Calcutta High Court (Appellete Side)
Smt. Mandira Das vs Smt. Kamdini Mondal & Others on 6 March, 2014
Author: Tapash Mookherjee
Bench: Tapash Mookherjee
1 36 06.03.14
rpan Ct. No.17 C.O. No. 3885 of 2010 In Re: An application under Article 227 of the Constitution of India filed on 14th December, 2010. AND In the matter of: Smt. Mandira Das Petitioner Vs. Smt. Kamdini Mondal & Others Opposite Parties Mr. Mrityunjoy Goswami ... for the Petitioner Mr. Ashim Kumar Routh ... for the Opposite Parties Learned advocates for both sides are present. The present revisional application is directed against the order No.65, dated 15th September, 2010, passed by the Civil Judge, Senior Division, 1st Court, Barasat, North 24- Parganas in Title Suit No.698 of 1996 and thereby rejecting the prayer of the present Petitioner for stay of the suit till the disposal of a probate case related with the some portion of the suit property.
Learned advocate for the Petitioner submits that the property originally belonged to Rajubala Mondal the mother of both the parties. During her lifetime the present Petitioner filed a partition suit adding Rajubala Mondal as a Defendant No.6 and during the pendency of the suit, Rajubala Mondal died and her legal heirs had been substituted. After her death, it came out that she left a Will bequeathing of her interest in the suit property in favour of Defendant No.5 in the suit and a probate case started in connection with that Will in which the present Petitioner was impleaded as a party. Now, learned advocate for the Petitioner submits that if the application for probate is rejected then she will get some 2 shares in the suit property, as per natural inheritance according to law and in case, the Will is probated she will have no interest in the suit property and in such circumstances, the fate and result of the partition suit entirely depends upon the result of the probate case and in such circumstances, both the cases should not be allowed to proceed because if the suits and the probate application go simultaneously, then at the end point there may be conflict of decisions and as such, he prayed for stay of the further proceeding of the suit which had been rejected by the learned Trial Court relying on a decision reported in (2005) 2 WBLR (Cal) 713.
Learned advocate for the Petitioner further submits that the aforesaid decision has no application in the present suit because in the case referred to, the plaintiff had no interest in the suit property and the plaintiff was a stranger but in this case the plaintiff's interest is deeply rooted in both the cases and hence learned Trial Court failed to appreciate the matter in correct perspective.
On the other hand, learned advocate for the Opposite Parties submits that no purpose of the Petitioner would be served if the proceeding of the partition suit is stayed. He further submits that the partition suit is a very old suit instituted in the year 1996 and as such, its stay may cause serious prejudice to both the parties and as such, learned Trial Court was correct in law to reject the prayer of the present Petitioner.
Learned advocate for the Opposite Parties also submits that the decision relied on by learned Trial Court is quite 3 applicable in the present case and as such, learned Trial Court committed no error in law by relying on the judgment cited.
In the case, reported in (2005) 2 WBLR (Cal) 713 [Ashoke Kumar Himmatsinghka Vs. Rajendra Kumar Himmatsinghka & Others] the plaintiff was in no way connected with the suit property and he was a stranger; whereas the present Petitioner has serious interest in the suit property in the partition suit as well as in the probate case and some of the properties are common in both the cases.
That apart, if the probate application is allowed, then the present Petitioner would be totally non-suited; on the contrary, if the probate application is allowed and the Will, in question, is nullified then the present Petitioner will acquire a considerable interest in the suit property. In the circumstances, the fate of the partition suit is totally dependable upon the result of the probate case and if both the proceeding are allowed go-forward simultaneously, then there is every chance of conflict of decision and conflict of interest of the parties in the suit property. It is informed that the probate case has already reached at the concluding part. So there is no chance of long delay for the disposal of the partition suit, if the stay application is allowed.
In view of the facts and circumstances narrated above, I am of the view that the decision Ashoke Kumar Himmatsinghka Vs. Rajendra Kumar Himmatsinghka & Others (supra), relied on by the learned Trial Court, has no application in the present case. In the present case the result of the title suit will totally depend on the result of the probate case as 4 discussed earlier. Moreover, there is every chance of conflict of decisions if both the cases do proceed simultaneously. In such circumstances, learned Trial Court was wrong in rejecting the prayer of the present Petitioner for the stay of the partition suit till disposal of the probate case between the parties.
The Revisional Application is, therefore, allowed on contest. The Order No.65, dated 15th September, 2010 passed by the learned Civil Judge, Senior Division, 1st Court, Barasat, North 24-Parganas in T.S. No.698 of 1996 is hereby set aside. The application of the present Petitioner for stay of the partition suit till the disposal of the probate case in the Trial Court is thereby allowed.
The Revisional Application, being C.O. No.3885 of 2010, is accordingly disposed of.
There shall be no order as to costs.
Urgent photostat certified copy of this order, if applied for, be given to the parties as expeditiously as possible on compliance of all necessary formalities.
(Tapash Mookherjee, J.)