ORDER
S.D. Shah, J.
1. This Civil Revision Application, under Section 115 of the Code of Civil Procedure, is directed against the order below Exs. 150 and 152 in Civil Miscellaneous Application No. 11 of 1982 pending in the Court of Civil Judge (S.D.), Porbandar.
2. Civil Miscellaneous Application is filed in the Trial Court for Probate in respect of a will allegedly executed by late husband of present petitioner Shrimati Malti Vahuji. Her late husband Goswami Govardhaneshji Girdharlalji has executed a will under which the present petitioner is appointed administrator of the properties left behind by the deceased. The petitioner has therefore filed on 25-1-1982 aforesaid Application for Probate under Section (sic) of the Indian Succession Act. In response to the public notice which was issued in the newspaper one Goswami Natvargopalji Govardhandasji (since deceased) filed his objections and since he died during the pendency of the proceeding his widow present respondent No. 1 was added as respondent. Respondent No. 2 being the step son and respondent No. 3 being the step daughter of late Goswami Govardhandasji have supported the objections filed by the Respondent No. 1.
3. It must be stated at his stage that the said objector Goswami Natvarlalji Govardhaneshji (since deceased) instituted Special Civil Suit No. 8 of 1982 for partition of coparcenary properties inter alia contending that movable and immovable properties left behind by deceased Goswami Govardhanashji were ancestral properties in his hand and as son of deceased Govardhaneshji he has his share in coparcenary properties.
4. In such proceeding respondent No. 1 filed an application as Ex.150 on 15-2-1992 purporting to be an application Under Section 295 of the Indian Succession Act (hereinafter referred to as 'the said Act') to request the Court to register Civil Misc. Application for probate as a regular suit treating the applicant as plaintiff and respondents as defendants and thereafter to decide such proceeding as regular civil suit. In such application inter alia respondent No. 1 prayed that petitioner should be called upon to produce all documents and title deeds of immovable properties shown in the Schedule of the property annexed to the application for probate and/or to make discovery of the documents and to produce those documents which are in possession or custody of the petitioner.
5. The respondent No. 1 also gave another application as Ex.152 dated 20-2-1992 inter alia contending that the application for probate filed by widow of deceased Goswami Govardhaneshji as well as Special Civil Suit No. 9/82 filed by the respondents for partition of the ancestral property should be consolidated and tried together inasmuch as widow of deceased is claiming under a will and she has applied for probate while respondent are challenging the genuineness, legality and validity of the will both in their reply as well as in the substantive suit filed by them for partition of the property, and therefore issues which arise in both the proceedings between the parties are substantially the same and findings on such issues in one proceeding are likely to affect the finding in another proceeding, and therefore the application for probate as well as the special civil suit should be consolidated and tried together.
6. It is pertinent to note that such applications are given in application for probate almost after 10 years of the proceeding and the same were seriously opposed by the present petitioner. The petitioner resisted such application by contending that application for probate does not become a regular suit Under Section 295 of the said Act and that in such application the Court cannot hold inquiry about the title of the deceased over the properties left behind by him. It was also contended that the Court has only to decide the legality or validity of the will executed by the deceased. About consolidation of the proceeding it was contended by the present petitioner that in both the proceeding evidence has already begun and the parties in the proceeding were different and that the issues which were framed were also different and therefore the proceeding cannot be consolidated.
7. After hearing the learned Advocates appearing for the parties and after taking into consideration the pleadings of the parties the Id. Civil Judge (S.D.), Porbandar granted both the applications filed by the respondents as Ex. 150 and Ex. 152 by directing that Civil Misc. Application No. 11 of 1982 be numbered and registered as Regular Civil Suit Under Section 295 of the Indian Succession Act. The Court further directed that after its registration and renumbering as civil suit the application for probate shall be consolidated with. Special Civil Suit No. 9/82 and that evidence shall be recorded in Special Civil Suit No. 9/82.
8. Being aggrieved by the aforesaid order passed by the trial Court the original petitioner in probate proceeding has filed present Civil Revision Application Under Section 115 of the Code of Civil Procedure.
