Calcutta High Court (Appellete Side)
Ashalata Sikdar & Ors vs Radha Binod Sikdar & Anr on 24 November, 2017
1 S/L.16 November 24, 2017 SD C.O. 2707 of 2017 Ashalata Sikdar & Ors.
Vs. Radha Binod Sikdar & Anr.
Mr. Hironmoy Bhattacharya, Adv.
Mr. Chandra Nath Sarkar, Adv.
...for the Petitioners.
Mr. Tapas Bhalla Chinya, Adv.
Mr. P. Majumder, Adv.
Mr. Snehengshu Majumder, Adv.
...for the Opposite Parties.
The defendant nos.1 to 4 in a partition suit are the petitioners in the present revisional application. The opposite party no.1 instituted a partition suit bearing Title Suit No.35 of 2014. All the parties claim to be heirs of one Mohan Banshi Sikdar. The petitioners contend that the said Mohan Banshi Sikdar, since deceased, left a will whereby he bequeathed his entire property to the defendant nos.2 to 4 in the partition suit. As such, it is the petitioners' contention that the subsequent partition suit of 2014 initiated by the opposite party no.1 will be directly affected by the fate of the probate proceeding initiated in connection with the said will, which has become contentious subsequently.
The Court below, by the impugned order dated April 19, 2017, refused the application for stay upon consideration of certain cited judgments, holding that if 2 preliminary decree is passed in the partition suit, there will be no conflicting decisions which will usher any further complications.
Upon hearing both sides and considering the materials on record, it is evident that in the present case, all parties claim through the deceased Mohan Banshi Sikdar. Hence, in the event probate is granted in respect of a will executed by the said Mohan Banshi Sikdar, bequeathing his property to only the defendant nos.2 to 4, the entire distribution of shares and title in the suit property will be affected. Since the title to the suit property and distribution of shares is precisely the subject matter of the partition suit, it is obvious that whatever may be the fate of the probate proceeding, will directly affect the partition suit, be it at the preliminary or the final stage. The circumstances in the decisions cited before the trial court were entirely different in such aspect and as such, the Court below committed a jurisdictional error in proceeding squarely on the basis of such cited judgments without appreciating the factual scenario involved in the present case.
Although it is noticed that the application for stay filed in the Court below was captioned as one under Section 10 of the Code of Civil Procedure which is not applicable in the present case, it is now settled that the Court can pass an order of stay ex debito justitiae in circumstances not covered by Section 10 of the Code of Civil Procedure. Hence, there cannot be any impediment in the Court passing an order of stay of further proceedings of the partition suit till disposal of the probate proceeding being now registered as O.S. No.1 of 1996 pending before the Additional District Judge, Fourth Court at Krishnanagar. 3
In such view of the matter, C.O. 2107 of 2017 is allowed on contest, thereby setting aside the impugned order and passing an order of stay of all further proceedings of the partition suit, being Title Suit No.35 of 2014 pending before the Civil Judge (Senior Division), First Court at Krishnanagor till disposal of O.S. No.1 of 1996 pending before the Additional District Judge, Fourth Court at Krishnanagor.
There will be no order as to costs.
Urgent certified website copies of this order, if applied for, be made available to the parties upon compliance with the requisite formalities.
(Sabyasachi Bhattacharyya, J.)