Karnataka High Court
Betty Suresh Mahindra vs Marthanda Singh Mahindra on 22 November, 1991
Equivalent citations: ILR1991KAR735
ORDER Kedambady Jagannatha Shetty, J.
1. The petitioners have filed this Application under Section 247 of the Indian Succession Act, 1925, for appointment of an Administrator pending disposal of the main proceedings touching the validity of the Will and six Codicils of the deceased Suresh C. Mahindra for grant of Letters of Administration of the Will and six Codicils annexed with such Administrator being delegated with all the power and rights of general administration other than the rights of distributing such assets of the deceased subject to the immediate and absolute control of this Court.
2. In support of the application 1st petitioner has filed an affidavit wherein she has averred that she together with and on behalf of her two minor children have filed a petition for grant of Letters of Administration with the Will and six Codicils. The estate of late Suresh C. Mahindra is very large and of considerable value and the bulk of it is in the State of Karnataka, but lessor and some what more considerable assets in the estate are situated in the State of Tamilnadu and Maharashtra.
3. It is averred that the 1st respondent has contended against the Will and six Codicils as being bogus. He arrogated himself as the authority on the ground that he being the eldest son of the deceased Suresh C. Mahindra seeking the estate to be divided in accordance with Hindu Law of succession as on intestacy.
3.1. It is further averred that the 1st respondent, on the III-advice, is interfering with the properties of the deceased. He has also attempted to make forcible entry into properties to make unlawful gain by taking away the moveables and documents of business affairs without any reference to or in consultation with those entitled under the Will and six Codicils.
3.2. Further, it is averred that the 1st respondent is trying to dispose of the properties and even worse he has sought to handle the business affairs of the deceased, in respect of which he has not acquired knowledge and experience.
3.3. It is also averred that there are 169 Horses of considerable value which would otherwise, in the hands of the 1st respondent, be liable to incalculable loss, in addition to that already caused, depriving the 1st petitioner and her children of their legitimate entitlements.
3.4. It is further stated that the deceased has left behind very large racing establishment comprising large number of horses of which about 52 valuable horses .of the deceased and some are best known of race horses of imported breed and heritage are included in the stable; the majority of which are with Mr. Rashid Byramji, a reputed Race Horse Trainer, who is second to none in the profession and has to his credit that no other similar professional can compare and a best trainer in the Country. Mr. Rashid Byramji was intimate friend of late Suresh C. Mahindra, confidante and Adviser to him in all matters concerning his affairs and the establishment which is known as the business of "Broad acres Stud Farm."
3.5. It is stated that after the death of late Sri Suresh C. Mahindra, due to interference by the 1st respondent, all the properties and affairs of the deceased are in disarray. In fact, it is averred that due to illegal assumption of authority by the 1st respondent considerable loss and damage is caused to the estate and therefore the 1st petitioner requests that Mr. Rashid Byramji or any other professional man be appointed as Administrator pendente lite.
4. The 1st respondent objected to the appointment of Administrator pendete lite in respect of the estate of the deceased late Sri Suresh C. Mahindra, namely, the business establishment of M/s. Broadacres Stud Farm. The learned Counsel for 1st respondent submitted that the alleged will and six Codicils are bogus one and they were all got up documents. He, being the eldest son of the deceased Suresh C. Mahindra, is entitled to administer the estate and to divide the residue in accordance with law of succession as on intestacy. Further, he submitted that the 1st respondent has already filed a suit in the High Court of Bombay claiming the administration of the estate of the deceased under Hindu Succession Act. He has been managing the affairs of the estate during the life time of his late father, Suresh C. Mahindra; and even after his death, he is managing the affairs of the said estate.
He submitted that, under these circumstances, it is not just and proper to appoint any administrator pendente lite.
5. It is well settled law that Administrator pendente lite, could be appointed provided that there is a lis and the question of validity of the Will is pending in the Court in the Probate proceedings and the preservation of property until the dispute as to the validity of the existence of Will itself is decided.
6. In this case Probate proceedings is pending and the Will has been produced into the Court. The Will and six Codicils, prima facie, show that it is established that the Will and six Codicils were executed by late Suresh C. Mahindra. The bulk of the estate is situated in M/s. Broadacres Stud Farm, is within the jurisdiction of this Court. As per the Will, the 1st petitioner and her two minor children are the beneficiaries along with one married daughter of late Suresh C. Mahindra and the 1st respondent, his son. The 1st petitioner filed and application for grant of Letters of Administration in view of the executors mentioned therein, namely, Keshub Mahindra and Harish Mahindra, the brothers of the deceased, under the Will, have renounced and the renunciation has also been communicated.