9. Mr. C.D. Kakkad, Id. Counsel appearing for the petitioner has in quite elaborate and lengthy submissions strenuously urged before this Court that the order passed by the trial Court is patently bad and without jurisdiction inasmuch as two independent proceedings for quite in consistent reliefs are sought to be consolidated by the trial Court so as to result into number of complications both in the nature and procedure of the proceeding as well as in final disposal of the proceeding. By reference to various provisions of the Indian Succession Act he strenuously urged before this Court that petition for probate is an independent proceeding under the said Act with very limited scope of inquiry and the nature of procedure to be followed by the Probate Court as well as the extent and the scope of inquiry to be conducted by a Probate Court is quite different from the jurisdiction of the Civil Court u/S. 9 of the Code of Civil Procedure to try and decide disputes or rights of civil nature. Since the two proceedings are absolutely independent and are governed by different statutes the consolidation of such proceeding would give rise to a large number of complex questions and would adversely affect and prejudice the rights and interest of parties. He further submitted that in the Special Civil Suit which is filed by step son of the deceased the step mother and sons and all alienees of the properties are parties who are not parties in the probate proceeding. The issues which would arise in the suit for partition of ancestral property and for setting aside alienation of the properties are quite separate and distinct issues and the cause of action for both the proceedings are also separate. He further submitted that the evidence has already commenced in the probate proceeding and that respondents have been adopting delaying tactics so that the widow of the deceased does not get probate of the will left behind by her deceased husband and that she cannot administer the property. He therefore submitted that common order of the trial Court on the aforesaid two applications being patently without jurisdiction or is one where the trial Court has acted irregularly in the exercise of its jurisdiction, the same is required to be interfered with by this Court Under Section 115 of the Code of Civil Procedure.
10. Mr. C.D. Kakkad, learned counsel appearing for the petitioner has also challenged the order of the Trial Court below Exh. 150 whereby the Trial Court has ordered that Misc. Civil Application for Probate should be treated as Regular Civil Suit as it has become contentious. The learned counsel submitted that Section 295 of the Act is merely procedural and is not substantive provision.He also referred to and relied upon certain decisions of the Supreme Court to bring home the distinction between the procedural provision and the substantive provision. He also submitted that if a petition/application for probate is ordered to be treated as Regular Civil Suit, the provisions of Indian Succession Act such as Ss. 227, 273, 294 and 307 will be rendered meaningless. He submitted that under Section 9 of the Code of Civil Procedure, a Civil Court has jurisdiction to hear Suit of a civil nature. But a proceeding of probate, in his submission, cannot be said to be a proceeding of 'civil nature' and, therefore, it cannot be treated as a regular civil suit. He incidentally referred to the decision of the Supreme Court of United States in the case of Milwankee County v. M.E. White Company (296 US 258-280) to elaborate his submission as to what are the suits of civil nature within the meaning of Section 24 of the Judicial Code in United States. In my opinion, it is not necessary to make reference to the decision of United States Supreme Court to ascertain the meaning of the words 'suit of civil Nature' because Section 9 of the Code of Civil Procedure and the decision of the Supreme Court of India thereon are very clear. Lastly, the learned counsel has contended that under Section 295 of the Act a petition for probate, on contention being raised by the opposite party, does not become a regular suit but it is ony to be treated as regular suit. In his submission when a decision is taken to treat the probate proceeding as a civil suit, the question of payment of court fee, submission of plaint and drawing of a decree would arise. It was, therefore, not permissible according to the learned counsel to treat the probate proceeding as a regular civil suit.
11. Mr. K.C. Vakharia, Id. Counsel appearing for the respondents on the other hand submitted that the Court trying petition for probate under the Indian Succession Act is ordinarily Civil Court of civil jurisdiction and the court trying special civil suit for partition of the ancestral property is also Civil Court. Since both the proceedings are relating to the properties left behind by the deceased Goswami Govardhaneshji and since the issues which would arise in the proceeding would be more or less identical and since the evidence on such issues will be more or less common it was prominently just and proper for the trial Court to decide such proceeding by consolidating the same so that inconsistent finding are not reached and common evidence is appreciated by the same judge harmoniously and uniformly so as to avoid inconsistent findings and inconsistent orders. He further submitted that a Civil Court of competent jurisdiction has always jurisdiction to consolidate two suits or proceedings if it is satisfied that dispute between the parties relate to the same properties and issues which arise in two proceedings are more or less identical and evidence to be led thereon is also more or less common. In such cases the Court has jurisdiction to consolidate two proceedings to avoid repetition of recording of evidence as well as reecording of findings on issues differently in two different proceeding. He therefore submitted that this Court has no jurisdiction Under Section 115 of the Code of Civil Procedure when the Trial Court has acted absolutely within its jurisdiction and no jurisdictional error is pointed out to this Court.
