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2005 Supreme(Cal) 363
High Court Of Calcutta
Subhro Kamal Mukherjee
ASOKE KUMAR HIMMATSINGHKA - Appellant
Versus
RAJENDRA KUMAR HIMMATSINGHKA - Respondent
C. O. 753 Of 2005
Decided On : 06/07/2005
A.C.KAR, ANIRBAN KAR, D.BANERJI, PUJA DASCHOWDHURY, S.N.Malik, SANJOY KUMAR BAID
The power to grant stay is to be exercised by the Court in exceptional circumstances for ends of justice and to prevent abuse of the process of the Court.
Headnote:
STAY OF SUIT - PROBATE PROCEEDING PENDING - SECTION 151 OF THE CODE OF CIVIL PROCEDURE, 1908 - SECTION 213 OF THE INDIAN SUCCESSION ACT, 1925 - A partition suit cannot be stayed merely because a probate proceeding is pending in respect of the Will of one of the parties to the suit. The power to grant stay is to be exercised by the Court in exceptional circumstances for ends of justice and to prevent abuse of the process of the Court.
Fact of the Case:
The plaintiff filed a suit for partition of a property, claiming undivided half share. The defendants, the natural heirs and legal representatives of the deceased co-owner, filed written statements stating that the deceased left a Will and that an application for grant of probate was pending in the High Court. The plaintiff added the legatees under the Will as parties to the suit. The defendants filed an application for stay of the suit till the disposal of the probate proceeding. The trial court allowed the application and stayed the suit.
Finding of the Court:
The court held that the trial court was not justified in staying the suit. The court observed that the plaintiff was not concerned with the Will of the deceased co-owner and that the executor named in the Will was already a party to the suit. The court further observed that the heirs at law and the legatees were also parties to the suit and that there could be joint allotment in respect of the estate of the deceased co-owner.
Issues: Whether the trial court was justified in staying the suit on account of pendency of the probate proceeding?
Ratio Decidendi: The court held that the power to grant stay is to be exercised by the Court in exceptional circumstances for ends of justice and to prevent abuse of the process of the Court. In this case, the court found that there were no exceptional circumstances to justify the stay of the suit. The court further observed that the plaintiff would suffer irreparable loss and injury if the stay was continued.
Final Decision: The court set aside the order of the trial court and dismissed the application for stay. The court directed the trial court to proceed with the suit.
( 1 ) THIS is an application under Article 227 of the Constitution of India against Order No. 66 dated October 12, 2004 passed by the learned Civil Judge (Senior Division), Ninth Court at Alipore, District south 24-Parganas in Title Suit No. 100 of 1997. By the order impugned the learned Trial Judge stayed all further proceedings in the said suit till the disposal of P. L. A. No. 166 of 1995 pending before this Court.
( 2 ) TITLE Suit No. 100 of 1997 has been instituted by Asoke Kumar Himmatsinghka, the petitioner in this application, for partition of premises No. 68/1/a, purna Das Road Police Station - Lake Place, Kolkata - 700029. The plaintiff claimed undivided half share of the said premises.
( 3 ) ORIGINALLY Jamunadevi Himmatsinghka, since deceased and Siriya Devi himmatsinghka, since deceased, were the owners of the said premises in equal shares. The said Jamunadevi Himmatsinghka died on January 22, 1976. Under her Will dated January 9, 1975, she bequeathed her undivided half share in the said premises to the said plaintiff. The executor named and appointed in the said Will on January 20, 1994 duly executed a deed of assent in favour of the said plaintiff after obtaining the probate of the said Will.
( 4 ) ORIGINALLY, the said suit was instituted against Rejendra Kumar himmatsinghka, Vinod Kumar Himmatsinghka, Sreemati Sashikala Patodia and Sreemati Sashi Prabaha Saha being the natural heirs and legal representatives of the said Siriya Debi Himmatsinghka.
( 5 ) IN the said suit three sets of written statements have been filed. In the written statement filed by the defendant Nos. 1 and 4. it is stated that Siriya debi Himmatsinghka died leaving behind her Will and the said defendants nos. 1 and 4 would not acquire any interest in the suit property. It is stated that Ajay Kumar Himmatsinghka, Abhay Kumar Himmatsinghka and Shrimati niva Himmatsinghka, the wife of Vinod Kumar Himmatsinghka, are the legatees under the Will. It is, further, stated that an application for grant of probate is now pending in this Court.
( 6 ) THE defendant No 2, Vinod Kumar Himmatsinghka filed his written statement and made similar statements in the said written statements.
( 7 ) THE defendant No 3, also, filed her written statement. It is noteworthy that in the said written statement there is no whisper of the Will of the said siriya Debi Himmatsinghka.
( 8 ) THE plaintiff, in order to expedite the hearing of the suit and to avoid future controversy, applied under Order 1 Rule 10 of the Code of Civil Procedure for addition of the legatees under the Will of Siriya Himmatsinghka and the legatees have been impleaded as defendant Nos. 5 to 8 in the said suit.
( 9 ) THE added defendant Nos. 6, 7 and 8 applied in the said suit, under section 151 of the Code of Civil Procedure read with section 213 of the Indian Succession act, 1925, for stay of the said suit till the disposal of the probate proceeding in respect of the Will of the said Siriya Debi Himmatsinghka now pending before this Court. It is contended in the said application, in support of such prayers for stay, that all further proceedings in the said suit should be stayed "to avoid all further complications and for a fair and complete adjudication of the matter in dispute" and "these Defendants acquire title to the 'suit property' by virtue of the said probated Will".
( 10 ) THE learned Trial Judge by the order impugned dated October 12, 2004 allowed the said application and stayed all further proceedings in the suit till the decision of the probate case pending before this Court. The learned Judge recorded in the order that an application for grant of probate in respect of the will of the said Siriya Debi Himmatsinghka being P. L. A. No. 166 of 1995 has been pending in the testamentary and intestate jurisdiction before this Court. In passing the order impugned the learned Judge heavily relied upon a decision in the case of Amar Chandra Roy and Anr. vs. Aba
