1. By this petition under Article 227 of the Constitution of India, the petitioner has assailed the order dated 29th August 2006 passed by the probate court.

2. The petitioner prayed for staying of the proceedings before the Court below by making an application under Section 10 of CPC on the ground that a suit for partition and rendition of account was pending between the same parties before the Court of learned Additional Civil Judge, Sr. Division, Amritsar and in that suit one of the issues was regarding execution of the same Will which was the subject matter of the probate petition before the Court below. The probate Court, however, dismissed the application observing inter alia that the proceedings under the Succession Act were altogether different than the proceedings before the Civil Court. The Probate Court does not function as a Civil Court and the probate Court has exclusive jurisdiction to decide about the genuineness of the Will. 2. Mere pendency of a suit for partition puts no bar for grant of probate or letter of administration under the Provisions of the Succession Act. It is settled law that probate court has jurisdiction to determine about the genuineness of the Will and whether the petitioner who applied for the probate was entitled to grant of probate of the Will or not. The order of the probate court does not decide as to title of the property mentioned in the Will and whether or not a testator had a right to bequeath the property by way of a Will or not. The court where the suit for possession and partition of the property is pending would be determining the rights of the parties qua the property. In such a suit even if a Will is produced either by plaintiff or by the defendant to claim title over any portion of the property, the Civil Court will have to adjudicate about the title of the property, whether the Will could be executed or not and whether any right was conferred by the

Will or not. While the probate court can give finding only about the genuineness of the Will.

3. I, therefore, consider that the there is no clash between the probate proceedings and the proceedings before the Civil Court, neither the probate proceedings are required to be stopped because of pendency of the proceedings before the Civil Court. The subject matter of the two proceedings are altogether different. In order to stay the proceedings, the same matter should be directly and sufficiently in issue in both the proceedings. The issues should be almost identical so that the decision in the previous suit operate as res judicata in the subsequent suit. It is not the case here.

4. I find no infirmity in the order of the trial court dismissing the application of the petitioner. The petition is hereby dismissed being without merit. No orders as to costs.

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