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2011 DIGILAW 825 (CAL)

Naila Samreen Shahab v. Kanan Mukherjee

2011-06-22

PRASENJIT MANDAL

body2011
Judgment 1. THE Judgment of the Court was as follows :- This application is at the instance of the substituted plaintiff and is directed against the order dated August 9, 2010 passed by the learned Civil Judge (Senior Division), 2nd Court, Alipore in T.S. No. 41 of 1994 thereby rejecting the application for stay of all further proceedings of the said suit and the suit being E.O.S. No. 48 of 1999 for declaration pending before the Hon'ble High Court, Calcutta till the disposal of the two probate cases. 2. THE predecessor-in-interest of the present plaintiff instituted a suit being T.S. 41 of 1994 for declaration and perpetual injunction. In that suit, the defendant No. 3 / opposite party herein entered an appearance and he filed a written statement raising also a counterclaim for a decree for specific performance of contract and such a counterclaim has been converted into the Title Suit being Title Suit No. 88 of 1996. THE plaintiff of the Title Suit No. 41 of 1994 was required to file a written statement against the counterclaim. THE original plaintiff (since deceased) executed a registered will dated November 23, 1992 in respect of all his properties including the premises No. 27A and 27B, Syed Amir All Avenue, Kolkata-700 017 in favour of the plaintiff. He was also alleged to have executed another will in respect of the selfsame properties on March 20,1995. Two probate proceedings are pending. He was als6 alleged to have executed a deed of trust on March 20,1995. THE executors of the will dated November 20,1992 instituted a suit being Title Suit No. 15 of 1996 and that suit is now pending before this Hon'ble Court, Calcutta being E.O.S. No.48 of 1999. At that juncture, the plaintiff filed an application for stay of the two suits and an another suit being E.O.S. No.48 of 1999 pending before the Hon'ble High Court till the disposal of the two probate proceedings. That application was rejected by the impugned order. Being aggrieved, this application has been preferred. Now the question is whether the impugned order should be sustained. 3. UPON hearing the learned Counsel for the parties and on going through the materials on record I find that one Edwin Bason alias Edmond Bason (original plaintiff now deceased) was the absolute owner of the premises Nos. Being aggrieved, this application has been preferred. Now the question is whether the impugned order should be sustained. 3. UPON hearing the learned Counsel for the parties and on going through the materials on record I find that one Edwin Bason alias Edmond Bason (original plaintiff now deceased) was the absolute owner of the premises Nos. 27A and 27B, Syed Amir Ali Avenue, Calcutta - 700 017 (premises in suit). The plaintiff contended that Edwin Bason executed a registered will dated November 23, 1992 bequeathing of all his movable and immovable properties including the premises in suit in favor of the plaintiff and the executors of the will dated November 23,1992 filed a probate case after the death of the testator on July 6, 1995. That probate case is being numbered as Act 39 Case No. 111 of 1996 now pending before the Hon'ble Court, Calcutta being E.O.P.L.A. No. 1 of 2007. 4. ONE Mr. Umashankar Sadhu claimed that Edwin Bason executed another will dated March 20 of 1995 and the same was registered on Commission and it was the last will of Edwin and the executors of the will dated March 20, 1995 filed another probate case which is now pending before this Hon'ble Court, Calcutta being renumbered as Testamentary Suit No. 11 of 2006. The executors of the second will have contended that Edwin Bason executed a deed of trust on the date of execution of the will dated March 20,1995. A suit being T.S. No. 15 of 1996 has been filed by the executors of the will dated November 23, 1992 in the Alipore Court for declaration that the said deed of trust is void and the said suit is now pending before this Hon'ble Court being renumbered as E.O.S. No. 48 of 1999. Since the two probate proceedings are pending, the plaintiff has filed an application for stay of the two suits referred to above till the disposal of the two probate proceedings. 5. THE plaintiff/petitioner herein is required to file a written statement in the counter-claim and she filed the proceeding for probate, as indicated above. Therefore, the result of the probate case filed by her and the other probate case referred to above, have great impact on the written statement to be filed by the plaintiff in the counterclaim lodged by the defendant No. 3. Therefore, the result of the probate case filed by her and the other probate case referred to above, have great impact on the written statement to be filed by the plaintiff in the counterclaim lodged by the defendant No. 3. Therefore the course of action or the defence stand of the plaintiff in the counterclaim is very much dependent on the result of the two probate cases. 