12. The Indian Succession Act, 1925 broadly divides succession into intestate and testamentary succession. The provisions of the Act dealing with testamentary succession are generally made applicable to every one in India except those who are exempted under the Act. Under Section 213 of the said Act, no right as executor or legatee can be established in any Court unless a Court of competent jurisdiction in India has granted probate of the will under which the right is claimed or has granted letters of administration with the will. An executor of the will is therefore required to obtain a probate. From the provision of Section 222, it becomes clear that probate shall be granted only to an executor appointed by the will and that such appointment may be expressed or by necessary implication. Section 227 of the Act inter alia provides that probate of a will when granted establishes the will from the death of the testator and renders valid all intermediate acts of the executor as such. This section thus enacts that vesting of the properties takes place on the taking of probate to relate back to the time of testator's death.
This section is a condensed statement of English Law which regards probate as the authentic evidence of the will itself from which the executor derives its title and by virtue of which the property of the testator vests in him from the death of the testator.
13. It is now Well established general observation that the probate granted by a competent Court is conclusive evidence of the validity of such will until it is revoked and no evidence can be admitted to impeach it except in a proceeding taken for revoking the probate. Where the citation has been issued to the interested persons and has been served upon them, their failure to enter a caveat to contest the proceedings would preclude them from contesting the validity of the will in every proceedings. (See Smt. Rukmani Devy v. Narendra Lal Gupta, AIR 1984 Supreme Court 1888). It is also well established that a probate granted by a court of competent jurisdiction is conclusive evidence of the testamentary capacity of the testator as well as of the factum of its due execution and validity of the will. A probate is also conclusive as to the representative title of the executor. A probate is never conclusive about the construction or interpretation of the will nor does it determine the question of title to the property disposed of by the will. A probate is also not conclusive as to the right of the testator to dispose of the property.
14. A Probate Court is a Court of conscience and it does not decide the rights between the parties. A Probate Court has to deliver a judgment which would become a judgment in rem and this judgment will bind not ony the parties before it but the whole world. In the case of Kalyanchand Lalchand v. Sitabai Dhanasa, reported in AIR 1914 Bombay 8 a Full Bench of the Bombay High Court has held that contentious probate proceedings being required to be in the form of suits under Section 295 of the Act, constitute 'suits' under Section 11 of the Code of Civil Procedure and a finding by a Probate Court in such proceedings operated as res judicata under Section 11 as between the parties thereto. The probate proceedings must take the form as nearly as may be of a suit according to the provisions of the Civil Procedure Code, in which the petitioner for probate or letters of Administration shall be the plaintiff, and the person who may have appeared to oppose the grant shall be the defendant. There is no definition of the word 'suit' either in the Civil Procedure Code or in the General Clauses Act and, therefore, the Full Bench held that contentious probate proceedings must take the form of a suit. A judgment as a rule affects only the parties thereto and their privies. Judgments is rem form an exception to this rule and are valid not only inter partes but against all the world. Sections 40 to 44 of the Evidence Act deal with the relevancy of judgments of courts of justice. Section 41 deals with final judgments, decrees or orders of competent courts in the exercise of probate, matrimonial adminaralty or insolvency jurisdiction or what are known as judgments in rem and in states that such judgments, decrees or orders are conclusive proof of the matters specified in the Section and by Section 4 of the Evidence Act, evidence cannot be allowed to disprove the facts established by such judgments. In any probate proceeding prosecuted to the final judgment, that judgment, whether for or against the will is a judgment in rem and, if against the will, takes away the legal characters of all those claiming to be executors and legatees under it, as conclusively as a judgment for the will confer such character upon them. The judgments in rem are nothing but a part of the law of res judicata. Just as every judgment inter partes upon the same materials is res judicata between them and their representatives. So in a special class of cases the judgment is res judicata not only inter partes but extra partes contra mandum. Therefore, in 'every case, where thejudgment is in rem, if it would have been res judicata inter partes, it is also res judicata against all the world.
15. Section 276 of the Act provides that an application for probate or for letters of administration shall be made with the will and it shall contain the details set out in Clauses 'a' to 'e'. Under Section 280 such petition is required to be signed and verified by the petitioner. Under Section 281 of the Act, the petition for probate is also required to be verified by at least one of the witnesses to the will. Section 283 of the Act deals with the powers of the District Judge, which include the power to examine the petitioner in person upon oath or to require further evidence of the due execution of the will and he can issue citations calling upon all the persons claiming to have any interest in the estate of the deceased to come and see the proceedings before the grant of probate. The person objecting to the grant of probate has right under Section 284 to lodge caveat against the grant of probate. Once the caveat is entered to the grant of probate, it becomes incumbent upon the court to hear such caveater and a District Judge or his delegate shall not grant probate in which there is contention as to the grant.
