Sri Sreeman Kumar Ghosh & Anr vs Smt. Jhuma Ghosh & Anr
2023 Latest Caselaw 3639 Cal

M/L 25
05.6.2023

Court No.652 SD CO 952 of 2018

Sri Sreeman Kumar Ghosh & Anr.

Vs.

Smt. Jhuma Ghosh & Anr.

Mr. Siddhartha Lahiri Mr. Debraj Dutta ... for the Petitioners.

Affidavit of service filed by the petitioners in court

today be kept with the record.

In spite of service, opposite parties are not

represented.

This application under Article 227 of the Constitution

of India has been directed against the Order No.40 dated

February 20, 2018 passed by the learned Civil Judge (Senior

Division), at Sealdah in Title Suit No.95 of 2012.

By the order impugned, learned court below rejected

the petitioners' application under Section 151 of the Code of

Civil Procedure wherein the petitioners have prayed for stay

of the partition suit being Title Suit No.95 of 2012 till the

disposal of the probate suit being OS 25 of 2013.

The petitioners contended that the predecessor of the

opposite party No. 1 & 2 herein namely Srijan Ghosh filed

aforesaid suit for declaration and partition being Title Suit

No.95 of 2012. The petitioners herein filed their separate

written statement denying the allegations levelled in the

plaint. The predecessor of the opposite parties Amarendra

Nath Ghosh being the father of the petitioners herein and

also aforesaid late Srijan Ghosh, was the original owner of

the suit premises which he inherited from his mother

Labanya Lata Ghosh. Said Amarendranath Ghosh died

intestate on June 21, 2003 leaving behind his wife

Swarnalata Ghosh, Srijan Ghosh and present petitioners as

his legal heirs. Swarnalata Ghosh being the mother of the

petitioners and Srijan died on April 21, 2012 and before her

death, she had made her last will and testament dated April

26, 2011, and said will is a registered will. In the said

registered will, she had bequeathed her undivided 1/4th

share in the said premises to the petitioners absolutely and

forever. The executors of the will initiated probate

proceeding being Probate Case NO.79 of 2012 before learned

District Delegate at Sealdah and after getting knowledge of

the said probate proceeding, the original plaintiff, filed the

said Title Suit No.95 of 2012. Since the said Srijan Ghosh

filed objection to the application for grant of probate it

become contentious, and renumbered as Original Suit No.29

of 2013 and transferred to the court of learned Additional

District Judge, Sealdah where it is now pending for disposal.

On February 20, 2018, the petitioners herein filed an

application under Section 151 of the Code of Civil Procedure

in the aforesaid Title Suit No.95 of 2012, inter alia, praying

that unless Title Suit NO.95 of 2012 (declaration and

partition suit) be stayed till disposal of the probate

proceeding, the real controversy between the parties would

not be resolved, since the opposite parties herein, claiming

through their predecessor Srijan Ghosh, has claimed 1/3rd

share in the suit property, whereas they are not entitled to

get 1/3rd share, as the mother of the petitioners and Srijan

had bequeathed her 1/4th share to the petitioners.

However, learned court below after hearing both the

parties was pleased to reject the petitioners aforesaid prayer

for stay on the ground that both the suits are not identical

and the parties litigating in both the suits are litigating under

different capacity and also because stay application has not

been filed under the relevant provision of the code.

Learned counsel appearing on behalf of the

petitioners submits that the court below failed to exercise its

jurisdiction by not applying the settled tests applicable in

adjudicating an application filed by the petitioners for

granting stay and the order impugned suffers material

irregularities and is not sustainable in the eye of law.

Learned court below was not justified in holding that the

parties to the suits are litigating under different capacity in

both the suits and that the main issues of both the suits are

not identical. Learned court below failed to appreciate that

the decision of the probate case will actually determine the

share of the parties which is very much relevant for the

partition suit which has been instituted later on.

Accordingly, petitioner submits that the order impugned is

perverse and liable to be set aside.

He further submits that interest of justice demands

that both the suits should be heard simultaneously in order

to avoid conflict of judicial decisions.

In this context he also referred a judgment passed by

Divisioin Bench of this Court in Joy Chowdhury vs.

Kumkum Ray and Ors. reported in 2016(1) CHN

(CAL) 302. (Para-15)

Having considered the facts and circumstances of the

case and also considering the point that the issue involved in

the earlier instituted probate suit being OS 79 of 2012 has a

direct impact upon the issue involved in the later instituted

partition suit being Title Suit No.95 of 2012, in terms of

share of the parties in the suit property, CO 952 of 2018 is

hereby disposed of with a direction upon learned District

Judge, South 24 Parganas at Alipur to transfer the Title Suit

No.95 of 2012 pending before the court learned Civil Judge

(Senior Division) at Sealdah to the court of learned

Additional District Judge, Sealdah within a period of three

weeks from the date of communication of the order and the

learned Additional District Judge, Sealdah will try both the

suits simultaneously.

Department is directed to send a copy of this order to

the learned District Judge, South 24 Parganas at Alipore and

learned Additional District Judge, Sealdah.

Urgent photostat certified copy of this order, if

applied for, be given to the parties upon compliance of all

necessary formalities.

(Ajoy Kumar Mukherjee, J.)