IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.7472 of 2011 LAKHAN CHANDRA DAS @LAKHAN DAS @ DAKHAN DAS Versus SMT.MALA DAS & ORS ----------- 4. 28.04.2011 This is an application on behalf of the petitioner praying for stay of proceeding of the suit on the ground that the Letter of Administration Case No. 255 of 2006 for issuance of probate has been filed on 19.11. 2006 on the basis of Will executed in favour of the petitioner/applicant. Therefore, it is submitted that the proceeding be stayed till issue of probate bearing L.A. No. 25 of 2006 in which a notice was issued to all the near relatives including the plaintiff of late Kali Charan Das. Vide impugned order dated 08.02.2008, the application has been rejected on the ground that the provisions of section 10 of the C.P.C. is not attracted as the Title Suit No.81 of 2005 was filed earlier to the L.A. Suit No. 25 of 2006. This finding of the trial court is not correct as this finding has been recorded on the basis that in the application of the applicant this was mentioned in the application that the application is under Section 10 of the C.P.C. Mere reference of a particular Section which is wrongly mentioned will not affect the merit of the case if source of power is other section of statute. It could be due to legal opinion not given properly. It is settled law that if the 2 testamentary succession is proved beyond doubt there it will prevail over natural succession. Thus if Will is proved beyond doubt and later probate is issued after hearing all the near relatives, that Will override the natural successor after death of executor of the Will. Therefore, the trial court ought to have stayed the proceeding in the Title Suit No. 81 of 2005 till disposal of the L.A. No. 25 of 2006. Accordingly, the writ petition is allowed. The further proceedings of Title Suit No. 81 of 2005 pending in the trial court with respect to the land in suit which is covered by Will, for which probate case is pending under L.A. No. 25 of 2006, shall remain stayed till decision of L.A. Case No. 25 of 2006. The trial court i.e. learned Sadar Munsif, Purnia, is directed to decide the L.A. No. 25 of 2006 as early as possible without granting unnecessary adjournments, within six months from the date of production of a certified copy of this order. With the aforesaid observation, the petition is disposed of. Ravi/- ( Prakash Chandra Verma, j.)