H.C.P. Tripathi, J.
1. Appellant Balbir Singh had filed a petition for probate under Section 276 of the Indian Succession Act on 5-3-1963. On the basis of a will which was alleged to have been executed byone Gopal Narain Fadnis on 18th May 1961. Gopal Narain Fadnis died on 19-1-1963 leaving his only daughter Smt. Sulo-chana as his survivor. Smt. Sujochana filed a written statement in the case and inter alia pleaded that the application for probate was not maintainable. Issues were framed, parties led evidence and the case was argued on their behalf on several dates before the trial Judge. Before the conclusion of the arguments however an application for amendment was made by the appellant which was rejected by the Judge on 16-9-1966.
2. On 19-9-1966 an application was filed by the appellant before the District Judge, Lucknow praying that he may be permitted to withdraw the above probate application with liberty to bring any other proceeding or suit as 'he may be advised' on the ground that 'the above probate proceeding is defective for some formal defects' and 'the applicant does not want to further prosecute the above application owing to the defects and for other reasons'.
The defendant filed an objection praying that the application be rejected. After hearing the counsel for the parties at considerable length and taking into account the facts and circumstances of the case the learned Addl. District Judge inter alia observed 'that the plaintiff has not disclosed in his application the nature of the formal defect ............ and becauseof the fact that it was argued on behalf of the plaintiff that the provisions of Order 23, Rule 1 do not apply to probate proceedings I permit the plaintiff to withdraw the suit, but withhold the permission to file a fresh suit or proceeding as he may be advised.' Aggrieved by the order the plaintiff has come up in appeal before this Court.
3. I have heard the learned counsel for the parties. There can be no doubt that on the facts and circumstances of the case the learned trial Judge was fully justified in refusing permission to the plaintiff to file a fresh suit or proceeding as he may be advised. It was, however, not open to the learned Judge in law to split up the plaintiff's prayer for withdrawal of the suit with permission to file a fresh suit in two parts. He could have either accepted the application or rejected it in toto. This is obvious from the fact that the plaintiff's prayer to withdraw the probate application was based on his further prayer that he should be permitted to file any other proceeding or suit as he may be advised. It was joint prayer which could have been either accepted or rejected in toto as stated above. The trial Judge, in my opinion, had no jurisdiction to split it up in two parts and to grant one and refuse the other.
4. However, I am satisfied that the trial Judge's refusal to permit the plaintiff appellant to file a fresh suit or proceeding is fully justified. It is not necessary to interfere with that order.
5. In the case of Veeraswami v. Lakshmudu : AIR1951Mad715 it was held that 'where a plaintiff files a petition to withdraw the suit with permission to file a fresh suit regarding the same subject-matter ............ The court cannotdivide the petition into two and accept the withdrawal and refuse the liberty in the same order.'
6. In the case of Marudachala Nadai v. Chinna Muthu Nadar : AIR1932Mad155 it was held that 'an application under Order 23, Rule 1(2) for permission to withdraw from suit with liberty to institute a fresh suit on the same subject-matter must be treated as an indivisible whole, and if a party is not allowed liberty to institute a fresh suit, his pending suit should not be dismissed, but the application should be refused altogether and the suit should be retained on the file.'
7. The same view was taken by a learned single Judge of the Calcutta High Court in Kamini Kumar Roy v. Rajendra Nath, AIR 1926 Cal 233. I find myself in respectful agreement with the dictum laid in the aforesaid cases.
8. In the result this appeal is allowed in part. The order passed by the learned Additional District Judge will be varied by substituting therefor an order in these terms 'that the application for permission to withdraw the above probate with liberty to bring any other proceeding or suit as the plaintiff may be advised is dismissed with costs'. The result will be that the probate proceeding shall be restored to the file of the trial Judge who will dispose it of in accordance with law. In the circumstances of the case the parties shall bear their own costs of this appeal.