7. The 1st respondent has disputed the Will alleging that the Will and Codicils are bogus and got up and they are not valid. Further, it is contended that the 1st respondent is the sole proprietor of M/s. Broadacres Stud Farm. It is also contended that M/s. Broadacres Stud Farm owned by him and got the same from his father late Suresh C. Mahindra by a Release Deed dated 25-3-1977. However, he contends that the house by name 'The 'Gallop' is situated in M/s. Broadacres Stud Farm, and forms part and parcel of M/s. Broadacres Stud Farm.
8. In the additional affidavit filed by him he has stated that during the year 1978 an indenture of licence was executed by M/s. Broadacres Stud Farm in favour of M/s. Greenacres Stud Farm and Agricultural Farm where under Greenacres Stud Farm was permitted to utilise the facilities and assets of M/s. Broadacres Stud Farm for a period of nine years on a licence fee of Rs. 5,000/- per month. This is how the part of assets including horses belonging to late Suresh C. Mahindra came to be in the premises of M/s. Broadacres Stud Farm. Further, he stated that the said Mr. Byramji is a partisan and is siding with the first petitioner and he cannot be trusted with and he is not all that competent to be entrusted with the Management of M/s. Broadacres Stud Farm. He has further averred that a suit has already been filed (In Suit No. 1965/1990) in Bombay High Court in which Mr. Byramji has filed an affidavit. Further, he has stated that in the suit filed in Bombay High Court, he filed an application for appointment of receiver and got the order of appointment of receiver to make a true and proper inventory of the estate of the deceased and therefore there is no need to appoint an Interim Administrator.
9. The learned Counsel for the respondent has taken me through the plaint filed in the Bombay High Court and the order obtained therein as well as the alleged release deed dated 25-3-1977. As far the release deed only the immovable properties mentioned therein are said to have been given to the 1st respondent by his father and except that there is nothing to show that large number of Horses came to be in M/s. Broad-acres Stud Farm are given by his father to the 1st respondent. It may seen that as per the Will certain share in the Testator's estate is given to the petitioner and the respondent. It is relevant to note that the 1st respondent has filed additional affidavit specifically stating that certain horses belonging to his father late Suresh C. Mahindra came to be in the premises of M/s. Broadacres Stud Farm.
10. The learned Counsel for the respondents has also referred to the Income Tax Authorities order dated 25-11-1985 which shows that the authorities have recognised the 1st respondent as owner of M/s. Broad-acres Stud Farm which is based on the statement given by late Suresh C. Mahindra.
11. The 1st petitioner in her counter had, by referring to the document, namely, sale deed dated 16-7-1974, pointed out that the entire M/s. Broadacres Stud Farm, the building and the adjacent land were purchased by the late Suresh C. Mahindra. In the said deed there is no reference to the effect that the same was purchased by him on behalf of his son. She has also produced the order of the Deputy Commissioner of Income Tax dated 31-10-1990. The Income Tax Authorities has observed on the facts of the case, that in the particulars given relating to the assessment year 1976-77 the assessee Mr. Suresh C. Mahindra had purchased M/s. Broadacres Stud Farm.
11.1. At para-4 of the assessment order it is stated thus:
"The facts of the case are that in the previous year relevant to the assessment year 1976-77 the assessee had purchased a Stud Farm with a residential bungalow situated within the Stud Farm. The purchase deed was executed and registered at Bangalore on 31-1-1974. In the purchase deed the name of the Vendee was clearly mentioned as "Mr. Suresh Mahindra". In view of the above sale-deed and particularly in view of the fact that the payments were made by the assessee, the income from the above Stud Farm was considered to be assessable in the hands of the assessee."
11.2. The order of the I.T.A.T., dated 4-12-1985 had included that, keeping in view the facts of the case and also because the assessee is a well to do man, who was properly advised by the Chartered Accountants and Advocates, it was difficult to believe that if he had the intention to purchase the Stud Farm for and on behalf of his minor son, he would have clearly mentioned this fact either in the agreement or in the sale deed or in the guarantee bonds executed by him. It is further stated in the order that the facts existing and the order passed thereon for the assessment year 1976-77 wherein they had given a finding that the assessee Sri Surendra C. Mahindra was the real owner of M/s. Broadacres Stud Farm including the residential house situated therein and the plea that the same was bought on behalf of his minor son Master Marthand Singh Mahindra was only an after thought in view of the amendment to Section 10(27) made by the Finance Act, 1975.
