ORDER

1. The present petition is filed under Article 227 of the Constitution of India being aggrieved by the order dated 10.8.2023 passed by II ADJ, Dewas in RCS No. 101A/2021 whereby the application filed by the petitioners under section 10 of Code of Civil Procedure (hereinafter referred to as CPC), 1908 has been rejected.

2. Facts of the case are that the petitioner No.1 is widow of Late Shri Tukoji Rao Puar who is daughter in law of late Shri Krishnaji Rao Puar. Petitioner No.2 and 3 are son and daughter of late Shri Tukoji Rao Puar. The respondent Nos.1 to 3 are daughters of Shri Krishnaji Rao Puar and sisters of Late Shri Tukoji Rao Puar. It is stated that late Shri Krishnaji Rao Puar had executed a will dated 6.6.1988 thereby bequeathing all his properties in favour of his son late Shri Tukoji Rao Puar, husband of petitioner No.1. On the basis of said will, the petitioners filed an application for grant of probate/letter of administration under section 276 and 278 of the Indian Succession Act, 1925 on 5.7.2018 before ADJ, Alot. The respondent Nos.1 to 3 filed reply to the probate application challenging the probate on the ground that will dated 6.6.1988 is forged and fabricated document. The respondent No.1 filed a suit for declaration, permanent injunction, mesne profits, possession and partition of ancestral and self acquired properties of Late Shri Krishnaji Rao Puar on 11.8.2021 before the principal District Judge, Dewas. The petitioners have filed an application under section 10 of CPC for stay of the previously instituted suit on the ground that matter in issue is directly and substantially in issue in both the suits and suit is between the same parties. It is argued that respondents have already disputed the will in the probate proceedings and if the proceedings of both the suits continues, then prejudice would be caused to the petitioners. It is submitted that where the issue involved in both the cases are directly and substantially the same and the parties are same, the proceedings of the trial of previously instituted suit should be stayed in the light of provisions of section 10 of CPC. In support of his submission, he has placed reliance on the following judgments :-

(i) P.V. Shethy v. B.S.Giridhar, (1982) 3 SCC 403

(iI) Padmabai v. Shaikh Shahadulla Shaikh Abdulla, (2010) 7 MHLJ 98

(iII) Balbir Singh Wasu v. Lakhbir Singh and ohers, (2005) 12 SCC 503

(iV) Manohar Lal Chopra Vs. Rai Bahadur Rao Raja Seth Hiralal, AIR 1962 SC 527

(v) Maharashra Stae Co-operative Marketing Federation Ltd.v. Indian bank, Bombay, 1996 (2) MHLJ 925

(vI) In the Goods of Lilian Singh, 194 ILR 194

(vII) C.L.Tandon Vs. prem pal Singh Rawal and ohers, AIr 1978 DEL 221

(vIII) in the matter of Arbitraion between the firm of Jail Narain Babulal v. Firm of Naraindas Janimal, AIR 196 SIND

3. Per contra, learned Senior counsel for respondents submits that respondent No.1 has filed a civil suit for declaration, permanent injunction, mesne profits and partition of ancestral and self acquired properties of Late Shri Krishnaji Rao Puar. He has further sought declaration that the Will dated 6.6.1988 is null and void. The reliefs claimed in the subsequent suit and in the probate are different and the nature of probate proceedings are entirely distinct from the suit filed by the respondents. It is also argued that probate application is only in respect of two properties which are involved in the subsequent suit. Apart from that all the parties are not same. In the suit filed by the respondents, trust is also the party which is not party in the probate application. He submitted that proceedings of probate does not decide the title between the parties and therefore considering the nature of probate the trial court has rightly rejected the application under section 10 of CPC. In support of his submission, he has placed reliance on the judgment passed by the apex Court in the cases of Kanwarjit Singh Dhillon v. Hardayal Singh Dhillon and oth