R. C. SHRIVASTAVA, J.

( 1 ) SMT. Bhagwati Devi widow of Kamal Prasad Sharma died on 18-12-1982 leaving two sons-Krishna Dutta Sharma (respondent) and Bhoj Dutta (father of the petitioner ). The respondent sued the petitioner and his father Bhoj Dutta for declaration of title to certain immovable property on the ground that he had inherited the same from his father. The petitioner resisted the claim and claimed title to the property under a will alleged to have been executed in his favour by Smt. Bhagwati Devi. He filed an application in the same Court for grant of probate of the will under S. 276 of the Succession Act. In the probate proceedings, the respondent filed an application for stay under S. 10 of the Civil P. C. or consolidating the probate case with the civil suit under S. 151 of the same Code. Vide order dt. 12-2-1986, the Court consolidated the suit and the probate proceedings. Being aggrieved thereby, the petitioner has preferred this revision petition.

( 2 ) THE contention of the learned counsel for the petitioner is that S. 10 ibid does not apply for the reason that the probate proceedings do not constitute a suit. In support of his contention that the proceedings do not constitute a suit, he has placed reliance on a decision of Orissa High Court in the case of Mst. Puinbasi Maihiani v. Shiba Bhue, AIR 1967 Orissa 41. There is no dispute with that proposition with regard to the contention that S. 10 applies only to suits, the learned counsel has placed reliance on a decision of Andhra Pradesh High Court in the case of Manta Subbaramayya v. Batchu Narasimha Swamy, AIR 1972 Andh Pra 186 the following observations made wherein are noteworthy. "on a plain reading of the Section, it is manifest that S. 10 is attracted only when the previously instituted proceedings and the subsequently instituted proceedings are suits. If one is suit and the other not, S. 10, Civil P. C. is not attracted. "there is no dispute with regard to this proposition as well. The consolidation of the probate proceedings and the civil suit appear to have been ordered by the lower Court in exercise of its inherent powers under S. 151 of the Code. The learned Counsel for the petitioner has, in that connection argued that the discretion exercised by the lower Court in the matter is erroneous for the reason that, in view of S. 213 of the Succession Act, the petitioner cannot establish his right or title as a legatee without obtaining probate of the Will under which the right is claimed by him. In that connection, he has referred to a decision of Full Bench of Madras High Court in the case of Ganshamdass v. Gulab Bi Bai, AIR 1927 Mad 1054. In that case, the following question was referred to the Full Bench. "can a defendant resisting a claim made by the plaintiff as heir-at-law rely in defence on a Will executed in his favour at Madras in respect of property situate in Madras when the will is not probated and no letters of administration with the Will annexed have been granted. (?)"the answer was that -"a defendant can rely on an unprobated will, provided that he does not do so in order to establish a right under the will. "therefore, it follows that a defendant cannot establish his right as an executor or legatee in any Court unless a Court of competent jurisdiction has granted probate of the will under which the right is claimed or has granted letters of administration with the Will or with a copy of an authenticated copy of the Will annexed. Their Lordships referred to S. 187 of the Succession Act of 1865 which was reproduced as S. 213 in Succession Act of 1925. That decision of the Full Bench of Madras High Court was affirmed by their Lordships of the Supreme Court in the case of Mrs. Hem Nolini Judah v. Mrs. Isolyne Sarojbashini Bose, AIR 1962 SC 1471. Referring to S. 213 (1) of the Succession Act of 1925, their Lordships concluded as follows :"this Section clearly creates a bar to the establishment of any right under will by an executor or a le

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