12. The petitioners Counsel drew my attention to the Will and the Codicils executed by late Suresh C. Mahindra on 8-2-1985, 28-10-1985, 29-10-1985, 24-2-1986, 27-8-1986, 6-1-1987 and 8-9-1987 respectively. He has bequeathed Stud Farm along with other assets, i.e., moveables and immoveables including residential house "The Gallop" mentioned therein under the Will and the Codicils to the named legatees. The legatees include Mrs. Betty Mahindra (1st petitioner) her minor children and married daughter of late Suresh C. Mahindra and his son first respondent. Then the relevant question that arises that: if late Suresh C. Mahindra is not the owner, how he would have executed the Will bequeathing the properties mentioned therein?
13. From the foregoing it is clear that the property claimed by the 1st respondent was exclusively owned by him is seriously disputed. The document referred to by the either party do not substantially prove that what is claimed by the 1st respondent was exclusively owned and possessed by himself. It is a matter to be decided in the Court after trial suffice to say that the properties claimed by the respondent as his own. M/s. Broadacre Stud Farm is included in the Will and Codicils bequeathing it to the legatees among other items mentioned therein.
14. The respondent's Counsel submitted that the matter is seized by the High Court of Bombay and this Court should not exercise any powers under Section 247 of the Indian Succession Act, for it would come into conflict with the decision if any in the suit and the propriety demands that this Court should stay its hands. The petitioners' Counsel urged that the High Court of Bombay cannot be said to have seized of the matter covered under the Probate proceedings as the suit is based on inheritance as on intestacy especially with the disclosure of the Will and Codicils upon which this Court has required jurisdiction, would have pronounced on the validity or otherwise of testamentary documents. It is only after the Will and Codicils are discounted by any remote possibility and held void, then only the claim on the basis as on intestacy in the matter of the suit for administration lies. In all testamentary dispositions as per Section 104 of the Indian Succession Act, all legatees under the Will aforesaid will get properties mentioned therein on the death of the testator.
15. The contention of the respondents that in view of the suit filed in Bombay High Court no order appointing Administrator could be passed in the probate proceedings in this Court is unsustainable and the same cannot be accepted.
16. The learned Counsel for the respondents contended that the Court before allowing or refusing the prayer for appointment of Administrator, though ordinarily would not enter into the question of title and, in a special circumstances particularly there is likelihood of dispossession of property, it should consider the question of title and in that event refuse to grant prayer for appointment of Administrator in respect of such property. He relied on the decision of the Calcutta High Court in SHAILESH CHANDRA MUSTAFI v. AMAL CHANDRA MUSTAFI AND ANR., The ratio of the said decision is that whenever there is likelihood of dispossession of the property by appointment of Administrator, then the Court should consider the question of title to the property claimed by the party outside the Will.
17. In this case such a question of dispossession of the property does not arise for firstly the property for which this Administrator is going to be appointed is not outside the Will, moreover there could be no dispossession of any property by the appointment of Administrator pendente lite to manage the property without the right to alienate.
18. Section 247 of the Indian Succession Act authorises the Court during the pendency of the Probate proceedings, to appoint an Administrator pendente lite and provides that such Administrator shall have all rights and power of general Administrator except the right to distribute the estate, and that, every Administrator shall be subject to the immediate control of the High Court and under the direction of the High ,Court. The decision relied upon by Mr. Holla is of no assistance to him.
19. Thus, there is a lis, and the Will is disputed, and the question of validity or existence of the Will, will have to be decided by the Court. It is also seen that the executors appointed by the testator under the Will have sent in their renunciation letter dated 6-6-1990.
20. It is the case of the petitioners that large number of Race Horses which were to be protected and the affairs of the Race Horses business shall be managed by the professional man and the best trainer in the field, Mr. Rashid Byramji, who was the close friend and advisor to late Sri Suresh C. Mahindra.
21. The business establishment of M/s. Broadacres Stud Farm will have to be protected and the same is required to be managed by a professional man without hich there is likelihood of loss and damage to the valuable properties of the deceased. Moreover, the persons named as executors in the Will renounced and after their renunciation as executors as there is no competent person to discharge that function of an Administrator.
