1. The facts leading to this application, briefly, are as follows : One Lila Sing, otherwise known as Lila Singh, died intestate on 30th July 1941, at Bhagalpur within the jurisdiction of the District Court of that district. She left behind certain property. The petitioner, Provabati Debi, and the respondent Ajit Mullick have both applied for letters of administration to the estate of the deceased. The petitioner has applied in the Court of the District Judge of Bhagalpur and the respondent in this Court. The petitioner is the daughter of Deep Narain Singh by his wife Ramanundi Debi. She alleges that Lila Singh was the second wife of Deep Narain Singh and claims to be the heiress of her step-mother. The respondent Ajit Mullick is the son of Lila Singh by her husband Sisir Kumar Mullick who divorced her. He claims to be the sole heir of his mother.
2. The present application by Provabati Debi is for stay of the proceedings in this Court till the disposal of the proceedings in the Court at Bhagalpur. This prayer is based on Section 10, Civil P.C. In the alternative Provabati claims that Ajit Kumar Mullick should be restrained from proceeding with the application in this Court till the disposal of the application in the Court at Bhagalpur on grounds of convenience. I shall first deal with that portion of the application which is based on Section 10, Civil P.C. It is pointed out on behalf of the petitioner that the substantial issue in both applications is the same, viz., whether Provabati or Ajit Mullick is the heir of Lila Singh and that the application in the Bhagalpur Court was commenced 11 days prior to the application in this Court, it is argued that for these reasons Section 10, Civil P.C., applied and that this Court is bound to stay the proceedings here. On behalf of Ajit Mullick Mr. Banerjee resists the application on three grounds. First, he says that Section 10, Civil P.C., is limited to suits and has no application to proceedings for letters of administration. Secondly, he argues that there is really no legally instituted proceeding at Bhagalpur inasmuch as the court-fees have not yet been paid and consequently Section 10 has no application. Thirdly, he contends that as the Bhagalpur Court has no jurisdiction to grant the relief claimed in the proceedings in this Court, one of the elements necessary for a stay under Section 10 being granted is absent, and consequently no stay should be granted. In my opinion, the first two grounds cannot be sustained, but the last ground must prevail. Section 10, Civil P.C., is as follows:
No Court shall proceed with the trial of any suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit between the same parties, or between parties under whom they or any of them claim litigating under the same title where such suit is pending in the same or any other Court in British India having jurisdiction to grant the relief claimed or in any Court beyond the limits of British India established or continued by the Governor-General in Council, and having like jurisdiction or before His Majesty in Council.
3. I am of opinion that the section applies to applications for letters of administration by reason of the provisions of Section 141, Civil P.C., which enacts that the procedure provided in the Code in regard to suits shall be followed as far as it can be made applicable in all proceedings in any Court of civil jurisdiction. The term 'all proceedings in any Court of civil jurisdiction' has been the subject of judicial interpretation and it is now well settled that it includes all proceedings relating to original matters in the nature of suits such as an application for probate or letters of administration. Mr. Banerjee admits that this is so but he argues that all that Section 141 has laid down is that the procedure provided for the trial of suits is to be followed in the trial of applications relating to original matters like applications for probate or letters of administration. Section 10, he argues, does not deal with such questions of procedure; it deals with the right of a party to get a suit stayed which is a substantive right and not a matter of procedure. I am unable to accept this argument. Section 141 runs thus:
The procedure provided in this Code in regard to suits shall be followed, as far as it can be made applicable, in all proceedings in any Court of civil jurisdiction.
4. Its terms are wider than what is suggested by Mr. Banerjee. The section is not limited to the internal procedure regulating the conduct of the trial of a suit, but it embraces wider matters of procedure, viz., procedure provided in this Court in regard to suits. Now let us examine the provisions of Section 10. It lays down that when a suit is pending before a Court it shall not proceed with its trial if certain circumstances are present. True, the section has nothing to do with the mode in which the trial of a suit is to be conducted but it does deal with the procedure which the Court is to follow in respect of a pending suit when the existence of certain matters is brought to its notice. In other words it deals with a question of procedure in regard to suits. That being so, by virtue of the provisions of Section 141, Section 10 is applicable to an application for letters of administration.
5. In support of the second point my attention was drawn to the provisions of Section 19-I, Court-fees Act, which provides that no order entitling a petitioner to the grant of letters of administration shall be made until the petitioner has paid the fee mentioned in the schedule to the Court-fees Act. It is pointed out that this fee has not been paid, and it is argued that there is, therefore, no competent application before the Court. In my opinion the provisions of Section 19-I, Court-fees Act, instead of supporting Mr. Banerjee's contention destroys it. The section says that the Court shall not grant probate until the fees are paid. It does not say that the Court shall not try an application for probate or letters of administration until the fees are paid or that the payment of the fees is a condition precedent to the making of the application. I hold, therefore, that there is a properly constituted application for letters of administration before the Bhagalpur Court.