16. The functions of the probate court are (1) to see that the will has, been actually executed by the testator in a sound disposing state of mind without exersipn or undue influence, and (2) that it has been duly attested. The probate court is also required to decide as to whether the document js of a testamentary character and whether the person applying for probate is entitled to be constituted the legal representative of the deceased. The primary function of the probate court is therefore to ascertain and deal with the factum and due execution of the will. It has no jurisdiction to go into the question of validity of the provisions of the will nor has the probate court the jurisdiction to decide the question whether the testator had or had not power to dispose of the property which he purports to dispose of by his will, It therefore becomes clear that jurisdiction of the probate court is a limited jurisdiction. It cannot go into the question of power of the testator to dispose of the properties nor can it construe the will or testament so as to determine the question of title to the property. It is not the province of the testamentary judgment to determine whether the property covered by the wilil was the property of the deceased or not or was the joint property belonging to the deceased and some other person. It is thus clear that the Probate Court will not go into the question as to whether property disposed of by the will was a joint or ancestral property or the self acquired property of the testator or as to whether the testator had title over the property. The only question which the probate court has to determine is as to whether the document for which probate is sought is one which is in fact disposing of the property. It is only for the purpose of determining as to whether the document is of dispositive effect that the probate court would refer to the provisions of the will. In this connection reference can also be made to Section 273 of the said Act which provides for conclusiveness of probate or letters of administration. The probate shall have the effect over all the property and estate, movable and/or immovable, of the deceased, throughout the state in which the same is granted and it shall be conclusive as to the representative title of the deceased.
17. Before parting with the discussion on this issue I would like to refer to the decision of Division Bench of Madras High Court to which reference was made by Mr. C. D. Kakkad, Id. Counsel appearing for the petitioner. In the case of Alagammal v. V. Radhammal, reported in : AIR1992Mad136 . The Division Bench of Madras High Court speaking through Justice Nainar Sunderam (as His Lordship then was) held that a decision of a probate court on the question of validity, genuineness and due execution of will is judgment in rem and cannot be attacked in courts of ordinary civil jurisdiction. In the said decision a compari-sion between the jurisdiction of Civil Court and a probate court was undertaken and in para 7 thereof the Court observed as under (at page 138):
Para 7:
'As between the decision rendered by an ordinary Civil Court and the decision rendered by a Probate Court, on the question of truth, validity, genuineness and due execution of a will, the decision of the Probate Court is a judgment in rem, which will bind not only the parties before it, but the whole world is a well accepted proposition, which does not admit of any dispute. The decision of the ordinary civil Court, dealing with the same issue, would not constitute a judgment in rem. Such is the sanctity annexed to the decision of the Probate Court, which is a Court of exclusive jurisdiction. The Probate Court is a Court of conscience. It applies its mind to find out as to whether the document put forth in the last will or codicn of the deceased. It must arrive at the satisfaction as to the due execution of the document. It must be satisfied as to the testamentary capacity of the deceased. It is an exclusive court dealing with probate matters in contract to the ordinary Civil Court, which is concerned only with deciding rights between parties. The probate Court does not decide rights between parties. Onee the probate Court renders its decisions, that will take precedence on the relevant questions, over the decisions of the Courts of ordinary civil jurisdiction at all levels and will be binding on proceeding pending before such Court. Those principles are so well known, we do not think we should cite authorities for them.'
It is true that a Probate Court is an exclusive Court dealing with probate matters and deciding issues which squarely fall within its jurisdiction. On the other hand the ordinary civil court is not a court of limited jurisdiction. Such a Court is dealing with civil rights of the parties. The probate Court does not decide the civil rights of the parties. However, the question which exclusively fall within the jurisdiction of the Probate Court, viz. as to whether the document put forth is the last will or codicil of the deceased and as to whether such last will or codicil was duly executed and as to whether the testator was possessing the testamentary capacity can be decided by Probate Court only and on the aforesaid issues the decision of a Probate Court, being the Court of exclusive jurisdiction, shall take precedence and it shall be binding on the Court of ordinary civil jurisdiction at all levels.
17A. In the case of Chiranjilal Shrilal Goanka v. Jasjit Singh, reported in : [1993]2SCR454 the Supreme Court of India has made pertinent observations about the nature of Probate proceeding in the following words:
'The Succession Act is a self-contained code insofar as the question of making an application for probatee, grant or refusal of probate or an appeal carried against the decision of the probate court. This is clearly manifested in the fascicule of the provisions of the Act. The probate proceedings shall be conducted by the probate court in the manner prescribed in the Act and in no other ways. The grant of probate with a copy of the will annexed establishes conclusively as to the appointment of the executor and the valid execution of the will. Thus it does no more than establish the factum of the will and the legal character of the executor. Probate court does not decide any question of title or of the existence of the property itself.
