The probate proceeding and the partition suit stand on different footings and the decision in one shall not have an impact on the other.

JUDGMENT :

Krishna Rao, J.:

1. The petitioner being the defendant no.1 in Civil Suit No. 96 of 2020 had filed the present application praying for stay of all further proceedings in CS No. 96 of 2020 till final disposal of PLA No. 175 of 2022. pending before this Court.

2. Mr. Shounak Mukhopadhyay, learned Advocate representing the petitioner submits that the plaintiffs have filed the present suit claiming there 1/9th share each over the property left behind by the deceased Kuldeep Saha, who is the husband of the plaintiff No.1 and father of the plaintiff No. 2. He submits that the plaintiffs were well aware that the deceased Kuldeep Saha died after making and publishing his last Will and Testament dated November 26, 2016 by appointing one Mr. Sujit Guin as Executor.

3. Mr. Mukhopadhyay submitted that Mr. Sujit Guin had already filed an application being PLA No.175 of 2022 before this Court for grant of probate of the last Will and Testament of the deceased Kuldeep Saha which involves the suit property of the instant suit.

4. Mr. Mukhopadhyay submitted that the application filed by Mr. Sujit Guin for grant of probate with respect of the last Will and Testament of the deceased Kuldeep Saha, thus the present suit cannot be adjudicated conveniently unless the probate application filed by Mr. Guin is finally decided.

5. Mr. Mukhopadhyay submitted that the claim of the plaintiffs with respect of the suit scheduled property cannot be decided unless it is decided whether Kuldeep Saha died testate or intestate.

6. Mr. Mukhopadhyay submitted that validity or invalidity of the last Will and Testament of the deceased Kuldeep Saha cannot be adjudicated in the present suit.

7. Mr. Mukhopadhyay in support of his submission relied upon the following judgments :

(i) (1999) 6 SCC 632 (K.T. Lathika vs. Seth Karsandas Jamanadas).

(ii) Unreported judgement passed in CO No. 177 of 2011 (Delta International Limited vs. Mallika Investment Company Private Limited.)

(iii) 1951 SCC Online Cal 40 (Atula Bala Dasi & Others vs. Nirupama Devi & Another).

8. On the other side, Mr. Probal Kumar Mukherjee, learned Senior Advocate representing the plaintiffs submitted that the deceased Kuldeep Saha died intestate and after his death, the plaintiffs being the Class-1 heirs of the deceased Kuldeep Saha are entitled to get their respective share on the property left behind by the deceased Kuldeep Saha.

9. Mr. Mukherjee submitted that after the death of Kuldeep Saha, the defendants did not show any sympathy or concern for the plaintiffs. The plaintiffs were informed that after the death of Kuldeep Saha, all ties of the defendants with the plaintiffs had snapped and they did not recognise the plaintiffs as part of the family or as heirs of late Kuldeep Saha.

10. Mr. Mukherjee submitted that the plaintiff No.1 being the wife of the deceased Kuldeep Saha was all along a housewife and did not have any source of income and after the death of her husband the plaintiff No.1 is solely responsible for herself and her daughter, plaintiff No. 2.

11. Mr. Mukherjee submitted that the plaintiff No.1 is in dire need of money to meet their expenses for their livelihood and requested the defendant No.1 for making over the amount which the husband of the plaintiff No.1 had deposited in the joint account which the husband of the plaintiff No.1 used to maintain with the defendant No.1 but by a letter dated October 10, 2018, the defendant No.1 informed the plaintiff that the deceased Kuldeep Saha had left behind a Will dealing with all his movable and immovable property and refused to make any payment to the plaintiff No.1.

12. Mr. Mukherjee submitted that by Advocate letter dated October 15, 2018 questioned the defendant No.1 as to why the alleged executor shying away from disclosing the alleged Will, if any to the plaintiffs. The Standard Chartered Bank also refused to disburse the share of rent of Kuldeep Saha to the plaintiffs on the ground that they had a specific instruction from the defendants