22. We are no doubt governed by the provisions of Section 247 of the Indian Succession Act, and the appointment of the Administrator is purely discretionary. In my view, the Court has to be satisfied as to the necessity of such an Administrator and as to the fitness of the proposed Administrator and it must also be satisfied that it is just and proper, under the circumstances, to appoint an Administrator before subjecting the estate of the deceased to his hands. Apart from Indian Succession Act, the Court has general jurisdiction to appoint an Administrator in any case in which it may appear to be just and convenient. The Court generally makes appointment whenever there is a bonafide dispute and the case of necessity is not made out.
23. The question which then arises is whether the necessity for appointment of Administrator has been made out, and if it is, who should be appointed as Administrator/s. In this case representation to the estate of the deceased is in contest and, without saying anything on the merits of the counter allegations and counter claims in the suits, there can be no doubt that a bonafide litigation is pending between the parties. The applicant has, in her statement, given details of valuable race horses, and if proper protection and care is not given to these Race Horses by appointing an expert in the field there is every likelihood they may also be met with same fate as those Horses died.
24. The respondents filed detailed objections statement and contended that the death of Horses are normal and even in earlier years prior to the death of Sri Suresh C. Mahindra number of Horses died and that would be no ground for appointment of Administrator.
But the fact remains that even subsequent to the year 1989, after the death of Sri Suresh C. Mahindra, number of very valuable horses died due to improper maintenance for which Mr. Holla, learned Counsel for respondents, stated that the 1st respondent was moving between Bangalore and Bombay other places and as such there were lapses and that cannot be attributed for the death of horses, for the death of horses are normal in any stud farm. I am not convinced with the said explanation.
25.Mr.Holla strongly urged that the Bombay High Court has seized of the matter and there is likelihood of appointment of receiver and in that event the propriety demands that Court shall not proceed with the matter of appointment of Administrator. Such appointment of receiver is analogus to the appointment of Administrator. This submission does not detain this Court from proceeding with the matter for no appointment of receiver has yet been made by the Bombay High Court for the estate of the deceased, except to take inventory of the moveables and immoveables of the deceased. That appointment of receiver is not analogus to the appointment of Administrator within the meaning of Section 247 of the Indian Succession Act. Even if the appointment of receiver is made in that suit, this Probate Court can appoint an Administrator pendente lite if it is just and proper to do so, although a receiver may be appointed in any of the two suits between the same parties and in respect of the same property,
26. The estate is of considerable value and for safeguarding the same and for the protection of racehorses of the deceased, in my opinion, some arrangement has to be made. In this case, on account of the renunciation of the executors appointed under the Will, the execution of the Will has been challenged on various grounds. Under the circumstances there should be, in my opinion, grant of Administrator pendente lite. The last question is who should be the Administrator pendente lite? I have to be satisfied with fitness of such an Administrator. The appellant has suggested the name of Mr. Rashid Byramji an expert and second to none in the field of management, care, and protection of race-horses in the Country. He was intimately associated for the last few years in the advise and help in breeding and training of race-horses and also in the management of affairs of the estate of the deceased Suresh C. Mahindra up to the moment of his death. Further, the applicant has attached the affidavits of men of distinction and achievement in several fields, especially knowledgeable in the field of breeding and care of Horses. They are Major Pradeep K. Mehra, Mr. A.S. Brar Shivendra Singh Doaba, and General P.O. Kumaramangalam. They have stated that Mr. Rashid Byramji is one of the finest and best trainer in the history of horses. His expertise in the management of the estate and advise is well known both in matters of horse racing and horse breeding, apart from his ability. He is a man of. Integrity and reputation and a complete gentleman. I have carefully considered whether Mr. Rashid Byramji could be appointed as Administrator. Thus, in my opinion and in the interest of all the parties, he can be appointed as Administrator, who is a impartial person and man of integrity and honesty apart from he being an expert in the field of training, breeding and maintenance of race horses. That apart he is a person well versed in "ASHWASHASTRA".
