DIPAK AGRAWALA Vs. SMT. CHANDRAKAL AGARWALA

JUDGEMENT

(1.) THIS civil revision application is directed against the order dated 10th July, 2001 passed by Sub -judge Vth, Dhanbad in Title Suit No. 132/2000 whereby he has stayed the further proceeding of the suit in purported exercise of power under Section 10 of the Code of Civil Procedure till the disposal of the probate case being PLA No. 295/97 pending in the Calcutta High Court.

(2.) PLAINTIFFS ' case is that one Bhag -wati Prasad Agarwalla died on 21.9.1987 leaving behind a will dated 9.7.1987. Late Bhagwati Prasad Agarwalla was the father of Opposite Party Nos. 1, 2 and 4 and grand father of the petitioners and Opposite Party No. 3. The Opposite Party No. 5, Arun Kumar Jhunjhunwala, who is alleged to be the executor of the said will, made an application in the High Court, Calcutta in December, 1997 for grant of probate of the said will being PLA No, 295/97. Petitioners' case is that they along with the Opposite Parties 1, 2 and 3 are the co -parceners of joint Hindu Family governed by Mitakhra law of which late Bhagwati Prasad Agarwalla, since deceased, was the karta. Opposite Party No. 6 is alleged to be another executor of the said will. According to the said will the joint property was also included and the property was bequeathed to Opposite Party No. 2, Prem Kumar Agarwalla solely to the exclusion of all other heirs of the deceased. The petitioners filed the aforementioned suit for partition of the joint family coparcenary property alleging, inter alia, that the deceased divided the property amongst various branches of the Hindu Undivided Family (short HUF) on terms and in the manner recorded in an Award dated 1st January, 1961 passed by a sole Arbitrator appointed by the parties. The Award was by way of family arrangement/settlement signed and executed by all the parties, according to the said Award the parties entered into a deed of partition dated 7th February. 1962 and the same was duly registered at the office of the Registrar of Assurances at Dhanbad. It is alleged that since the opposite parties have invaded or are threatening to invade the petitioners in the property, the suit was filed for a declaration that the suit properties are the coparcenary properties of HUF of Bhagwati Prasad Agarwalla and also for permanent injunction restraining the defendants -opposite parties from transferring, alienating, encumbering or otherwise dealing with the said property.

(3.) THE learned Court below, after hearing the parties passed the impugned order and stayed the further proceeding of the suit. The Court below is of the view that since all the procedures provided in the Code of Civil Procedure are applicable in a probate proceeding, the provisions of Section 10 will apply and, therefore, the subsequently instituted suit is liable to be stayed till the disposal of the probate case.