The decision in the probate case would have a material effect on the partition suit, but the trial court did not commit any error of jurisdiction in rejecting the application for stay.

Navaniti Prasad Singh, J.

1. The present revision application is directed against the order dated 28-2-2005 passed by learned Sub-Judge 6th, Patna in Title Partition Suit No. 262 of 2003 rejecting the petition dated 12-1-2005 filed by defendant Nos. 3 and 4 (Petitioners here). The petitioners filed an application before the trial Court for staying the proceedings in the Title Partition Suit till the decision of Test Suit No. 2 of 2004. This has been rejected giving rise to the present revision application.

2. The facts of this case are that one Akshaybat Mishra and his wife Laganmani Kuer had only one issue i.e. daughter Madalsa Devi. Madalsa Devi had three sons namely, Nawal Kishore Mishra (since dead), Nandkishore Mishra (defendant No. 2) and Braj Kishore Mishra (Plaintiff-opposite party). The said Nawal Kishore Mishra died leaving behind three sons who are defendant Nos. 2, 3 and 4 in the said suit. It is alleged that Akshaybat Mishra was the absolute owner of the property which is the subject-matter of dispute and he had executed a Will allegedly along with his wife by which after the death of his wife the property was to devolve upon Nawal Kishore Mishra and thereafter to his heirs. It is alleged that the said Will was executed in the year 1936. The dispute presently as would appear is between the two branches of the grandson of the said Akshaybat Mishra. The dispute is between two "Natis". The Partition Suit No. 262 of 2003 was filed claiming that the property of Akshaybat Mishra should be devolved by way of inter se succession to his heirs. Soon after the said Title Suit was filed in the year 2003, a Probate case was filed before this Court under its original jurisdiction for grant of Letter of Administration on the basis of the Will of the said Akshaybat Mishra executed in 1926 (sic) while two proceedings were going on pursuant to Caveat filed in the probate proceedings before this Court. The probate case i.e. Testamentary Suit No. 6/93 was converted into Testamentary Suit No. 2 of 2004. In the Testamentary Suit an application was filed by the plaintiff of the Title Suit for staying the proceedings which was rightly rejected by order dated 12-1-2005 passed in Test Case No. 2/2004 held that the matter in the two proceedings are different. Then the present application was filed by the defendant in Title Suit for staying the title suit on the ground of pendency of Testamentary Suit. The same has come to be rejected which is order impugned.

3. Sri Sidheshwari Prasad Singh, learned Counsel appearing for the defendant-petitioners has submitted that any finding given in the Testamentary suit would have material bearing on the partition suit because the entire property which is subject-matter of the Will is also the subject-matter of the partition suit and the partition suit should not be permitted to proceed ignoring the consequence of the Will to be probated. In support of his submission Sri Sidheshwari Prasad Singh relied principally on the observation made by the Apex Court in two cases reported in 2005 (12) SCC 503 and 2005 (12) SCC 505 the latter being a case coming from this State itself. Sri Singh has also relied on an unreported Division Bench Judgment of this Court in Civil Revision No. 200 of 1988 Smt. Surya Kumari Devi V/s. Sri Aminesh Ranjan and Ors. disposed of on 22.4.1992. This Court in the said case has taken a view that probate case should be disposed of first and so long as the probate case is not disposed of proceedings of the partition suit shall remain stayed.

4. On the other hand, on behalf of the plaintiff-opposite party reliance has been placed on a Division Bench judgment of this Court reported in 1999 (1) PLJR 655 : AIR 1999 Pat 103 Smt. Tara Devi V/s. Smt. Kamla Gupta and Ors. wherein it was held that a proceeding instituted first in time cannot be stayed and if anything in terms of sec. 10, C.P.C. which is only subsequent proceeding as between the parties that can be stayed. There also the