Satya Narayan Prasad vs Ramshraya Prasad & Ors on 23 April, 2018

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Patna High Court - Orders

Satya Narayan Prasad vs Ramshraya Prasad & Ors on 23 April, 2018

Bench: Prabhat Kumar Jha

                    IN THE HIGH COURT OF JUDICATURE AT PATNA
                       CIVIL MISCELLANEOUS JURISDICTION No.271 of 2018
                 ======================================================
                 1. Satya Narayan Prasad, S/o Sri Sonelal Mahto, resident of Village and
                 P.O. Majhauliya, P.S. and Anchal- Sakra Sub Division and Mufassil,
                 District- Muzaffarpur.

                                                                       .... .... Appellant/s
                                                   Versus
                 1. Ramshraya Prasad, S/o Late Ramawatar Prasad, R/o Village and P.O.-
                 Dholi, P.S. Anchal- Sakara Sub Division and Mufassil Muzaffarpur East,
                 District- Muzaffarpur.
                 2. Most. Jatahi Devi, W/o Late Jittan Mahto, R/o Village and P.O.-
                 Majhaulia, P.S.- Anchal- Sakara Sub Division and Mufassil Muzaffarpur
                 East, District- Muzaffarpur.
                 3. Janaki Devi, W/o Sri Bhola Mahto, and D/o Late Jittan Mahto, R/o
                 Village- Mirapur Tole Mohanpur, P.O.- Mirapur, P.S. Anchal- Sakara Sub
                 Division and Mufassil Muzaffarpur East, District- Muzaffarpur.
                 4. Dukhani Devi, W/o Keshwar Mahto and D/o Late Jittan Mahto, R/o
                 Village and P.O.- Malpur Agrail, P.S. Anchal- Sakara Sub Division and
                 Mufassil Muzaffarpur East, District- Muzaffarpur.
                 5. Siwakali Devi, W/o Sri Bhola Prasad, D/o Late Jittan Mahto, R/o Village
                 and P.O.- Lautan Via Agricultureal College Dholi, P.S. Anchal- Sakara Sub
                 Division and Mufassil Muzaffarpur East, District- Muzaffarpur.
                 6. Manaki Devi, W/o Sri Chhotelal Mahto, and D/o Jittan Mahto, R/o
                 Village- Kubaul Ran, P.O.- Kubaul Ram, P.S.- Bangara, Anchal- Tajpur,
                 District- Samastipur.
                 7. Sonelal Mahto, S/o Late Mandil Mahto,
                 8. Satya Narayan Prasad.
                 9. Hiralal Mahto,
                 10. Banthu Mahto. All 8 to 19 Sons of Sone Lal Mahto.
                 11. Parwati Devi, D/o Sri Sonelal Mahto, All 7 to 11 R/o Village and P.O.-
                 Binda, P.S. and Anchal- Musahari, Munsifiri and Sub Division-
                 Muzaffarpur East, District- Muzaffarpur.
                 12. Smt. Nila Devi, W/o Sri Satyanarayan Prasad, R/o Village and P.O.-
                 Majhaulia Via- Chandan Patti, P.S. and Anchal- Sakra, Mufassil and sub
                 Divisional - Muzaffarpur East, District- Muzaffarpur.

                                                              .... .... Respondent/s
                 ======================================================
                 Appearance :
                 For the Appellant/s  : Mr. Pradhan Murli Manohar Pd., advocate
                 For the Respondent/s  : Mr.
                 ======================================================
                 CORAM: HONOURABLE MR. JUSTICE PRABHAT KUMAR
                 JHA
                 ORAL ORDER

2   23-04-2018

Heard the learned counsel for the petitioner. Patna High Court C.M isc. No.271 of 2018 (2) dt.23-04-2018 2/3

The petitioner has filed this petition against the order dated 15.05.2017 passed in Partition Suit No. 746 of 2013 by which the learned Sub-Judge-VII dismissed the petition of the petitioner filed under Section 10 of the C.P.C. for staying the Partition Suit No. 746 of 2013 till the pendency of Probate Case No. 73 of 2013.

Jitan Mahto executed a registered deed of will on 23.02.1993 in favour of Satya Narayan Mahto and Sheokali Devi. Satya Narayan Mahto filed Probate Case No. 73 of 2013 for probate of the will but one Ramashray Prasad purchased the land by a registered deed from two daughters of Jitan Mahto and on that basis he filed partition suit.

The learned counsel for the petitioner submits that during the pendency of probate case further proceeding in partition suit should have been stayed because Jitan Mahto has already executed a will with regard to the entire land in favour of Satya Narayan Mahto and daughters of Jitan Mahto have got no title and possession over the land and, therefore, the daughters of Jitan Mahto are not entitled to execute any sale deed.

Admittedly, Jitan Mahto got two wives. From the first wife he got three daughters and from second marriage he got two daughters. Two daughters of Jitan Mahto executed sale deed Patna High Court C.M isc. No.271 of 2018 (2) dt.23-04-2018 3/3 in favour of Ramashray Mahto and on the basis of sale deed Ramashray Mahto filed the partition suit, after death of Jitan Mahto.

In the partition suit the question is as to whether the plaintiff is entitled to get partition of the suit property by virtue of sale deed executed by daughters of Jitan Mahto but in the probate case the court has only jurisdiction to decide the genuineness of the will executed by Jitan Mahto. Therefore, the question of title of the purchaser from the daughters of Jitan Mahto cannot be decided in probate case. Hence, I find no illegality in the order by which the petition of the petitioner for staying partition suit has been rejected.

Accordingly, this Civil Misc. petition is dismissed.

(Prabhat Kumar Jha, J) BKS/-

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Patna High Court - Orders