JUDGMENT

Bennett, J - On 12th July 1939, an application for probate of the will of Mrs. A.E. Forbes was presented in this Court by Mrs. V. Peterson, an executrix there under. Another application for probate of the same will with a codicil thereto was presented in the Calcutta High Court on 3rd August 1939, by Mr. O.V. Forbes; brother of Mrs. Peterson. The codicil made certain changes in the disposition of the property effected by the will and substituted Mr. F.O. O'Neill as executor for Mrs. Peterson. Mr. Forbes is the other executor named in the will. A caveat was filed in the Calcutta High Court by Mrs. Peterson and the matter has now been set down by the Calcutta High Court as a contentious cause. A copy of the formal order to this effect has been filed by Mr. Forbes. It shows that his petition for probate will be deemed a plaint against the caveatrix and the affidavit filed in support of her caveat her written statement. It is also stated by Mr. Forbes that an application was made by Mrs. Peterson in the Calcutta High Court under Section 10, Civil P.C., praying for stay of proceedings in that Court on the ground that an application for probate had been made in this Court in respect of the same matter, and that this application for stay was dismissed by the Calcutta High Court. This statement is made in an application presented in this Court to-day by Mr. Forbes praying under Section 10, Civil P.C., for stay of proceedings in this Court on Mrs. Peterson's application for probate. The statement is supported by a copy of the formal order of the Calcutta High Court on Mrs. Peterson's application for stay, and the facts are admitted by her Counsel. In this Court an application has been made by Mrs. Peterson for the appointment of a Receiver and that application has been opposed by Mr. Forbes and also by Mr. O'Neill.

2. A preliminary objection has been raised on behalf of Mrs. Peterson that neither Mr. Forbes nor Mr. O'Neill has any locus standi as neither has filed a caveat. Consequently, it is contended, the objections filed by them to the appointment of a receiver and the application of Mr. Forbes for stay of proceedings under Sections 10 and 151, Civil P.C., cannot be entertained. I was informed by the learned Counsel for Mr. Forbes in answer to my inquiry why, although it was clear that Mr. Forbes did not wish probate of the will to be granted to Mrs. Peterson, no caveat had been filed, that it was not considered desirable to file a caveat, as it was apprehended that the application of Mr. Forbes for probate in the Calcutta High Court might be prejudiced thereby. I understand that the apprehension arises out of the provisions of Section 10, Civil P.C. Although Mr. Peterson's probate application was presented in this Court before Mr. Forbes application in the Calcutta High Court, there is no suit within the meaning of Section 10 until a caveat and affidavit have been filed. It was on this ground, it was suggested by the learned Counsel who appeared for Mrs. Peterson, that her application for stay was rejected by the Calcutta High Court. Once a caveat and affidavit have been filed in this Court, he also suggested, a suit between the parties will arise, dating from Mrs. Peterson's application for probate, and she will then be on stronger ground in asking for stay of proceedings in the Calcutta High Court.

3. I gave time to the learned Counsel appearing for Mr. Forbes to consider whether a caveat should not be filed by him, but after consideration he informed the Court that he did not propose to file a caveat at this stage. I accordingly heard arguments on the preliminary objection. In support of the preliminary objection I have been referred to a number of authorities showing that until a caveat has been filed and an affidavit has also been filed in support thereof there is no contentious proceeding and no suit within the meaning of Section 10, Civil P.C. In Chotalal Chunilal v. Bai Kabubai (1898) 22 Bom 261 it was observed by