27. The respondents' Counsel strongly opposed the appointment of Mr. Rashid Byramji as an Administrator. It is alleged that Mr. Byramji has filed an affidavit in the suit proceeding in the High Court of Bombay and he is very much interested in supporting this applicant. I have perused the affidavit filed by Mr. Byramji in the above referred suit. The respondent has made him a party in the Suit and in answer to certain statement, he filed the affidavit which does not disclose that he is claiming any interest in the estate. Except he has been helping as trainer of horses during the life time of testator. The other allegation that he would be working against the interest of the deceased is a mere allegation which has not been substantiated. The respondents' Counsel has pointed out that the 1st petitioner has taken the stand in the application filed in Court on 23-11-1990 that she has no objection the respondent Marthand Singh Mahindra is being appointed along with Mr. Rashid Byramji as Co-Administrator. The Applicant/Petitioner Counsel submitted that it is true provided the 1st respondent gives his consent to appoint Mr. Rashid Byramji as Administrator. In other words it is suggested that the 1st respondent could be appointed as Co-Administrator provided the appointment of Mr. Rashid Byramji is accepted by the 1st Respondent. The 1st respondent has filed an affidavit on 23-11-1990 in which he has given his consent for the appointment of Mr. Rashid Byramji as Administrator along with him. Since the parties have consented Mr. Rashid Byramji and Mr. Marthand Singh Mahindra could be appointed as Administrator and Co-Administrator respectively to the estate of the deceased covered in the Will, the Court will have no difficulty to appoint them as Administrator and Co-Administrator to manage the affairs of the estate of the deceased covered in the Will.
28. In the circumstances, in exercise of the powers under Section 247 of the Indian Succession Act, 1925, this Court doth appoint Mr. Rashid Byramji and Mr. Marthand Singh Mahindra as Administrators pendente lite with all the powers and rights on behalf of the business establishment of M/s. Broadacres Stud Farm except the right to distribute such estate and shall be subject to the immediate and absolute control of this Court and to act under its directions.
29. I further direct that the Administrators shall not disturb the applicant in possession of the house 'The Gallop' situated in M/s. Broadacres Stud Farm in which the applicant is living with her two minor daughters and she is entitled to all the facilities as she was enjoying prior to the death of Sri Suresh C. Mahindra and continue to enjoy such facilities till the disposal of the suit.
30. Accordingly, Administrators pendente lite are appointed. The application is allowed.
ORDER ON I.A.VII The 1st respondent has filed this application seeking stay of the operation of this order.
Heard the learned Counsel. I.A. No. VII rejected.
ORDER IN I.A.V The applicant-respondent Marthand Singh Mahindra has filed this application under Section 10 of the Code of Civil Procedure with a prayer to stay all the proceedings in the above case till the final disposal of Suit No. 1965 of 1990 on the file of the High Court of Judicature, Bombay.
2. The material allegations of the applicant are that he is the only son of late Suresh C. Mahindra. He was looking after the affairs and the business of M/s. Broadacres Stud Farm. His father died on 1-6-1990 leaving behind him his wife, the 4th respondent herein, and his son (applicant), and his married daughter, the 2nd respondent herein. Sri Suresh C. Mahindra left behind lot of moveable and immoveable properties. The 1st petitioner Mrs. Betty was known as Betty Verma changed her name and she was known as Mrs. Betty Mahindra and she has set up a Will and six codicils and claimed, to be the beneficiary along with, her two daughters. The 1st petitioner has set-up the bogus Will and codicils and they are wholly void.
3. The applicant has submitted that his father Suresh C. Mahindra died intestate without leaving any valid Will.
4. He has filed a suit in the High Court of Bombay in Suit No. 1965/1990 on 3-7-1990 and in the suit he prayed for Administrating the estate of his deceased father with the prayers, including the prayer for appointment of a receiver for taking inventory of all the properties of his deceased father.
5. He has maintained that the petitioners 1 to 3 have been arrayed as defendants 1 to 3 in the Suit No. 1965/1990 and have entered appearance and set up the Will, and the codicils alleged to have been executed by late Suresh C. Mahindra, since the High Court of Bombay is seized of the matter and the suit filed at Bombay High Court was long prior to the filing of the Probate proceedings in this Court and the issue involved in the said proceedings is also directly and substantially the same as in the Probate proceedings in this Court, it is proper and necessary to stay the Probate proceedings as otherwise grave and irreparable injury would be caused to the applicant.
6. The petitioners have stoutly opposed the application mainly on the ground that it is misconceived and is not maintainable. It is submitted that the application has deliberately been made with a view to prevent the petitioners from obtaining any order of appointment of the Administrator pendente lite. It is further submitted that the issue involved in the suit is neither directly nor substantially the same in the Probate proceedings, pending in this Court.
7. Let me examine briefly the contentions of the parties to find out whether the application is maintainable or whether the issue involved in the suit is directly and substantially the same as in the Probate proceedings. The law on this point is well settled. No Court shall proceed with the trial of any suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit between the same parties. Thus, it is clear that it is the pendency of the previously instituted suit that constitutes a bar to the trial of the subsequent suit. What is trial of the suit? Which means suit is to set down for evidence. The object of the provision is to prevent the Court from carrying on two suits from simultaneously proceeding with the trial in respect of the same matter. But the learned Counsel for Applicant argued that at any stage of the proceedings, the suit can be stayed and it is not necessarily the suit should reach the stage of trial.
