2025:JHHC:26170 1 IN THE HIGH COURT OF JHARKHAND AT RANCHI Misc. Appeal No.84 of 2021 ------ Sushil Kumar Singh, son of Late Mathura Prasad Singh, resident of 3, Cross Road No.3, Old T.C. Colony, B.H. Area, Kadma, P.O. and P.S. Kadma, Town Jamshedpur, District East Singhbhum .... .... …. Appellant Versus 1. Dr. Binay Kumar Singh, son of Late Hriday Narayan Singh, resident of Flat No.A-3, Boring Canal Road, neaer UdayanHospita, Patna (Bihar), P.O. and P.S. Boring Canal Road, District Patna 2. Asha Raj Kumari, wife of Late Devendra Narayan Singh, resident of H. No.B/36, Anishabad, Police Colony (Patna), P.O. and P.S. Anishabad, District Patna 3. Ajay Kumar, son of Late Devendra Narayan Singh, resident of H. No. B/36, Anishabad, Police Colony (Patna), P.O. and P.S. Anishabad, District Patna 4. General Public of Old T.C. Colony, B.H. Area, Kadma, P.O. and P.S. Kadma, Town Jamshedpur, District East Singhbhum .... .... .... Respondents CORAM: HON'BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY For the Appellant : Mr. Manjul Prasad, Sr. Advocate Mr. Akhouri Prakhar Sinha, Advocate For the Respondents : Mr. Baban Prasad, Advocate ------ Order No.10 / Dated : 29.08.2025 Instant appeal is preferred against the order dated 24.03.2021 passed in Probate Case No.17 of 2018 whereby and whereunder the probate application was rejected on the ground that earlier similar probate application was withdrawn with a prayer to file afresh, but no specific order was passed granting leave to file the probate application. 2. Learned Probate Court held that since permission to withdraw had not been granted to file afresh therefore, the subsequent probate application was barred under Order XXIII, Rule 1(4) of the CPC. 3. It is argued by the learned senior counsel on behalf of the probate applicant that the applicant was the brother-in-law (Devar) of the testatrix, whereas the respondents are brothers and sisters of the appellant. It is argued that learned Probate Court misdirected itself to have rejected the application on the technical ground which is not sustainable in view of the ratio laid down by the Apex Court in Jugeshwar Nath Sahai Vs. Jagtdhuri Prasad, AIR 1917 Patna 41(2), wherein it has been held, ”It is clearly undesirable that if any executor does improperly withdraw an application 2025:JHHC:26170 2 for Probate, he should be precluded from again undertaking the discharge of his duty in obtaining the finding of the Court on the of genuineness of the WILL”. 4. Learned counsel on behalf respondents, Mr. Baban Prasad raises no objection and does not contest the present miscellaneous appeal. Proceedings before a Probate Court is sui generis and the provisions of CPC do not apply in its absolute rigidity. It has been held in Multivahuji v. Kalindivahuji & Others, 1993 SCC OnLine Guj 66 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 only 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 S. 295 of the Act, constitute ‘suits’ under S. 11 of the Code of Civil Procedure and a finding by a Probate Court in such proceedings operated as res judicata under S. 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. (emphasis supplied). Under the circumstance, the impugned order is set aside. Miscellaneous Appeal is allowed. Interlocutory Application, if any, is disposed of. (Gautam Kumar Choudhary, J.) Anit