After referring to the various provisions of the Indian Succession Act and the various decisions of the various High Courts Justice K. Ramaswamy speaking for the Court observed as under:
'.....the probate court has been conferred with exclusive jurisdiction to grant probate of the will of the deceased annexed to the petition (suit); on grant or refusal thereof, it has to preserve the original will produced before it. The grant of probate is final subject to appeal, if any, or revocation if made in terms of the provisions of the Succession Act. It is a judgment in rem and conclusive and binds not ony the parties but also the entire world. The award deprives the parties of statutory right of appeal provided under Section 298. Thus the necessary conclusion is that the probate court alone has exclusive jurisdiction and the civil court on original side or the arbitrator does not get jurisdiction, even if consented to by the parties, to adjudicate upon the proof or validity of the will propounded by the executrix, the applicant.'
17B. Thus it becomes abundantly clear that the issues which fall for determination of the probate court are to be tried by the probate court alone, and that Civil Court has no jurisdiction to deal with such issues. No amount of consent can also permit the Civil Court to deal with the issues which exclusively fall within the domain of the probate court.
18. With these general observations, first submission of Mr. C. D. Kakkad about treating the probate application as Regular Civil Suit is required to be considered. It would be necessary first to refer to Section 295 of the Indian Succession Act, which is reproduced hereunder:
Section 295:
Procedure in contentious cases -- In any case before the District Judge in which there is contention, the proceedings shall take, as nearly as may be, the form of a regular suit, according to the provisions of the Code of Civil Procedure 1908, in which the petitioner for probate or letters of administration, as the case may be, shall be the plaintiff, and the person who has appeared to oppose the grant shall be the defendant.'
The proceeding for the grant of probate or letters of administration may take the form of a suit. They do not become in all cases a Regular Suit within the provisions of the Code of Civil Procedure. In any case where the contentions are raised about the capacity of the testator and about the fact as to whether he was in sound and disposing state of mind when he made the will, and whether the will was duly executed and attested, the proceeding become contentious. In absence of any contentions being raised it is open to a probate Court to decide the matter in a summary way by accepting the affidavit evidence. Once the proceeding becomes contentious Section 295 provides that they shall take, as nearly as may be, the form of a regular suit. The word 'as nearly as may be' undoubtedly suggest that as far as possible such proceeding is to be treated as a suit governed by the provision of the Code of Civil Procedure. All the incidence of a suit will attach to such proceeding. The petitioner becomes the plaintiff and the caveator or objector becomes the defendant. It is no doubt true that in such proceedings the issues which the Court is required to try are limited, viz. about the capacity of the testator as to whether he was of sound and disposing state of mind when he made the will and secondly as to whether the will was duly executed and attested.
19. At this stage it would be necessary to make reference to Section 268 of the said Act. The said Section reads as under:
Section 268:
'Proceedings of District Judge's Court in relation to probate and administration -- The proceedings of the Court of the District Judge in relation to the granting of probate and letters of administration shall, save as hereinafter otherwise provided, be regulated, so far as the circumstances of the case permit, by the Code of Civil Procedure, 1908.'
From the aforesaid provisions it becomes clear that in a probate proceeding as far as the circumstances of the case permit, the same shall be regulated by the Code of Civil Procedure. When this provision is read with Section 295 of the Act which cannot be said to be a provision 'providing otherwise' such proceeding is treated as a regular suit in which the petitioner shall be the plaintiff and the caveator shall be the defendant. In my opinion the present controversy is finally concluded by the decision of the Division Bench of this Court in case of Bai Jabu Khima v. Anardas Balakdas, reported in : AIR1967Guj214 . Justice of P. N. Bhagwati (as His Lordship then was) speaking for the Division Bench, was called upon to decide as to whether a Civil Judge (S.D.) who is District delegate can grant letters of administration in contentious application Under Sections 295 and 296 of the Succession Act, 1925. After referring to the Notification of the Bombay High Court dated 30-7-1948 conferring the powers of a District Judge on all Civil Judges of Senior Division, the Division Bench held that a Civil Judge can entertain contentious application for letters of administration. While dealing with Section 295 of the Act the Court observed as under: (at page 218)
'There can be no doubt that when a case is a non-contentious one the Judge hearing an application for probate or letters of administration can act on affidavits. Order 19, Rule 2 of the Code of Civil Procedure provides that upon any application evidence may be given by affidavit, but the Court may at the instance of either party, order the attendance for cross-examination of the deponent. The Judge hearing an application for probate or letters of administration may, therefore, allow evidence to be given by affidavits and acting on such evidence given by affidavits, grant probate or letters of administration. But where a contention is raised against the grant of probate or tetters of administration and the case becomes a contentious one, this procedure, we are afraid, cannot be followed by the Judge. When a contention is raised, Section 295 of the Indian Succession Act says, 'the proceedings shall take, as nearly as may be, the form of a regular suit, according to the provisions of the Code of Civil Procedure, 1908, in which the petitioner for probate or letters of administration, as the case may be, shall be the plaintiff and the person who has appeared to oppose the grant shall be the defendant. The application is, therefore, converted into a suit as soon as a contention is raised and the same procedure is then required to be followed as is prescribed for a suit under the Code of Civil Procedure. Now it is elementary that in a suit the evidence of witnesses must be taken viva voce and affidavits cannot take the place of oral evidence.'
