The Court held that a probate application cannot be disposed of merely by compromise between parties. The Court is duty-bound to determine the genuineness of the will irrespective of any private agreement allocating property, following established precedent.
The application is devoid of merit and dismissed.
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IN THE HIGH COURT OF JUDICATURE AT PATNA TEST CASE No.5 of 2014
======================================================
In The Good Of Late Smt. Nirmala Sinha
... ... Applicant
Versus
Xxxxx
... ... Respondent
====================================================== Appearance : For the Applicant : Mr. Sandhya Mishra, Advocate. For the Respondent : Mr. Raj Nandan Prasad, Advocate.
====================================================== CORAM: HONOURABLE MR. JUSTICE VIKASH JAIN ORAL ORDER
15 12-07-2019
N.R. 1 Rajesh Kumar Sinha who is full brother of the applicant has filed caveat on 28.09.2015 and thereafter objection has been filed by him on 15.10.2015.
Patna High Court TEST CASE No.5 of 2014(15) dt.12-07-2019 2/4
Complaint Case No. 1320 of 2017 preferred by the N.R. 1. The said compromise provided that the applicant/plaintiff herein would withdraw all other cases pending at Patna and Ranchi instituted by him. Such compromise agreement was taken note of vide order dated 14.11.2017 passed in Complaint Case No. 1320 of 2017 on which date the applicant herein was also physically present before the Court. It had been stated on behalf of the complainant (applicant herein) that he had entered into an agreement out of his own free will and accord and had no objection to grant of anticipatory bail to the N.R. 1.
Patna High Court TEST CASE No.5 of 2014(15) dt.12-07-2019 3/4
application.
“ ...…..It is well settled by authority that an application for probate cannot legally be disposed of by a compromise. The lase imposes on the Court itself the duty of determining whether the will is genuine or not. It is quite clear therefore that the Court acted improperly in permitting the executors to withdraw the application for probate merely by reason of the compromise which was filed. ………… O.23, R.1, Civil P.C. which says that a plaintiff may withdraw his suit or abandon a part of his claim therefore does not, in my opinion, apply to an application for Probate. It is the duty of an applicant for Probate to obtain the opinion of the Court upon the genuineness or otherwise of the will. He fails in his duty if he does not obtain the finding of the Court on the will : that being so, it is clear that the further provision in O. 23, R. 1, to the effect that if a plaintiff withdraws from a suit, he shall be precluded from instituting any fresh suit in respect of the same subject-matter, also does not apply”.
Patna High Court TEST CASE No.5 of 2014(15) dt.12-07-2019 4/4
(Vikash Jain, J)
Ibrar//-
U
2 issues framed by the court
Whether a compromise between parties can legally dispose of an application for probate without court determination of genuineness.
Whether Order 23 Rule 1 of CPC applies to an application for probate regarding the effect of withdrawal by compromise.
Colour shows how this judgement treated each authority
Jugeshwar Nath Sahai and another vs. Jagtdhuri Prasad and othersFollowed¶21
Jugeshwar Nath Sahai and another vs. Jagtdhuri Prasad and others, A.I.R. 1917 Patna 41 · Who else cites this
Good of Late Smt. Nirmala Sinha
Xxxxx
Vikash Jain
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
