IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.14636 of 2011 Gopal Krishn Prasad Versus Smt.Chintamani Devi ---------------------------------- 02. 06.09.2011. Heard the learned counsel for the petitioner. This application under Article 227 of the Constitution of India has been filed by the defendant-petitioner against the order dated 29.06.2011 passed in Title Suit No.4 of 2010 by the 6th Addl. District Judge, Gaya whereby the learned Court below rejected the application filed by the petitioner to reject the plaint on the ground that the probate case is barred under Article 137 of the Limitation Act. By this probate case, the respondents are seeking to obtain probate with respect to a Will which is 35 years old. After amendment of the Code of Civil Procedure in the 1976, the Court is not oblige to decide an issue as preliminary issue unless the issue raised is issue of law only which relates to the jurisdiction of the Court or a bar to the suit created by any law. In the present case according to the petitioners, the suit which was originally a probate suit was converted into a title suit and, therefore, it was - 2 - obligatory on the part of the Court below to have decided the question of limitation. It may be mentioned here that so far probate case is concerned, the question only to be decided is whether the will in question is genuine or not. So far the limitation is concerned, admittedly according to Article 137 of the Limitation Act, the limitation will start to begin when right to sue accrue. So far this question is concerned, in my opinion, it is mixed question of law and fact and, therefore, the learned trial Court has rightly refused to decide this question as preliminary issue. I, therefore, find no merit in this writ application and, therefore, it is dismissed. Sanjeev/- (Mungeshwar Sahoo,J.)