JUDGMENT
Subhro Kamal Mukherjee, J.
1. This is an application under Article 227 of the Constitution of India against Order No. 66 dated October 12, 2004 passed by the learned Civil Judge (Senior Division), Ninth Court at Alipore, District South 24-Parganas in Title Suit No. 100 of 1997. By the order impugned the learned Trial Judge stayed all further proceedings in the said suit till the disposal of P.L.A. No. 166 of 1995 pending before this Court.
2. Title Suit No. 100 of 1997 has been instituted by Asoke Kumar Himmatsinghka, the petitioner in this application, for partition of premises No. 68/1/A, Purna Das Road, Police Station – Lake Place, Kolkata – 700029. The plaintiff claimed undivided half share of the said premises.
3. Originally Jamunadevi Himmatsinghka, since deceased, and Siriya Devi Himmatsinghka, since deceased, were the owners of the said premises in equal shares. The said Jamunadevi Himmatsinghka died on January 22,1976. Under her Will dated January 9, 1975, she bequeathed her undivided half share in the said premises to the said plaintiff. The executor named and appointed in the said Will on January 20, 1994 duly executed a deed of assent in favour of the said plaintiff after obtaining the probate of the said Will.
4. Originally, the said suit was instituted against Rejendra Kumar Himmatsinghka, Vinod Kumar Himmatsinghka, Sreemati Sashikala Patodia and Sreemati Sashi Prabaha Saha being the natural heirs and legal representatives of the said Siriya Debi Himmatsinghka.
5. In the said suit three sets of written statements have been filed. In the written statement filed by the defendant Nos. 1 and 4. it is stated that Siriya Debi Himmatsinghka died leaving behind her Will and the said defendants Nos. 1 and 4 would not acquire any interest in the suit property. It is stated that Ajay Kumar Himmatsinghka, Abhay Kumar Himmatsinghka and Shrimati Niva Himmatsinghka, the wife of Vinod Kumar Himmatsinghka, are the legatees under the Will. It is, further, stated that an application for grant of probate is now pending in this Court.
6. The defendant No 2, Vinod Kumar Himmatsinghka filed his written statement and made similar statements in the said written statements.
7. The defendant No 3, also, filed her written statement. It is noteworthy that in the said written statement there is no whisper of the Will of the said Siriya Debi Himmatsinghka.
8. The plaintiff, in order to expedite the hearing of the suit and to avoid future controversy, applied under Order 1 Rule 10 of the Code of Civil Procedure for addition of the legatees under the Will of Siriya Himmatsinghka and the legatees have been impleaded as defendant Nos. 5 to 8 in the said suit.
9. The added defendant Nos. 6, 7 and 8 applied in the said suit, under Section 151 of the Code of Civil Procedure read with Section 213 of the Indian Succession Act, 1925, for stay of the said suit till the disposal of the probate proceeding in respect of the Will of the said Siriya Debi Himmatsinghka now pending before this Court. It is contended in the said application, in support of such prayers for stay, that all further proceedings in the said suit should be stayed “to avoid all further complications and for a fair and complete adjudication of the matter in dispute” and “these Defendants acquire title to the ‘suit property’ by virtue of the said probated Will”.
10. The learned Trial Judge by the order impugned dated October 12, 2004 allowed the said application and stayed all further proceedings in the suit till the decision of the probate case pending before this Court. The learned Judge recorded in the order that an application for grant of probate in respect of the’ Will of the said Siriya Debi Himmatsinghka being P.L.A. No. 166 of 1995 has been pending in the testamentary and intestate jurisdiction before this Court. In passing the order impugned the learned Judge heavily relied upon a decision in the case of Amar Chandra Roy and Anr. v. Abanidhar Roy and Ors., reported in 84 CWN 267.
11. The moot question involved in this application is whether the learned Trial Judge was justified in staying of all further proceedings in the partition suit on account of pendency of the probate proceeding in respect of the last Will and testament of the said Siriya Debi Himmatsinghka ?
12. The stay has been granted in exercise of the power of the Court under Section 151 of the Code of Civil Procedure. No party has a right to insist on the Court to exercise’ its inherent jurisdiction. The reliance placed by the learned Judge in Amar Chandra Roy (supra) is misplaced. The Division Bench in the said decision has not laid down any general proposition of law that whenever a probate proceeding is pending, the suit shall be stayed. In my view, there cannot be any fixed jacket formula that as the probate proceeding in respect of the Will of one of the parties to the suit is pending, the suit shall remain stayed. The power to grant stay is to be exercised by the Court in exceptional circumstances for ends of justice and to prevent abuse of the process of the Court.
13. In this case, the present plaintiff is no way concerned with the Will of Siriya Debi Himmatsinghka. The grandmother of the plaintiff was owner to the extent of 50% undivided interest in the premises. She, in her will, bequeathed her right, title and interest in the property in favour of the plaintiff. Siriya Debi Himmatsinghka was the owner of the other undivided 50% in the said premises. Originally, the plaintiff instituted the suit against the natural heirs of Siriya Debi Himmatsinghka for partition. In the written statement, the defendant Nos. 1, 2 and 4, inter alia, disclosed that Siriya Debi Himmatsinghka died leaving a Will and the proceeding for grant of probate has been pending before the High Court at Calcutta. To avoid further controversy in the matter, the plaintiff applied for addition of the legatees under the Will as parties/ defendants in the suit.
14. The executor named and appointed in the Will was. already a party to the suit. The heirs at law and the legatees are, also, parties.
15. The concern expressed by the learned Judge in the order impugned that under the Will the distribution was not proportionate to the heirs left by the said Siriya Devi Himmatsinghka is of no consequence inasmuch as there could be joint allotment in respect of the estate of the said Siriya Devi Himmatsinghka.
16. If the order granting stay is continued, the plaintiff shall suffer irreparable loss and injury. We do not know when the probate proceeding would be concluded. It is not known whether it is a contentious cause or not. It cannot be ruled out that in order to put the plaintiff, who is undisputedly 50% owner of the premises, into unnecessary harassments the natural heirs and legal representatives of the said Shreemati Siriya Debi Himmatsinghka and the legatees named in the Will are prolonging the probate proceeding in collusion amongst themselves. It will be sheer injustice if the plaintiff is asked to wait to get his legitimate share because his co-sharers are litigating amongst themselves.
17. Therefore, there was no justification in staying of all further proceedings in the suit. In the event the Will is probated before the disposal of the suit, the executor alone should be made to represent the estate of the deceased.
18. The order impugned is, therefore, set aside. The application filed by the defendant Nos. 6 to 8 under Section 151 of the Code of Civil Procedure read with Section 213 of the Indian Succession Act, 1925 is dismissed. The learned Trial Judge is directed to proceed with the suit. I trust and hope that the learned Trial Judge shall be able to pass at least the preliminary decree in the partition suit before the commencement of the long vacation of the Civil Courts for the year 2005. In order to expedite the hearing of the suit, I authorise the learned Trial Judge not to grant any unnecessary adjournment to either of the parties.
19. The application is, thus, allowed.
20. I, however, direct the parties to bear their respective costs in this application.
21. Let xerox plain copy of this order, if applied for, be supplied to the learned Advocate for both the parties on usual undertaking.