From the aforesaid observation it becomes clear that on contention being raised a probate proceeding is to be converted into a regular suit and it is to be tried as such. In the present case admittedly the contention is raised by the caveator and, therefore, such proceeding is to be regarded as civil suit. It should be stated that such a proceeding is to be treated as civil suit and is to be decided as such Under Section 295 read with Section 288 of the said Act. However, the limitations or restrictions under which the probate Court is acting shall remain and the Civil Court even while trying the proceeding as civil suit shall act within its limited jurisdiction. To same effect are the decisions of other High Courts and for the purposes of present controversy I do not think it is necessary to extensively refer to such decisions.
20. I am therefore of the opinion that the order of the trial Court granting application at Ex, 150 is absolutely legal and proper and does not call for any interference of this Court
under Section 115 of the Code of Civil Procedure. When the Legislature itself has provided by positively enacting Sections 295 and 288 of the said Act that on contention being raised the proceeding shall be treated as regular civil suit and that the provisions of the Code of Civil Procedure shall apply to such proceeding. I fail to understand the submissions of Mr. C. D. Kakkad, Ld. Counsel appearing for the petitioner as to how other provisions of the said Act will be rendered meaningless. In fact after going through the provisions of Sections 227, 273, 294 and 307, I do not find that any of the said provisions would be rendered meaningless by converting the probate proceeding into a civil suit.
CONSOLIDATION OF SUITS
21. By an application at Exh. 152 the respondents also applied to the Court that application for probate after being treated as regular civil suit should be consolidated or jointly tried with Special Civil Suit No. 9/82 and such application is also granted by the trial Court by the impugned judgment and order. Mr. C. D. Kakkad, Id. Counsel appearing for the petitioner has strenuously urged before this Court that a proceeding for probate even after it is ordered to be treated as a Regular Civil Suit u/S. 295 of the Indian Succession Act cannot be ordered to be consolidated with Civil Suit filed by the caveator or other persons claiming an interest adverse to the applicant in probate proceeding inasmuch as two proceedings are of different nature. In his submission probate proceedings are of exclusive nature. It could be tried by probate Court and issues which could be decided by probate Court cannot be decided by the Civil Court. He further submitted that finding on such issues recorded by the Court will have precedence over the finding which may be reached by the Civil Court and therefore consolidation of proceeding of this nature was not permissible. He further submitted that issues which would arise before the probate Court in probate proceeding are limited and the same may not arise in the civil suit and even if they arise in ciivl suit, the finding of the probate Court on such issues shall be final. He also submitted that in the present suit parties are also different and cause of action for two proceedings is also different, and therefore, the order of consolidation passed after 10 years of pending proceeding should not be upheld. He also submitted that evidence has commenced in both the proceedings. He, however, fairly stated that only formal examination in chief is in progress. He therefore vehementally submitted that the trial Court was not justified in consolidating the probate proceeding with the civil suit.
