IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.17554 of 2010 MADHAVI SHARMA @ MADHAVI MITRA, Daughter of Late Ajit Kumar Mitra, at present Resident of Mohalla Mandichak, P.S. Kotwali, District- Bhagalpur. ……………Petitioner. Versus 1. MRINMOY KUMAR MITRA, S/O Late Ajit Kumar Mitra, Resident of Mohalla M.P. Dwivedi Road, P.S. Kotwali, District- Bhagalput. …….Respondent 1st set 2. Tanmoy Kumar Mitra, 3. Chinmoy Kumar Mitra, 4. Ranjan Mitra, All sons of Late Ajit Kumar Mitra, Resident of Mohalla M.P. Dwivedi Road, P.S. Kotwali, District Bhagalpur. 5. Manjira Mitra @ Manjira Vishwas daughter of Late Ajiot Kumar Mitra, Resident of Mohalla M.P. Dwivedi Road, P.S. Kotwali, District- Bhagalpur. …..…….Respondents 2nd Set For the Petitioner :- Alok Kr. Agrawal, Adv. For the Respondent :- None. ----------- 3 22.11.2010 Heard learned counsel for the petitioner. 2. By this writ petition, the petitioner has challenged order dated 22.3.2010 passed by the Additional District Judge- III, Bhagalpur refusing to stay Probate Case No. 6 of 2009 during the pendency of Title Suit No. 178 of 2007 pending between the same parties regarding the same properties in question. 3. It transpires that Probate Case No. 6 of 2009 was initiated by Mrinmoy Kumar Mitra (respondent no. 1) for probate of will dated 5.3.1973 said to have been executed by Ajit Kumar Mitra who is said to have died on 5.2.1992. It further transpires that earlier Title suit No. 178 2 of 2007 was filed by Tanmoy Kumar Mitra (respondent no. 2 ) for partition of his 1/6th share in the suit property, which he claims to be the ancestral property. The said suit is also pending before the Subordinate Judge, Bhagalpur. 4. So far as probate case is concerned, only the validity of execution of the will has to be seen by the court concerned, meaning thereby that the probate court will see whether the will has been executed by the person whom the applicant claims to be the testator. Probate court cannot look into the complicated question of title either of the testator or other persons of the family or even of the legatee. 5. So far Title Suit filed either for declaration of title and possession or for partition is concerned the said issues have to be seen by the court dealing with such a suit and the said court is at liberty to see whether the executant of the will had any title to execute such will or the legatee got the benefit through the said will or whether the interest of the other parties in the suit jointly or severally in the suit property had been affected by it and whether a decree of partition can be granted in the facts and circumstances of the case. 6. In the said circumstances, there was no 3 occasion for the Court to stay the proceeding of probate case awaiting the disposal of the title suit. Hence the Court was justified in refusing to stay the probate case. However before issuance of a probate, the Court below shall look into the questions raised by the other side if it is connected with the matter of probate. 7. In the said circumstances, this Court does not find any merit in this writ petition and accordingly, it is dismissed. Bhardwaj ( S.N.Hussain, J.)