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16. 8.2013 Shri Bramhadatt Singh, counsel for the applicants. None for the respondent No.1 although served. In the available circumstances, the presence of respondent No.2 is not required. This appeal is listed today for consideration of IA No.5691/13 an application for grant of stay against further proceedings of the Succession Case No.8/12 pending in the court of XI Civil Judge, Class-I, Jabalpur. Earlier, this revision was admitted vide order dated 16.5.13 and pursuant to that against respondent No.1, the further proceedings of aforesaid case before the trial court was stayed. Looking to the nature of the question involved in this revision, instead to hear the same on the aforesaid IA, with the consent of the applicants counsel, the same is heard on merits. Heard. ORDER
(Oral) 1. The applicants (who are impleaded as non-applicants in the trial court) have filed this revision under section 115 of the CPC being aggrieved by the order dated 30.1.13 passed by the aforesaid XI Civil Judge Class-I, Jabalpur in Succession Case No.8/12 whereby their application filed under order 7 rule 11 of the C.P.C for dismissal of the respondents case filed under section 372 of the Indian Succession Act (for short the Act) for issuing the succession certificate with respect of the property of Late Ramchandra Manohar Bhalerao, has been dismissed.
2. Applicant's counsel after taking me through the papers placed on the record along with the impugned order argued that respondent No.1 has filed the aforesaid petition before the trial court under section 372 of the Act on the strength of some unregistered Will dated 5.7.10, as alleged, executed, by said Ramchandra Manohar Bhalerao for issuing the succession certificate in his favor with respect of the movable and immovable property. While the responding the aforesaid petition in reply of the applicants, the execution of 2 C.R No.215 of 2013 the aforesaid Will in favor of respondent No.1 by said deceased, has been denied and alleged properties are claimed by the applicants themselves on the strength of some other Will dated 20.6.2010 executed by said Ramchandra Manohar Bhalerao and on the strength of such Will, the applicants have also claimed the succession certificate. Some other objections regarding entertainability of the aforesaid proceedings under section 372 of the Act along with the objection that in respect of some movable and entire immovable properties of the deceased, such provision is not applicable, were also taken.
3. In pendency of the aforesaid case, the impugned application dated 25.11.11 (Anenx.P/2) was filed on behalf of the applicants under Order 7 rule 11 of the CPC for dismissal of the said petition. On consideration, the same has been dismissed holding that the issues raised by the parties including the issue regarding sustainability of aforesaid both the Wills, could be adjudicated as per the provision of Evidence Act only after recording the evidence of the parties. Simultaneously, it was also held that the objection of the applicants that unless the prayer of probate in respect of the alleged Will was resolved, the impugned petition could not be entertained holding that no probate is necessary for the person of Hindu community in the State of M.P. And the IA was dismissed by the trial court, on which, the applicants have come to this court.
4. After hearing the counsel, keeping in view the arguments, I have gone through the papers placed on the record. It appears from the impugned order that the questions raised in the aforesaid application by the applicants has not been finally decided by the trial court and only some of the objections have been answered. Apart this, the impugned order has been passed by the trial court taking into consideration, the earleir decided case of this court in the matter of Munna Khan Vs. Smt Kamla Bai- MPWN 2001 1) 143. In the available circumstances, I am of the considered view that the petition regarding tenability of the impugned proceedings filed by the respondent No.1 under section 372 of the Act with respect of the alleged 3 C.R No.215 of 2013 property of the deceased could not be adjudicated at the initial stage either on the aforesaid application or by framing any preliminary issue because same requires appreciation of the evidence of the parties which is to be adduced during trial by them. So, in such premises, at present, the impugned order does not appear to be perverse or contrary to the propriety of the law. Thus the same is not required an interference at this stage. Pursuant to it, the same deserves to be dismissed.
5. However, it is observed that the question was raised by the applicants in the aforesaid impugned application (Annex.P/2) so also the other question if the same is raised by way of amendment application or otherwise in the reply of the written statement before the trial court then the such court shall decide the same after framing the issues in accordance with the scheme of order 14 rule 2 of the CPC. It is observed that any finding or the observation made by the trial court in the order impugned or by this court in the present order shall not come in the way of the trial court to decide the aforesaid question afresh on appreciation of the evidence. As such, the trial court shall be at liberty to pass the appropriate order on the aforesaid question without being influenced from any observation or finding made either in the impugned order or of this order.
6. The revision is dismissed with aforesaid directions, observations and liberty. (U.C.Maheshwari) Judge MKL