Mina Devi vs Rohit Kishor Singh on 10 April, 2025

Patna High Court

Mina Devi vs Rohit Kishor Singh on 10 April, 2025

Author: Arun Kumar Jha

Bench: Arun Kumar Jha

          IN THE HIGH COURT OF JUDICATURE AT PATNA
           CIVIL MISCELLANEOUS JURISDICTION No.974 of 2023
     ======================================================
1.    Mina Devi W/o Late Ravindra Singh R/o Village-Chakvyas, P.O. and P.S.-
      Goraul, Dist.-Vaishali.
2.   Pinki Singh D/o Late Ravindra Singh R/o Village-Chakvyas, P.O. and P.S.-
     Goraul, Dist.-Vaishali. W/o Subodh Kumar, Present R/o-Village Lautan, P.S.
     Kastahan Dist.-Vaishali.

                                                                    ... ... Petitioner/s
                                       Versus

1.   Rohit Kishor Singh S/o late Guru Dayal Singh R/o Village-Chakvyas, P.S.-
     Goraul, Dist.-Vaishali.
2.   Ramesh Singh S/o Late Guru Dayal Singh R/o Village-Chakvyas, P.S.-
     Goraul, Dist.-Vaishali.
3.   Subodh Kumar Singh S/o Late Guru Dayal Singh R/o Village-Chakvyas,
     P.S.-Goraul, Dist.-Vaishali.
4.   Asha devi D/o Late Guru Dayal Singh, W/o Sachitanand Singh R/o Village-
     Maksudpur, P.S.-Maniyari, Dist.-Muzaffarpur.
5.   Usha Devi D/o Late Guru Dayal Singh, W/o Vishwanath Singh R/o Village-
     Maksudpur, P.S.-Maniyari, Dist.-Muzaffarpur.

                                               ... ... Respondent/s
     ======================================================
     Appearance :
     For the Petitioner/s    :     Mr.Anil Prasad Singh, Advocate
     For Respondent Nos. 1 to 3:   Mr.Prakash Chandra, Advocate
     ======================================================
     CORAM: HONOURABLE MR. JUSTICE ARUN KUMAR JHA
     ORAL JUDGMENT
      Date : 10-04-2025


                     Heard learned counsel for the parties and I intend to

      dispose of the petition at the stage of admission itself.

                      2. The petitioners are aggrieved by the order dated

      03.08.2023

passed by learned Additional District Judge-III,

Vaishali at Hajipur in Probate Case No. 25 of 2021, whereby

and whereunder the learned trial court rejected the petition filed

by the petitioners for dismissal of the probate proceeding on the
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ground of limitation and delay.

3. The learned counsel for the petitioners submits

that Will was produced for probate after 15 years of death of the

testator without making the petitioners parties. Thus the probate

was sought in suspicious circumstances. Learned counsel for the

petitioners referring to the decision of learned Single Judge of

High Court of Karnataka passed in the case of Sri Srinivas. R

Vs. Sri Srinath. R in Miscellaneous First Appeal No. 8311 of

2019 vide order dated 12.02.2020, which in turn referred to a

decision of Division Bench of the same court in the case of B.

Manjunatha Prabhu and Others vs C.G. Srinivas and Others

reported in AIR 2005 Kar. 136, which held that though Article

137 of the Limitation Act would not apply to the proceedings

filed for grant of probate or Letters of Administration with or

without the Will and may not come within the mischief of

Article 137 of the Limitation Act, yet the delay aspect is

relevant to test the genuineness of the Will propounded. The

delay in taking steps gives rise to suspicion and the longer the

delay the stranger the suspicion. Learned counsel submits that

this aspect was not considered by the learned trial court as the

Will produced for probate before the learned trial court has been

filed after 15 years of the death of the testor. The probate
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petitioners did not make the present petitioners party in the

probate case and on application for impleadment being filed on

behalf of the petitioners, the petitioners were allowed to be

made party and they filed their objection. Learned counsel

further submits that while adjudicating the probate case the

learned trial court just heard the learned counsel of the probate

petitioners on the point of limitation and on submission that the

probate petitioners were villager and resident of remote place

and were not having knowledge about legal process and hence,

the probate petition was filed after delay, the learned trial court

condoned the delay and registered probate case. When the

intervenors were made party, they raised objection before the

learned trial court which rejected the same by passing the

impugned order. Therefore, the impugned order is not

sustainable in the eyes of law and the same may be set aside.

4. Learned counsel appearing on behalf of

respondent nos. 1 to 3 submits that there is no infirmity in the

impugned order. The learned trial court has noted the fact that

issues were settled on 24.03.2022 in the probate case and the

first issue was regarding maintainability of the probate petition.

The matter has been coming up for evidence of the probate

petitioners/plaintiffs. Learned counsel further submits that the
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learned trial court rejected the claim of the present petitioners on

the ground that it was not justifiable to decide the issue of

maintainability at this stage when the matter has been coming

up for evidence of the probate petitioners/plaintiffs. The learned

trial court further held that issue on maintainability will be

decided along with other issues. Therefore, the impugned order

needs no interference.

5. I have given my thoughtful consideration the

rival submission of the parties and perused the record.

Admittedly, the learned trial court considered the issue of delay

at the time of admission of the probate petition. This order dated

06.09.2021 has not been challenged. Thereafter, it appears that

the petitioners filed an application under Section 137 of the

Limitation Act wherein it has been submitted that the testator

died on 06.10.2005 and the probate petition has been filed after

15 years of the death and therefore, the probate petition was not

maintainable. However, it appears that the learned trial court

rejected the claim and prayer of the petitioners on the ground

that the issue of maintainability was already settled as being

issue no. 1 for adjudication of the probate case and the same

would be decided along with other issues. Therefore, the

petitioners cannot claim that it should be decided as preliminary
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issue since it is an issue of law and fact.

6. Since the issue of maintainability is yet to be

decided by the learned trial court and the learned trial court is

already in seisin of the matter, I think the petitioners approached

this Court in undue haste and I find no reason to interfere with

the impugned order on merit as there is no apparent error in the

order of the learned trial court and accordingly, the impugned

order is affirmed.

7. In the result, the present petition stands dismissed.

(Arun Kumar Jha, J)

DKS/-

AFR/NAFR                NAFR
CAV DATE                NA
Uploading Date          17.04.2025
Transmission Date       NA