The petitioner is a defendant in the suit. The plaintiff filed a suit for permanent injunction on the basis of unregistered will in the year 1994.
Learned counsel for the petitioner submitted that the petitioner has filed a testamentary case no. 30 of 2010 in which notice has been issued and the plaintiff in the present suit has put his appearance and issues have been framed. In Suit no. 604 of 1994, filed by the plaintiff, the petitioner moved an application that since the testamentary case is pending before this Court, the proceeding may be kept in abeyance. The said application has been rejected. Hence the present writ petition.
Learned counsel for the petitioner submitted that in the case of Chiranjilal Shrilal Goenka (Deceased) Through Lrs. Vs. Jasjit Singh, reported in 1993 (2) JT-341, the Apex Court has held that the probate court has only exclusive jurisdiction to grant the probate of the will and has only jurisdiction to examine the validity of the will. He submitted that the validity of the will, which is the basis of filing of the suit can only be examined in testamentary case which is pending and, therefore, the proceeding of the present suit is liable to be stayed.
The matter requires consideration.
Issue notice to respondent no. 1 returnable at an early date. The petitioner may take steps to serve the respondent by registered post.
List in the week commencing 16.8.2011.
Till the next date of listing the proceeding of suit no. 604 of 1994 shall remain stayed.
Order Date :- 7.7.2011 OP