- (1.) Aggrieved by order dated 23.8.2014 in Partition Suit No. 47 of 2004 whereby, the application for admitting documents of Probate Case No. 15 of 2007 has been dismissed, the present writ petition has been filed. The brief facts of the case are that, Partition Suit No. 47 of 2004 was filed for partition of the property belonging to one Thakur Das. The suit property was eventually allotted to one of his sons namely, Murlidhar Gupta in the family partition. The petitioners are legal heirs and successors of original defendant No. 1 who were substituted after his death. It is the case of the petitioners that after the death of original defendant No. 1, his wife found a copy of Will dated 14.4.2002 in his personal Almirah. The said Will was executed by late Murlidhar Gupta bequeathing his entire properties to his legal heirs including, the plaintiffs. The respondent No. 3 herein namely, Veenit Kumar Gupta who is one of the sons of original defendant No. 1, was named as executor. Subsequently, Probate Case No. 15 of 2007 was filed by Veenit Kumar Gupta.
(2.) The learned counsel for the petitioners submits that the subject-matter of the partition suit and the Will dated 14.4.2002 is similar and thus, the proceeding in Probate Case would have direct bearing on the Partition Suit No. 47 of 2004 and therefore, application dated 1.7.2014 was filed for admitting the documents of the said Probate Case, in evidence. The application dated 1.7.2014 filed by the defendant Nos. 1, 1(a), 1(b) and 1(c) reads as under:-- "1. That some of the suit properties are subject matter of Probate Case No. 15 of 2007 of the Court of District and Session Judge, Gaya in which Veenit Kumar Gupta, defendant No. 1(b) is the petitioner. 2. That the defendants have filed order sheet of Probate Case No. 15 of 07, petition of Probate Case No. 15 of 07 as also copy of the will dated 14.4.2002 executed by Murlidhar Gupta in favour of deceased Rajender Kumar Gupta, Vishal Kumar Gupta defendant No. 1(a), Veenit Kumar Gupta defendant No. 1(b), Neera Gupta defendant No. 1, Ravindra Kumar Gupta plaintiff No. 1 Sejal Gupta son of plaintiff No. 1, Reena Devi defendant No. 2, Rajani Devi plaintiff No. 2 and Sawatichandra defendant No. 1(c) which is pending for disposal. 3. That the present P.S. No. 47 of 2004 is for partition of the properties of late Murlidhar Gupta. 4. That the said documents of Probate Case No. 15 of 2007 are important piece of evidence for disposal of the suit. 5. That the said documents could not be filed earlier as the Probate Case No. 15 of 2007 was not disposed of. 6. That all those documents filed today are either public documents or admitted documents and the plaintiffs have knowledge of it."
(3.) In the affidavit in-opposition, the plaintiffs took a plea that the evidence of defendant No. 1 was closed by this Court in W.P.(C) No. 3497 of 2007. The original defendant No. 1 filed written statement on 6.8.2004 however, there is no mention of the alleged Will dated 14.4.2002 in the written statement. The plaintiff's witnesses were cross-examined by the defendant No. 1 however, no such suggestion was given to the witnesses with reference to the said Will. In the impugned order dated 23.8.2014, the trial court has noticed that earlier an application was filed by respondent No. 3 namely, Veenit Kumar Gupta on 3.12.2008 to intervene in the partition suit in which photocopy of plaint of Probate Case No. 15 of 2007 was annexed however, the intervention was not pressed and it was, accordingly, dismissed. As noticed above, in application dated 1.7.2014, the petitioners have not disclosed any reason for not bringing the aforesaid documents on record earlier. The partition suit was fixed for final hearing when the said application was filed by the petitioners. Moreover, the Probate Case has not been finally decided and therefore, mere copies of the proceeding in Probate Case would have no bearing on the partition suit. I find no infirmity in the impugned order dated 23.8.2014 and accordingly, the writ petition is dismissed.;