Pending probate restoration application does not bar passing of preliminary partition decree in a title suit.

The appellant (Suchitra Mondal) appealed against a preliminary decree of partition passed on August 30, 2025, by the Civil Judge (Senior Division), Ranaghat.

The partition suit was instituted in 2014.

During the pendency of this suit, in 2017, the appellant filed an application for probate regarding a 2004 Will covering the same property.

However, the probate application was dismissed for default in 2022, prior to the passing of the impugned partition decree.

Although an application for restoration of the probate proceeding was filed and remains pending, the trial court proceeded to pass the preliminary decree.

1. Whether a trial court is legally barred from passing a preliminary decree in a partition suit due to a restoration application pending in a previously dismissed probate proceeding involving the same property.

The court applied the principle that a partition suit is not stalled indefinitely by the mere existence of a probate application, especially when such application stands dismissed for default.

While a pending probate proceeding typically takes precedence regarding the validity of a Will, the court held that there was "no probate proceeding pending in the eye of law" once it was dismissed for default.

The court also preserved the principle of restitution by allowing for future legal steps should the probate be granted subsequently.

The Court reasoned that at the time the preliminary decree was passed, there was no active probate proceeding because it had been dismissed for default in 2022.

The mere filing of a restoration application does not equate to a pending proceeding that would necessitate staying the partition suit.

The High Court noted the timeline: the partition suit was filed in 2014, and the probate application was only filed three years later in 2017.

The Court found no illegality in the trial judge’s decision to hear the suit, as the law does not require a partition suit to be stalled indefinitely when the probate matter is not being actively prosecuted.

The Court ensured equity by clarifying that if the probate is eventually restored and granted, the appellant maintains the right to seek consequential legal remedies against the partition decree.

The High Court dismissed the appeal (FA No. 45 of 2026) and the injunction application (CAN 1 of 2026) on contest, affirming the judgment and decree dated August 30, 2025.

The Court vacated any interim orders but granted the appellant liberty to take legal steps in the partition suit should the probate proceeding be restored and ultimately succeed.

No costs were awarded.