[Transfer Petition] SC holds “First past the post” is not the principle that can be applied in Testamentary Petition: Probate Court has primacy in determining the question relating to Will

The SC on June 18, 2020 {SHAMITA SINGHA & ANR. vs RASHMI AHLUWALIA & ANR.} held that there is primacy of the Probate Court on the question of validity of a Will. 

It was held by the Single Judge of SC, Justice Aniruddha Bose, that the outcome of the Probate proceeding would have impact on the suit for partition pending before the Delhi High Court. It was held that majority of the assets in respect of which Letters of Administration has been sought for are common to those in respect of which partition is asked for.

In present case, the petitioner before SC in Transfer Petition u/s 25 CPC sought transfer of a suit for partition. It was the case of the petitioner that Probate Court has exclusive jurisdiction in matters relating to legality of a will and for that reason, her plea is that it would be expedient that the partition suit instituted in the Delhi High Court should be transferred to the Probate Court i.e. Bombay High Court. So far as the suit in the Delhi High Court is concerned, this has been instituted prior in time, on 18th September, 2014.

The SC held that a petition for transfer under Section 25 of the Code, is decided on consideration of the ends of justice. It was held that the “First past the post” is not the principle that can be applied in proceedings of this nature.

It was held that the Probate Court having primacy in determining the question of grant of Letters of Administration or Probate, it would be expedient for the ends of justice that the Bombay High Court, which is hearing the Testamentary petition, should decide the suit for partition as well.

The SC accordingly directed that the suit filed in the Delhi High Court be transferred from the said High Court to the Bombay High Court.