh and Jain and were subject to the Lieutenant Governor of Bengal or within the local limits of ordinary original civil jurisdiction of High Court of judicature at Madras and Mumbai or even made outside but relating to immovable property within the aforesaid territories that embargo contained in Section 213 of the Indian Succession Act shall apply. It stands out that if the will is made by Hindu, Buddhist, Sikh and Jain outside Madras, Bengal or Mumbai then an embargo contained in Section 213 shall not apply. In such circumstances, a civil Court cannot insist for a probated will. However, the defendants may raise all the objections in respect of the execution of the will by the testator in the suit. 10. In the considered view of this court, Mr. Bhattacharjee, learned senior counsel has misplaced his concern by referring Jethmal(supra) inasmuch as the decision of the Privy Council in Thakur Prasad (supra) has decided that the provision of the CPC in other miscellaneous proceeding except the execution proceeding shall apply and that was not the issue before the trial Court while dismissing the petition for framing the preliminary issue on maintainability of the suit in view of the provisions of Order IX Rule 9 of the CPC. The decision of the apex court in Suraj Ratan Thirani(supra) cannot be applied in the present context as the cause of action in the proceeding, even if, the said proceeding is considered as the testamentary suit is completely different. The apex court has also observed without leaving any ambiguity that the entire complexion of the suit might change if the cause of action are not the same. In Suraj Ratan Thirani (supra), the former suit was structured on the title which was acquired by purchase and on the basis of the same title, the subsequent suit was instituted. True it is that if the will is required to be probated and the proceeding for probate is dismissed for non-prosecution that might have a serious impact in respect of the claim of title on the basis of the self-same will and in all probability, the suit ought to have declared by the court that the subsequent suit as instituted is barred, if the entire relief in the subsequent suit is based on the title. In view of Section 213 of the Indian Succession Act, since, the will has been executed beyond the territories of the ordinary original jurisdiction of the High Courts of Madras, Bengal or Mumbai, the probate of will is not essential. In that circumstances, it cannot be inferred that the will have lost its effect for the order of dismissal.

Having observed thus, this court does not find any infirmity in the impugned judgment and accordingly, this revision petition filed under section 115 of the CPC stands dismissed. However, in the circumstances there shall be no order as to costs.