NAMITA DAS Vs. PRADYUMNA KUMAR MOHANTY

JUDGEMENT

(1.) CHALLENGING the Order dated 20 -7 -2005 passed by the Civil Judge (SD), Khurda in C.S.No.118 of 2004 rejecting the prayer of the present Petitioner who is Defendent No. 1 in the said suit for staying the proceedings of the suit, the present Writ Petition has been filed.

(2.) ACCORDING to Learned Counsel for the Petitioner, one Prafulla Kumar Mohanty during his lifetime by a registered Will dated 5 -5 -1995 had bequeathed a land in her favour measuring Ac.0.565 dec. appertaining to Plot No. 622, Khata No. 5 of Mouza -Gurujanga. Accordingly after the death of Prafulla Kumar Mohanty the Petitioner filed Misc. Case No. 1 of 2004 before the District Judge, Khurda at Bhubaneswar praying for grant of Letters of Administration which case is pending.

(3.) LEARNED Counsel for the Opposite Parties who are Plaintiffs in the suit, at the other hand, submitted that the aforesaid decision relied upon by the Learned Counsel for the Petitioner has no application to the present case. He submitted that the dispute in the decision referred to above was for specific performance of a contract while in the present suit the prayer is to set aside a Will. According to him law is well settled that a suit for specific performance 'of contract or partition cannot proceed if a probate proceeding is pending, inasmuch as the right, title and interest with regard to the property bequeathed under the Will are involved in the said suit; where in the case at hand, the Opposite Parties as Plaintiffs challenge the execution of the Will itself and a civil Court is only competent to decide the issues raised in the suit. He further submitted that a probate Court has limited jurisdiction and that too only with regard to execution of a Will. It cannot go into the right, title or interest of the executant and other questions that may be required to be determined in the suit, and as such proceedings of the aforesaid Civil Suit could not be stayed.