6. ALTHOUGH the ingredients of Section 10 of the C.P.C. relating to grant of stay of the suit filed by the plaintiff are not available here, yet I find that that plaintiff has filed the application for stay under Section 151 of the C.P.C. to determine her stand with regard to the counterclaim filed by the defendant No. 3. I have stated hereinabove that the result of the two probate proceedings has impact on the two suits and so, if the two suits referred to above are proceeded with and the plaintiff is compelled to file her written statement against the counterclaim, her stand may be in jeopardy. If she wins in the probate case, her right to the premises in suit will be declared out if she fails to succeed in the probate case, then she has no connection with the premises in suit. Thus, the result of the two probate proceedings has very much relevancy with the course of action to be adopted by the plaintiff in the two suits. Under the circumstances though the ingredients of Section 10 of the C.P.C. are not available, I am of the view that it is a fit situation where the order of stay of the two suits referred to above should have been granted by the learned Trial Judge till the disposal of the two probate proceedings. The plaintiff filed an application for stay of her own suit by filing an application under Section 151 of the C.P.C. and I think an appropriate order of stay could well be granted on an application under Section 151 of the C.P.C. In coming to such a conclusion I have considered the decision of Atula Bala Dasi and Ors. v. Nirupama Dew reported in AIR 1951 Calcutta 561 cited by Mr. Banerjee. 7. MR. Probal Kr. Mukherjee, learned Counsel appearing on behalf of the opposite party No. 3 has contended that the two suits cannot be stayed because of the probate proceedings. v. Nirupama Dew reported in AIR 1951 Calcutta 561 cited by Mr. Banerjee. 7. MR. Probal Kr. Mukherjee, learned Counsel appearing on behalf of the opposite party No. 3 has contended that the two suits cannot be stayed because of the probate proceedings. The conditions for stay have not been fulfilled in the instant situation. In support of his contention, MR. Mukherjee has referred to the decision of Binapani Kar Chowdhury v. Satyabrata Basu and Anr., reported in AIR 2006 SC 2263 : (2007)1 WBLR (SC) 327 and thus, he submits by referring to the Paragraph Nos. 5, 6, 7 and 8 that it will be appropriate to direct the trial Court, where the title suit is pending, to proceed to hear arguments and deliver judgment in the suit. Nothing further will be required if the suit is to be dismissed. But if the suit is to be decreed, the trial Court should make it clear that the judgment and decree will come into effect only on the first respondent obtaining and producing the probate of the will, and till then the decree should be considered only as provisional and not to be given effect. 8. WITH due respect to Mr. Mukherjee, I am of the view that since the course of action of the petitioner depends very much on the fate of the two probate proceedings and his right, title and interest with regard to the premises in suit are very much dependent on the result of the probate proceedings, both the two suits should be stayed till the disposal of the probate proceedings. If all the matters are allowed to proceed, simultaneously, there may occur conflict of judgments over the selfsame property. The plaintiff has prayed for stay of his own suits and as such the defendant No. 3 will not be prejudiced. If the plaintiff succeeds ultimately, the defendant No.3 will be at liberty to proceed with his counter claim in Title Suit No.88 of 1996 against the plaintiff. If the plaintiff fails to succeed in the suit, the defendant No. 3 need not claim specific performance of contract against her. In either way, the defendant No. 3 is not prejudiced in any manner. If the plaintiff fails to succeed in the suit, the defendant No. 3 need not claim specific performance of contract against her. In either way, the defendant No. 3 is not prejudiced in any manner. So in consideration of the situation prevailing in the instant matter, I am of the view that it will be safe and proper to stay further proceedings of the two suits till the disposal of the two probate proceedings. I am told that the two probate proceedings are being heard analogously and that they are at the stage of argument. So, these two probate proceedings are likely to be disposed of soon. Although, the ingredients of stay of the suits as laid down in Section 10 of the Code of Civil Procedure are not fulfilled in the instant case, in an appropriate situation, the Court is competent to grant stay of the suits. So far as the other suit being Title Suit No. 48 of 1999 is concerned, since the same is pending before the Hon'ble Court Calcutta, the petitioner may take appropriate steps before the Hon'ble Court, Calcutta as she thinks fit and proper. 9. IN that view of the matter, I am of the opinion that the learned Trial Judge should have allowed the application for stay in the manner indicated above. The impugned order, therefore, suffers from errors of law. It cannot be sustained. 10. ACCORDINGLY, the revisional application is allowed in part. The impugned order is hereby set aside. The application for stay appearing at page No. 72 in the revisional application stands allowed in the manner indicated above. All further proceedings of the two suits being T. S. No. 41 of 1994 and T.S. No. 88 of 1996 pending in the Court of learned Civil Judge (Senior Court), 2nd Court, Alipore be stayed till the disposal of the said two probate proceedings being Testamentary Suit No. 11 of 2006 and E.O.P.LA. No. 1 of 2007 (Act 39 Case No. 1 II of 1996).Considering the circumstances, there will be no order as to costs.