IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.8004 of 2011 MATHURA SHARMA Versus MAHENDRA SHARMA & ORS ----------- 7 05.05.2011 Mr. Sandeep Patil, learned counsel for respondent No.10 has appeared. Heard. This petition has been filed by the petitioner challenging the order dated 5.5.2005 passed by the learned Sub-Judge-VIII by which he has rejected the application for partition by which the petitioner has made an request that the suit for partition may be stayed till probate case is not decided, filed by the petitioner. It is settled law that testamentary succession will override the natural succession if the Will is proved and probate is issued. Since, the case for issuance of letters of administration was pending in Probate Case No.10 of 2003, the trial court ought to have awaited decision in the Probate Case as if the letter of administration is issued in favour of the petitioner, the petitioner would be one of the share holders and the property of the subject matter of the Will, will be excluded from the property sought to be partitioned. In view of the above observation made, the order impugned passed by learned Sub-Judge-VIII, Vaishali at Hajipur is set aside. The trial court is directed to decide the 2 application afresh after giving full opportunity to all the parties in the light of the observation made above. The petition is disposed of. Ravi/- ( Prakash Chandra Verma, j.)