The probate Court has exclusive jurisdiction in the matters relating to the legality of a Will, and its decision on the validity of the Will directly impacts the partition suit. In the interest of justice, the partition suit and the Will case should be heard and adjudicated together to avoid multiplicity of proceedings and conflicting findings/decisions.

JUDGMENT :

Heard learned counsel for the petitioner.

2. No one is present on behalf of respondents despite service of notice and given sufficient opportunities thus, I am proceeding to dispose of this case.

3. The instant Civil Miscellaneous Application under Article 227 of the Constitution of India is directed against the order dated 16.05.2018 passed by learned Sub-Judge 13, Patna in Title Suit No. 301 of 2005, whereby and whereunder the petition filed by the petitioner under Section 10 read with Section 151 of Code of Civil Procedure seeking stay of a suit for partition bearing Title Suit No. 301 of 2005 was dismissed.

4. Respondents No. 1 to 5/plaintiffs filed suit for partition being Title Suit No. 301 of 2005 which is pending in the Court of learned Sub-Judge -13, Patna in which the defendants appeared and filed their written statement denying the assertions made in the plaint. The issues have been framed in the suit and the trial commenced and some of the witnesses have also been examined.

5. On 11.09.2015 the petitioner filed a petition for stay of the proceeding of the said suit under Section 10 of the Code of Civil Procedure read with Section 151 of Code of Civil Procedure to stay the hearing of the suit till disposal of the L.A. Case No. 73 of 2010 on the ground that in both proceedings subject matter is same properties. The petitioner claimed that suit property involved in Title Suit No. 301 of 2005 is also subject matter of a Will dated 01.04.2005 executed by Sheo Nandan Singh, in his favour and on the basis of the said Will, petitioner filed letter of Administration Case No. 73 of 2010 which is pending in the Court of learned Additional District Judge-IX, Patna. The said petition has been rejected by the learned trial Court vide the impugned order dated 16.05.2018.

6. Learned counsel for the petitioner submits that the learned trial Court failed to appreciate that decree in probate/Letter of Administration case is binding on the parties and accordingly to avoid multiplicity of the suit, the proceeding of title partition suit has to be stayed. Further it is stated that the learned Court below wrongly held that probate case and partition suit are filed for different purposes ignoring that properties involved in both the proceedings are the same and the decision in the testamentary proceeding on the question of validity of Will shall have direct impact on the partition suit. He has further submitted that the probate Court has exclusive jurisdiction in the matters relating to legality of a Will. If the partition suit proceeds independently and the plaintiff therein succeed, there would be possibility of inconsistent findings by two Courts, provided the petitioner succeed in the L.A. proceeding.

7. Learned counsel for the petitioner has submitted that in view of the well settled principles the suit for partition can be clubbed together with a testamentary proceeding as the decision in the testamentary proceeding on the question of validity of the Will shall have direct impact on the partition suit. He has referred and relied on the decision of the Hon’ble Supreme Court in Shamita Singha and Another Versus Rashmi Ahluwalia and Another (2020) 7 Supreme Court Cases 152 wherein the Supreme Court transferred the suit filed in Delhi High Court to Bombay High Court with direction that the suit and testamentary petition be heard by the same Judge and both the proceedings shall be heard simultaneously clubbing them together, if necessary. After referring many judgments the Hon’ble Apex Court in paragraph 10 observed that the testamentary proceeding would have a direct bearing or impact on the pending suit for partition.

8. At the time of argument, learned counsel for the petitioner then confined his prayer that both the Partition Suit and L.A. Case may be heard together, as the adjudication of the issues involved in the probate case will have a direct impact upon the suit. Learned counsel for the petitioner referred and relied upon ju