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Showing contexts for: pendency probate in Praveer Chandra vs Aprajita & Ors on 31 October, 2019Matching Fragments
3. While the probate petition was dismissed and was yet to be restored, Smt. Aprajita - Respondent no.1 herein (hereinafter „Respondent‟) filed a partition suit before the District Court in Delhi on 20th July, 2015 seeking partition of the estate of Late Smt. Shanti Singh.
4. In this background, Defendant No.6 filed an application under Section 10 CPC seeking stay of the partition suit during the pendency of the probate petition. The same was rejected by the Trial Court on 25th April, 2018 by the impugned order. The finding of the Trial Court, after discussing the various case laws including the judgments in Ravi Khanna v. Pankaj Khanna 152(2008) DLT 484 and Kanwarjit Singh Dhillon v. Hardyal Singh Dhillon and Ors., (2007)11 SCC 357 is that the petition seeking probate and proceedings for partition are not required to be stayed on account of the pendency of each other. The conclusion of the Trial Court in the impugned order is as under:
"13. In view of the above decisions, it is quite apparent that whereas a will may be in issue in two separate proceedings inter alia proceedings for probate and proceedings for partition qua the same property, neither of the two proceedings are required to be stayed on account of the pendency of the other. The proceedings in the probate petition only determine the genuineness and due execution of the will whereas a suit for partition is concerned more with the title/share of the parties. Since the two proceedings operate in different spheres, this court finds no reason to stay the present proceedings for partition as the matter directly and substantially in issue in the present suit is not the same as under consideration in the probate proceedings before the court at Motihari, East Champaran, Bihar.
11. Insofar as the present petition is concerned, the question is as to whether the partition suit requires to be stayed in view of the pendency of the probate proceedings. A perusal of the partition suit, clearly, shows that the Respondent - Smt. Aparajita is praying for partition of the estate of her mother - Late Smt. Shanti Singh and the Defendant No.6 being one of the sons of the testatrix, has set up a Will. In respect of the said Will, in paragraph 9 of the suit, the following is pleaded: -