22. It is true that the Court of probate is only concerned with the question as to whether the document put forth as last will and testament of a deceased person was duly executed and attested in accordance with law and whether at the time of such execution the testator had sound disposing state of mind. The question whether a particular bequest is good or bad is not within the purview of the probate Court, vide decision in the case of Ishwardeo Narain Singh v. Sm. Kanta Devi, reported in : AIR1954SC280 and in the case of Alagamal v. V. Rakkammal, reported in : AIR1992Mad136 . It is thus clear that probate Court is a Court of exclusive jurisdiction with respect to certain issues which squarely fall within its jurisdiction. As stated hereinabove in probate proceeding the only issues for trial are (a) whether the testator was of sound and disposing state of mind when he made the will, and (b) whether will was duly executed and attested. The jurisdiction of the probate Court is exclusive with respect to the aforesaid issues and its finding on the aforesaid issues is conclusive. The probate is conclusive as to the due execution of the will and as to the genuineness of the will and the appointment of executor. So long as grant of probate stands the will is required to be considered as genuine. A probate Court is not competent to go into the question of title. Therefore, a probate proceeding even though it is contentious cannot go beyond its exclusive domain and to that extent submission made by the Id. Counsel appearing for the petitioner shall have to be considered in proper perspective.
23. It is not disputed before me that the first proceeding was civil miscellaneous application or petition for probate which was filed by the widow of the deceased Goswami Govardhaneshji. The opponent No. 1 herein was caveator and/or objector who raised contentions both about the genuineness of the will as well as about the sound and disposing state of mind of the deceased. The objector has also raised disputes about the title of the deceased over the property sought to be disposed of by the will. The objector has also claimed that the property in question was ancestral property in the hands of the deceased, and was therefore not liable to be bequeathed by a will. The second proceeding being a special civil suit for partition of the properties left behind by the deceased by metes and bounds and for allotment of the respective share to the coparceners is filed by the present opponent No. 1 and in such suit over and above the question of Validity of the will, the question of title of the testator and about the nature of the property shall have to be gone into by the Court of Civil Judge (S.D.). In the present case it is not disputed before this Court that Court of Civil Judge (S.D.), Porbandar is the only Court which is competent to try both, the probate application as well as the special civil suit.
24. From the nature of the aforesaid two proceedings it can be said that some of the issues which arise in both the proceedings as regards capacity of the testator at the time when he made the will and as regards due execution and attestation of the will and as regards consideration of allegedly suspicious circumstances surrounding the will, common question of facts would arise in both the proceedings and evidence in both the proceedings would be common. However, the evidence as regards nature of the property as to whether it was self-acquired or ancestral and as regards title of the testator over it and also as regards availability of such property for partition by metes and bound would be the questions which would arise in special civil suit only.
25. In the aforesaid situation the question which this Court is called upon to consider is as to whether the aforesaid two proceedings can be consolidated so as to direct the Cour to record the evidence in special civil suit and to decide the petition for probate along with special civil suit. The trial Court has, by impugned order below Ex. 152, ordered consolidation of the two proceedings and it is this order which is required to be examined.
26. It is true that the Civil Procedure Code does not provide for joint trial of the suits, but at the same time it is now well accepted position of law that Under Section 151 of the Code of Civil Procedure in appropriate cases an order for consolidation of the cases can be made. The Courts have even ordered joint trial of the cases. A Court has inherent power ex debito justitiae to consolidate suits, where it is in the ends of justice to do so to avoid needless expenses and inconvenience to parties. In deciding whether two or more suits should be consolidated or not, the whole question is whether or not, in the long run, it will be expeditious and advantageous to all concerned to have the two suits tried together as analogous cases. Where it appears that there is sufficient unity, or similarity in the matter in issue in the suits or that the determination of the suits rests mainly on a common question, it is convenient to have them tried as analogous cases.
27. In the case of M/s. Sohal Engineering Works v. Rustom Jahangir Vakil Mills Co. Ltd., reported in : AIR1981Guj110 , Justice A. M. Ahmadi, (as His Lordship then was) after conjoint reading of Sections 10 and 151 of the Code of Civil Procedure held that the object of Section 10 is to prevent Courts of concurrent jurisdiction from adjudicating upon parallel litigations between the same parties having the same matter in issue with a view to avoiding conflict of decisions. The policy of the law is that if the matter in issue in two parallel suits is identical in the interest of judicial comity, the Court in which the subsequently instituted suit is pending shall stay the proceedings and allow the previously instituted suit to proceed. The key words in the section are : 'the matter in issue is directly and substantially in issue' in the previously instituted suit. However, it may happen that the field of controversy of two suits or proceedings cannot be said to be wholly identical though it may over-lap. In such type of cases very often the major part of the evidence that to be led is common and appreciation of evidence by the Court should also be one or uniform. Therefore, when the two proceedings which arise out of the same transaction or where substantial evidence which is to be led is common, a joint trial of such proceeding is advisable so that considerable public time and expenses would be saved if the two proceedings are tried jointly and the evidence is recorded in one of the two proceedings. It would also avoid inconvenience to the witnesses figuring in the two proceedings as they will not be required to reappear to give evidence in another proceeding. That would also be helpful to avoid multiplicity in the trial of the same issues and to avoid conflict of decision. When the same evidence or practically the same evidence is to be appreciated and finding of facts are to be reached after appreciating such common evidence and when the decision on issues are interdependent it is desirable that the suits are jointly tried by recording evidence in one suit. However, at the same time it shall have to be kept in mind that the jurisdiction of the Court in contentious probate proceeding is exclusive and limited and for the issues which squarely fall within the jurisdiction of the probate Court, the judgment of the probate Court would operate as res judicata. Therefore, in my opinion it would be just and proper to see that the probate Court proceed with the issues which exclusively fall within its jurisdiction. Once the evidence is recorded on the issues which exclusively fall within the jurisdiction of the probate Court, the Court shall proceed to record evidence on issues which arise in the special civil suit and which do not fall within the jurisdiction of the probate Court. It may be that issues may over-lap, but it would be necessary to see that the applicant in probate proceeding is called upon to begin evidence and evidence is recorded on all the issues to the parties proceeding first in point of time and thereafter the evidence is recorded in the special civil suit.