6. I now come to the last objection which has been raised on behalf of the respondent. It is quite clear from the affidavits that Government securities, shares in companies and debentures to the value of over Rs. 80,000 belonging to the estate of Lila Singh are lying with Messrs. Grindlay & Co., Bankers at Calcutta. The contention on behalf of the respondent is that the Court at Bhagalpur cannot grant letters of administration with respect to these properties and that as it has not got jurisdiction to grant the relief claimed by him, Section 10 can have no application. On behalf of the petitioner, Mr. Roy meets the objection in two ways : first he says that although these shares and securities are in the custody of Messrs. Grindlay & Co., at Calcutta, the safe custody receipt is at Bhagalpur and, therefore, it must be held that these properties are situated at Bhagalpur. In these circumstances he asserts that there can be no difficulty in the way of the District Court of Bhagalpur granting letters of administration which would include these properties. The second contention on behalf of the petitioner is that even if it be held that these properties are not situate at Bhagalpur, nevertheless Section 10 would apply inasmuch as the relief claimed is the granting of letters of administration and the question as to the situation of the property in respect of which letters are applied for has nothing to do with the relief claimed.
7. I shall now deal with the first point raised by Mr. Roy on behalf of the petitioner. I might mention in passing that the respondent does not admit that there was any such safe custody receipt found at Bhagalpur, and it seems to me that no such safe custody receipt was found. The inventory of the collector of Bhagalpur indicates that certain letters from Messrs. Grindlay & Co. were found at Bhagalpur, but there is no mention of any safe custody receipt in this inventory. Be that as it may, even if it be held that a safe custody receipt relating to the properties was found among the effects of the deceased at Bhagalpur, I fail to see how that would bring the properties to which the safe custody receipt relates within the jurisdiction of the Bhagalpur Court. The receipt does not represent the securities or the shares. It is merely a document granted by the bank to its constituent to evidence the fact that the bank possesses certain property of the constituent in its safe custody. The position, therefore, is that property to the extent of over Rs. 80,000 is lying at Calcutta outside the jurisdiction of the Court at Bhagalpur. Now it is clear from the provisions of Section 273, Succession Act, that the District Judge of Bhagalpur cannot grant letters of administration in respect of these properties. The section provides that the letters of administration granted by a District Court shall take effect over all property within the province and such property without the province as is certified by the District Judge to be of value which does not exceed Rs. 10,000. Here the property outside the province is admittedly over Rs. 80,000 in value and consequently the District Judge of Bhagalpur could not grant letters of administration in respect of it. This disposes of the first branch of Mr. Roy 's argument.
8. I now take up the second line of his argument. Before Section 10 can apply two circumstances must co-exist : first, the matter in issue in both the applications must be substantially the same; and, secondly, the Court in Bhagalpur must have the jurisdiction to grant the relief claimed in this Court. It may be said that the question involved in both the applications is whether Provabati or Ajit Mullick is the heir of Lila Singh, and that substantially the issue is the same in both the applications. The first element necessary for the application of Section 10, Civil P.C., is present but is the second element present? I am of opinion that it is not. The relief claimed by Ajit Mullick in this Court is the grant of letters of administration to the entire estate of Lila Singh which includes, as I have held, property of over Rs. 80,000 in value situate in Calcutta. The District Court of Bhagalpur cannot grant such letters of administration. I cannot accept Mr. Roy's argument that in deciding what the relief claimed is one must not consider the property with respect to which the letters of administration are sought. I cannot conceive of letters of administration independently of the property with respect to which they are sought. One cannot apply for letters of administration in vacuo. The relief sought in this Court is, inter alia, in respect of the above mentioned shares and securities. The Court at Bhagalpur not having jurisdiction to grant the relief claimed by the respondent in the application before this Court Section 10 can have no application. The prayer for stay must, therefore, be dismissed.
9. I now take up for consideration the alternative relief claimed, namely, an injunction restraining Ajit Mullick from proceeding with his application here on the ground that it would be more convenient to have the application heard at Bhagalpur. It is said that the petitioner is a woman residing at Bhagalpur, that she has no residence in Calcutta, and nobody here to advise her or look after proceedings on her behalf, and that she would be seriously prejudiced if the proceedings in Calcutta are not stayed. This is the only ground stated in the petition for an injunction; other grounds are mentioned in the affidavit in reply. On the other hand, it is established by the affidavit of Ajit Kumar Mullick that he is an officer of the Bengal and Assam Railway who is doing special war work necessitating his being at Calcutta. It would be extremely difficult, if not impossible, for him to get leave to go out of Calcutta. The question to be decided is mainly one of law, most of the facts being admitted. The evidence to prove the facts which are not admitted can be adduced as easily here as at Bhagalpur. Further, this Court can deal with the entire estate left by the deceased, whereas the Bhagalpur Court has restricted jurisdiction. In these circumstances I consider that the balance of convenience is in favour of the application being tried here. This application must, therefore, be dismissed with costs.