8. In support of this contention the learned Counsel for the applicant has cited the decisions, which are as follows: , (1) C.L. TANDON v. PREM PAL SINGH RAWAT AND ORS., AIR 1978 Delhi 2212 (2) SHAILESH CHANDRA MUSTAFl v. AMAL CHANDRA MUSTAFl AND ANR, (3) VELUR MUNUSWAMI MUDALIAR v. D. RAGHUPATHI, AIR 1940 Madras 7 (4) OURGA PRASAD v. KANTICHANDRA MUKHERJI, AIR 1935 Calcutta 1
9. In the Court has held that suit cannot be stayed as the issued involved in two suits are not identical and moreover it cannot invoke Section 151 CPC for the ends of justice.
10. In the decision in Velu Munuswami Mudaliar it was held that the expression 'the matter in issue' as used in Section 10 does not mean any matter in issue. The matter in issue in a previously instituted suit refers to entire subject-matter in dispute- not to one of the issues, however imperfect it may be for the decision of the suit.
11. In the decision of the Calcutta High Court in Durga Prasad's case it was observed thus:
"In a proper case the Court has power to stay generally at any stage at which it seems expedient to do so."
12. The respondents' Counsel has cited a decision of our High Court in BABURAO VITHAL RAO SULUNKE v. KADARAPPA PARASAPPA DABBANNAVAR & ANR., AIR 1974 Mysore 63o the effect that Section 10 of the C.P.C., refers to the stay of trial of a suit and not other proceedings of an interlocutory character. The decisions relied upon by Mr. Holla in support of his contention does not help him having regard to the facts and circumstances of this case.
13. The decision of this Court referred to above, do show that only at the stage of trial the subsequent suit can be stayed provided the issues involved are directly and substantially the same as in the previous suit and the subject-matter in both the suits are same.
14. I have perused the plaint filed by the applicant in the Suit in Bombay High Court and the petition by the Petitioners/Respondents in the Probate proceedings in the High Court of Karnataka. It prima facie gives the full focus of the issues involved in both suits. The suit in Bombay High Court filed by the applicant is an Administrative suit to administer under Hindu Succession Act, whereas the Probate proceedings filed by the respondent is one for grant of probate under Indian Succession Act, 1925. The issues involved in the Probate proceedings are distinct and different and the relief claimed is different from what is claimed in the suit in the Bombay High Court. The very nature of suit and the relief claimed therein and in the Probate proceedings in this Court are not the same, though parties are same. In either of the suit the trial has not commenced. The Probate proceedings is in the stage of interlocutory proceedings such as appointment of receiver or appointment of Administrator. Likewise the suit in Bombay High Court also in the same stage, and any decision in the Probate proceedings may have some bearing on the suit. This is no ground to stay the Probate proceedings merely because certain controversy is common in both the suits. It will not by itself serve applicant's purpose. The points in Issue, in fact, are not identical and common in both the suits. Moreover, the reliefs claimed in the Probate proceedings are not the same as in the suit filed in Bombay High Court. That apart the reliefs claimed in the Probate Proceedings cannot be granted in the suit filed in Bombay High Court.
15. It was held by the Calcutta High Court in that one of the most essential condition of Section 10 of the CPC is that the matter in issue in the latter suit which is said to be stayed must be the direct and substantial issue in the earlier suit, which is pending, and mere identify of some issue in the two suits is not sufficient to attract the Section.
16. Assuming that stay is granted in a matter like this, still it will not come in the way of making interlocutory order in the Probate suit such as appointment of a receiver or Administrator. The Bombay High Court in the case reported in AIR 1922 Bombay 276, has held that even if the order of stay is passed still the Court can pass interlocutory order such as appointment of receiver or attachment before Judgment.
17. Having regard to the facts and circumstances of the case, and the suit is pending before the Bombay High Court and that the Probate proceedings in this Court is still at the interlocutory stage and in both suits the trial has not yet commenced, and the matter in issue is not directly and substantially the same between the same parties and that the reliefs claimed in the Probate proceedings and the proceedings in the suit are not the same, I am of the firm view, that this is not a fit case to grant stay much less to grant any interim order of stay of this Probate Proceedings.
18. Consequently, the application is rejected.