IMPORTANT POINT
The main legal point established in the judgment is that while the probate proceeding may impact the shares of the parties in the partition suit, staying all further proceedings of the partition suit was not justified. Instead, the court directed that the preliminary decree in the partition suit should not be passed until the disposal of the probate proceeding to avoid conflict of decisions.

JUDGMENT :

Hiranmay Bhattacharyya, J.

1. This mater was taken up for hearing in the presence of the learned advocates for the petitioner and the opposite party no.2 and an order was dictated in open Court. Immediately thereafter, Mr. Chakrabarty, learned advocate appeared and submitted that he could not appear when the matter was taken up for hearing and prayed for giving him an opportunity of hearing. On the basis of such submission, this Court directed Mr. Chakrabarty, learned advocate, to inform the learned advocates, who made their submissions in this matter. Pursuant to the intimation being given, the learned advocates for the respective parties have appeared and are heard afresh and this civil order is decided by this order.

2. The plaintiff in a suit for partition and for other consequential reliefs have filed this application under Article 227 of the Constitution of India challenging an order dated 12th April, 2023 passed by the learned Judge, 10th Bench, City Civil Court at Calcutta in Title Suit No.786 of 2020.

3. By the order impugned, the learned Trial Judge passed an order of stay of all further proceedings in connection with Title Suit No.786 of 2020 until further orders.

4. Petitioner filed a suit for partition and for other consequential reliefs, which was registered as Title Suit No.786 of 2020 against Madhabi Ghosh and Pradip Ghosh i.e. the opposite parties herein. The opposite party no.1 herein claiming to be the executor of the last will and testament of one Prodosh Kumar Ghosh dated 22nd March, 1999, filed an application for grant of probate, which was registered as Probate Case No.51 of 2015. The said probate case was subsequently renumbered as O.C. No.5 of 2017, which is now pending before the Court of the learned Judge, 6th Bench, City Civil Court at Calcutta.

5. The opposite party no.1 filed an application under Section 10 read with Section 151 of the Code of Civil Procedure in Title Suit No.786 of 2020 praying for stay of all further proceedings of the partition suit being, Title Suit No.786 of 2020 till the disposal of O.C. Case No.5 of 2017.

6. Mr. Banerjee, learned advocate appearing for the petitioner submits that the nature of the probate proceeding and the partition suit are completely different and the proceedings are pending before different Courts. He further submits that the issues involved in the probate proceeding cannot be said to be directly and substantially in issue in the suit for partition. He submits that the pendency of probate proceeding does not have any manner of impact on the partition suit. He further submits that since the subject-matter of the suit for partition and the probate proceeding is same and identical and the parties are also same, this Court can also direct analogous hearing of the partition suit and the probate proceeding in order to avoid any conflict in decisions.

7. In support of his submission that the probate suit and the partition suit can be heard analogously, Mr. Banerjee places reliance upon the decisions of the Hon’ble Supreme Court in the case of Balbir Singh Wasu Vs. Lakhbir Singh & Ors. reported at (2005) 12 SCC 503, Nirmala Devi Vs. Arun Kumar Gupta & Ors. reported at (2005) 12 SCC 505 and Shamita Singha & Anr. Vs. Rashmi Ahluwalia & Anr. reported at (2020) 7 SCC 152.

8. Learned advocate appearing for the opposite party no.1 submits that the partition suit has been filed by the petitioner herein claiming 1/4th share in the suit property. He submits that one Nalini Ghosh was the original owner of the suit property, who died intestate leaving behind three sons i.e. Amiya Kumar Ghosh, Provat Kumar Ghosh and Prodosh Kumar Ghosh. He submits that Prodosh Kumar Ghosh had executed a will in favour of the husband of the opposite party no.1 herein and, therefore, the plaintiff/petitioner herein cannot claim 1/4th share in the suit property.

9. He further submits that the opposite party no.1 being the executor has filed an application for probate, which was filed long pr