28. Ordinarily since judgment in the probate proceeding is judgment in rem it would be appropriate for the Court to direct the Court to dispose of the probate proceeding first in point of time and to stay the civil suit till probate proceeding is decided. However, in the facts and circumstances of this case since the probate proceeding as well as special civil suit are of the year 1982 and since the period of more than 11 years has already elapsed in my opinion it would not be proper to interfere with the discretion exercised by the trial Court whereby the trial Court has ordered consolidation of the two proceedings. At the same time it shall have to be seen that the Court of exclusive jurisdiction acts within its exclusive jurisdiction only and therefore it shall have to be seen that the court records its evidence on issues in the probate proceeding first in point of time and thereafter proceeds to record evidence in special civil suit. The evidence shall be treated as evidence in the special civil suit itself. The Court is further directed to render separate judgment in two proceedings because as probate court it would be dealing with limited issues while as Court of ordinary civil jurisdiction it will be deciding rest of issues. Appreciation of evidence and findings reached in such proceeding would be inter-dependent and therefore it would be just and proper to record common evidence by joint trial in one suit only. At the same time with a view to seeing that exclusive jurisdiction of probate court is maintained and its judgment is regarded as conclusive with respect to the issues which it can legitimately decide, in my opinion direction to the trial court shall have to be issued to decide two proceedings by separate judgment on common evidence. Such direction would be consistent with the ends of justice and are issued in this case, more particularly in view of the fact that proceedings are very old and now to direct only probate proceeding to proceed and to stay the civil suit would lead to further delay which would defeat justice.
I do not find any substance in the objection raised by Mr. C. D. Kakkad to the effect that parties in the special civil suit are different and that evidence has also commenced in the two proceedings and therefore no order of consolidation can be passed. While agreeing with him that the proceedings are very old and are required to be finalised very soon I do not find any substance in his submission to the effect and consolidation would delay the proceeding. In fact evidence in the two proceedings has just begun i.e. it is at the stage of examination-in-chief of the first witness and such examination-in-chief is also not over. Therefore, no prejudice is likely to be caused as is suggested by Mr. C. D. Kakkad, learned Counsel for the petitioner.
28A. I do not find any substance in any of the submission made by Mr. C. D. Kakkad, learned Counsel for the petitioner except to the extent that I am partially modifying the order of the trial Court so as to direct the trial court to hold joint trial of the probate proceeding as well as special civil suit No. 9 of 1982 by recording the common evidence in the special civil suit No. 9 of 1982 and further directing that both the proceedings shall be decided by separate judgment to be delivered at the same time after considering the evidence that may be led by the parties.
29. In the result this civil revision application partially succeeds. The judgment and order of the trial Court below Exh. 150 is upheld and civil Revision application stands dismissed to that extent. The judgment and order of the trial Court below Exh. 152 is partially upheld to the extent of ordering joint trial of special civil suit No. 9 of 1982 with the probate proceeding which are ordered to be registered as regular civil suit. However, it is further directed that the trial Court shall call upon the applicant in the probate proceeding to lead evidence first on issues which legitimately arise in probate proceeding and after evidence in probate proceeding is over the plaintiff of civil suit No. 9 of 1982 shall be called upon to lead evidence on rest of the issues which arise only in special civil suit. After evidence in both the proceedings is recorded the trial Court is directed to decide both the proceedings by a separate judgment to be rendered on the same day. Rule is accordingly made absolute to the aforesaid extent. There shall be no order as to costs.