SACHCHIDANAND JHA,J. - (1.) THIS civil revision arises out of an interlocutory order refusing to issue warrant/proclamation under Order XVI Rule 10 of the Code of Civil Procedure (in short, CPC) in the matter of appearance of witness in a proceeding under Section 263 of the Indian Succession Act (in short, the Act).
(2.) THE petitioner filed petition for grant of probate of the Will said to have been executed by his mother Smt. Dulhin Indira Devi on 25.10.70 in his favour, under Section 276 of the Act, which was registered as Probate Case No. 22 of 1985. Ganga Prasad his father, pursuant to notice appeared in the case. It is said that on 12.7.88 the petitioner, his wife and son, on the one side and Ganga Prasad, on the other executed a deed of Panchnama authorising one Maheshwari Prasad to resolve the dispute as an Arbitrator. On 21.9.88 the said Maheshwari Prasad is said to have made an award on the basis of compromise petition dated 15.9.88 filed by the parties before him. On 7.12.88 pursuant to the award compromise petition was field in Court in the probate case. On 23.12.88 the Court, namely, 3rd Additional District Judge, Sitamarhi decreed the suit in terms of the compromise directing that the compromise petition will form part of the decree. On 26.8.89 Ganga Prasad filed petition stating, inter alia, that the Will in question was forged and fabricated; that on 27.9.88 he had sold the property (cinema hall) to one Smt. Meena Devi Sunderka and put her in possession which caused annoyance to Kedar Prasad, i.e. the petitioner, his wife and son, who with the help of their associate overpowered him and obtained his signature and LTI on several petitions without his consent under coercion. Later he learnt that one such petition was converted as compromise petition and filed in the probate case. He challenged the compromise petition as fraudulent, forged and fabricated. On these and other grounds as mentioned in the petition he sought revocation of the probate under Section 263 of the Act. Application was registered as Misc. Case No. 17/89. The case is presently in the stage of evidence.
(3.) THE petitioner in course of examination of his witnesses filed an application to issue warrant and proclamation to secure the presence of Maheshwari Prasad as well as Harikeshwar Mishra and Chandra Shekhar Jha (they are two alleged attesting witnesses of the Will). By the impugned order the Court has rejected the application observing that the question which is to be decided in the misc. case is whether the Will could have been probated on compromise without examination of the witnesses and, therefore, the persons concerned do not appear to be material witnesses.;