The delay in seeking probate does not necessarily warrant denial, and the jurisdiction for probate or letters of administration is determined by the location and value of the properties, as per the Indian Succession Act.

JUDGMENT/ORDER

1. This writ petition is filed by the petitioner in P & SC.No.84/2022 on the file of XVI Addl. City Civil and Sessions Judge (CCH-12), Bengaluru. She has challenged the order dtd. 31/10/2022 produced at Annexure 'A'.

2. Heard Smt. Rashmi George, learned counsel for the petitioner, and Sri. Joshua Hudson Samuel, learned counsel for respondent no.1 and Smt. Vishali Sri Laxmi, learned counsel for respondent no.2.

3. The material facts are that the petitioner applied for letters of administration under Sec. 231 and 232(b) of the Indian Succession Act in respect of a will executed by Mr. Edmond D'Cruz. The petitioner is one of the legatees under the will. The testator appointed the first respondent as the executor of the will and as he did not take steps immediately for obtaining probate, the petitioner approached the court for letters of administration by filing P & SC No.84/2022 in which the first respondent is a party. After the first respondent received the notice of P & SC 84/2022, he approached this court for issuance of probate by filing Probate - CP.No.6/2022. Then he entered appearance before the court below and made an application under Sec. 10 r/w sec. 151 CPC seeking stay of the proceedings in P & SC 84/2022. The court below vide its order dtd. 31/10/2022 allowed the first respondent's application and stayed the proceedings before it. Challenging the same the petitioner has approached this court.

4. It was the argument of Smt. Rashmi George that because the first respondent failed to apply for probate immediately after the death of the testator, the petitioner was constrained to apply for letters of administration as she is one of the legatees under the will. The first respondent received the notice on 19/2/2022 and entered appearance before the court on 19/4/2022. After receiving the notice, the first respondent approached the High Court for issuance of probate by filing Probate CP.6/2022 on 16/3/2022. That means, the proceedings for letters of administration initiated by the petitioner was earlier in point of time. Actually it was the duty of the executor to have obtained probate and since he failed, the petitioner had to apply for letters of administration. When the proceedings are already pending, the first respondent suppressed that fact and initiated the proceedings for probate. Since the petition filed by the first respondent is later in point of time, the court below should not have stayed the proceedings before it for letters of administration. According to Sec. 10 CPC, only the subsequent proceeding has to be stayed and in this view of the matter the court below has committed an error in staying the proceedings before it. In support of her argument she has relied on the judgments of Andhra Pradesh High Court in the case of Karri Satyanarayana and Others Vs. Pichika Veerraju and Others [1996(1) ALT 177], Delhi High Court in the case Kanta Vs. State and Another (AIR 1985 Delhi 453) and the Hon'ble Supreme Court in the case of Manohar Lal Chopra Vs. Rai Bahadur Rao Raja Seth Hiralal [1962 AIR 527].

5. Learned counsel for the respondent submitted that there is no dispute that the first respondent has been appointed as an executor. The properties comprised in the will are situate at different places comprised in the states of Karnataka and Goa, and also in Chennai. In this view, even if the District Court grants letters of administration, it will not have any effect and therefore the High Court alone is competent to issue probate. Having regard to this aspect of the matter, the trial court has stayed the proceedings before it. Though Sec. 10 CPC applies to a subsequent suit or proceeding, nevertheless under inherent powers of the court, the proceedings can be stayed. In this view of the matter the impugned order is sustainable.

6. I have perused the impugned order. I do not think that the order suffers from any infirmity. According to Sec. 10 CPC a subsequent suit may be stayed, but sec. 151 CPC can b