ANANT VERINDER SINGH Vs. STATE

JUDGEMENT

(1.) The petitioner has filed this writ petition under Articles 226 and 227 of the Constitution of India impugning the order dated 3.7.2003 passed by the learned District Judge in an application under Section 10 of the Code of Civil Procedure, 1908 moved by the respondent No.2 for staying the proceedings in the probate matter being letter of administration Case No. 91/2002 in view of the pendency of Suit No. 870/2002 for partition filed by the respondent No.2 in this Court.

(2.) The brief facts of the case are that the property bearing No. D-57, Defence Colony, belonged to late Wing Commander Gurcharan Singh. Late Gurcharan Singh passed away sometime in June, 1968 leaving behind his widow Smt. Kartar Gurcharan Kaur and two sons and a daughter. The sons being one Shri Sarboland Singh and Col. Inderjit Singh (respondent No.2). The daughter being the petitioner. By a will left by late Gurcharan Singh his property devolved upon his heirs in the following manner:-

(3.) In this background the respondent No.2 filed a suit bearing No. 870/2002 which is pending in this Court wherein he has claimed partition by metes and bounds on the basis of the alleged half share each on the strength of a purported Deed of Family Settlement. The petitioner on the other hand filed the aforesaid case for obtaining letters of administration/probate of the will. The petitioner alleges that in the probate matter, instead of filing of a written statement despite several opportunities being granted therefor, the respondent No.2 filed an application under Section 10 of the CPC for stay of the proceedings in view of the pendency of the said suit. It is the petitioner's grievance that provisions of Order VIII Rule 1 of the CPC as well as Order XVII Rule 1 (1) of the CPC have been violated inasmuch as written statement was not filed by the respondent No.2 in the probate matter within the period specified in the aforesaid provisions and yet the application of the respondent No.2 was entertained.