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1988 DIGILAW 247 (MP)

Hari Devi v. Drishna Devi

1988-09-29

S.K.SETH

body1988
ORDER S.K. Seth, J.- l. This plaintiff is the mother of Shyam Sunder Wadhwani who died on 18-6-1981. The defendant No.1 is the widow of Shyam Sunder Wadhwani. The defendant No.2 is the daughter, and the defendants 3 and 4 are the sons of Sunder Wadhwani. 2. It was claimed by the plaintiff that after the death of her son Shyam Sunder Wadhwani she and the defendants inherited the immovable and moveable properties left behind by him. It was accordingly that she filed a suit for partition and separate possession against the defendants in respect of the properties said to have been left behind by Shyam Sunder Wadhwani. 3. In the written-statement filed on behalf of the defendant, it was not denied that the plaintiff had a right to inherit the properties, if any left behind by Shyam Sunder Wadhwani as a co-heir along with them. But, then, it was denied by them that Shyam Sunder Wadhwani left behind any immovable or moveable properties described by the plaintiff in her plaint. As far as the immovable properties were concerned, it was alleged by them that the plot of land situated in Kasturba Nagar locality in the city of Bhopal was acquired by the defendant No.1 on lease from the State Bank of India Officers Co-operative Housing Society by a registered lease deed dated 22-2-1983 in her own name and she builta house thereon with her own money. With regard to the Khandar plot situated in Matawali Gali locality in the city of Bhopal, it was claimed by them that it was wrong to say that Shyam Sunder Wadhwani had purchased the same Benami in the name of defendant No.1 vide registered sale-deed dated 25-9-1978. It was submitted by them that it was the defendant No.1 who had purchased the said plot vide the said sale-deed from her own savings and sold it later on for a sum of Rs.18,000/- to defendant No.5 Syed Amjad Ali on 30-9-1985. 4. As far as the moveable properties were concerned, it was denied by the defendants that Shyam Sunder Wadhwani left behind any bank deposits or cash money. With regard to the insurance policies, it was submitted by them that the same had been obtained by the deceased for the benefit of the defendants i.e. his wife and children declaring the defendant No.1 as the nominee to receive payments thereunder. With regard to the insurance policies, it was submitted by them that the same had been obtained by the deceased for the benefit of the defendants i.e. his wife and children declaring the defendant No.1 as the nominee to receive payments thereunder. It was admitted by them that after the death of Shyam Sunder Wadhwani the Life Insurance Corporation paid the amounts covered by the insurance policies to the defendant No.1. It was claimed that under section 6 of the Married Womens' Property Act, 1974, the insurance money belonged to the defendant No.1 absolutely and the money did not form part of the estate left behind by the deceased. With regard to the provident fund and gratuity amounts lying in the name of the deceased, there was a similar claim made to the effect that the said amounts did not form part of the estate of the deceased for the reason that the defendant No.1 had been declared as the nominee under the rules by the deceased to receive the payments after his death. It was admitted that the employers of the deceased had paid the above said amounts to the defendant No.1 for her benefit and that of defendants 2 to 4. It was alleged that the plaintiff had no share in the said amounts. With regard to the domestic articles like furniture, utensils, radio, etc., it was denied by them that the deceased left behind any such articles with them. 5. Now, before the evidence in the case could commence, the plaintiff made an application to the Court on 23-10-1986 under order 11, rule 12 of the Code of Civil Procedure for directing the defendants 1 to 4 to make discovery on oath of the documents which were in their possession or power relating to the subject-matter of the suit. Some of the documents in respect of which the discovery was sought by the plaintiff were specifically mentioned in the application. The application was opposed by the defendants 1 to 4. The Court, after hearing the parties, rejected the application vide its order dated 1-1-1987. It is being aggrieved by it that the plaintiff has filed the present revision in this Court. 5. The application was opposed by the defendants 1 to 4. The Court, after hearing the parties, rejected the application vide its order dated 1-1-1987. It is being aggrieved by it that the plaintiff has filed the present revision in this Court. 5. Now, in the facts and circumstance, as mentioned above, it is beyond doubt that the plaintiff in her capacity as the mother of deceased Shyam Sunder Wadhwani was entitled to a share in the estate left behind by him as a co-heir along with other heirs of the deceased namely defendants 1 to 4. The only serious question which was required to be tried in the case was as to what was the extent of the estate left behind by the deceased. In the said regard, it is not to be forgotten that the defendants 1 to 4 being the widow and the children of the deceased it was not unreasonable to assume that all the relevant documents pertaining to the abovesaid question were in their possession. A perusal of the application under order 11, rule 12 of the Code of Civil Procedure made by the plaintiff would show that the documents in respect of which recovery was sought by her from the defendants 1 to 4 were such as were bound to throw light on the abovesaid question. In the circumstances, it is surprising that the trial Court rejected the application made by the plaintiff by its cryptic order dated 1-1-1987. It is not understandable as to how the question of fishing out evidence of the defendants was involved in the application made by the plaintiff. 6. It is settled law that the object of discovery of documents was two fold: (i) to secure, as far as possible, that all material documents were disclosed by putting the opposite party on oath as to the documents in its possession or power with the consequent penalties attached to a false oath and (ii) to put an end to what otherwise may lead to a protracted enquiry as to the material documents actually in the possession or under the control of the opposite party. Where it is obvious that the decision of the matter would depend to a very large extent upon documentary evidence the case is essentially one in which recourse should be taken to the provisions of order 11, rule 12 of the Code and the Court should not refuse the application of a party for discovery of the documents. 7. In fact, in M.B. Sethi v. R.P. Kapur AIR 1972 SC 2379 , the Supreme Court had an occasion to consider the scope and extent of the provision of order 11, rule 12 of the Code of Civil Procedure. It was pointed out by the Supreme' Court that it was sufficient if the documents would be relevant for the purposes of throwing light on the matter in controversy. It was explained by it that every document which will throw any light on the case is a document relating to a matter in dispute in the proceedings, though it might not be admissible in evidence. In other words, a document might be inadmissible in evidence, yet it may contain information which may either directly or indirectly enable the party seeking discovery either to advance or damage the adversary's case or which may lead to a trial of enquiry which may have either of these two consequences. It was further explained by it that the word 'document' in the particular context includes anything that is written or printed, no matter what the material may be upon which the writing or printing is inserted or imprinted. 8. Bearing in mind the scope and extent of the provisions of order 11, rule 12 of the Code of Civil Procedure as mentioned above, in the opinion of this Court, the documents of which the discovery was sought by the plaintiff in her application dated 23-10-1986 were relevant for throwing light on the question as to the extent of the estate left behind by deceased Shyam Sunder Wadhwani and were, therefore, relevant. Accordingly, while rejecting the application for discovery made by the plaintiff, the trial Court acted with material irregularity in the exercise of jurisdiction vested in it. The prejudice caused to the plaintiff by the said order is apparent. 9. For the reasons stated above, the revision is allowed. The order dated 1-1-1987 passed by the trial Court is set aside. Accordingly, while rejecting the application for discovery made by the plaintiff, the trial Court acted with material irregularity in the exercise of jurisdiction vested in it. The prejudice caused to the plaintiff by the said order is apparent. 9. For the reasons stated above, the revision is allowed. The order dated 1-1-1987 passed by the trial Court is set aside. The application dated 23-10-1986 made by the plaintiff under order 11, rule 12 of the Code of Civil Procedure is allowed. The defendants 1 to 4 are directed to make the discovery on oath of the documents which are mentioned in the said application. 10. There shall be no order as to costs of this revision.