Research › Search › Judgment

Patna High Court · body

2016 DIGILAW 1688 (PAT)

In Re: Kauleshwari Devi v. .

2016-12-23

BIRENDRA PRASAD VERMA

body2016
ORDER : Birendra Prasad Verma, J. 1. Heard the learned counsel appearing on behalf of the petitioners and also perused the office note dated 22.12.2016. The present Test Case has been filed under Section 276, purportedly read with Section 300 of the Indian Succession Act, 1925 by three petitioners namely Surendra Prasad Yadav S/o Sri Bhuneshwar Pd. Yadav, Anand Kumar S/o Sri Sita Ram Yadav and Pappu Kumar S/o late Laxman Yadav, all claiming to be executors of the alleged last Will dated 31st January, 2015, executed by the testator late Kauleshwari Devi, widow of late Teka Gope. In the petition filed on behalf of the petitioners, names of the near relatives have been given in paragraph-4. 2. The learned counsel appearing on behalf of the petitioners submits that in the present test case general citation was issued in two daily newspapers, one in English and other in Hindi, which were finally accepted by this Court. He further submits that the special citations were issued to all the near relatives, mentioned in paragraph No. 4 of the petition, but in spite of valid service of special citations, none of them have filed caveat or objection resisting the prayer made on behalf of the petitioners in the present test case. 3. In the aforesaid factual matrices, it is pleaded by the learned counsel for the petitioners that now only the witnesses are required to be examined on behalf of the petitioners in support of their case, but the issues are not required to be settled, as there is no denial or objection to the pleas raised on behalf of the petitioners in the present test case. In support of his above contention, he has placed reliance on the provisions of Order XIV Rule 1 C.P.C. 4. In order to appreciate the submissions made by the learned counsel appearing on behalf of the petitioners, it would be appropriate to examine the provisions of Order XIV Rule 1 C.P.C. which reads as follows: "1. Framing of issues.--(1) Issues arise when a material proposition of fact or law is affirmed by the one party and denied by the other. (2) Material propositions are those propositions of law or fact which a plaintiff must allege in order to show a right to sue or a defendant must allege in, order to constitute his defence. Framing of issues.--(1) Issues arise when a material proposition of fact or law is affirmed by the one party and denied by the other. (2) Material propositions are those propositions of law or fact which a plaintiff must allege in order to show a right to sue or a defendant must allege in, order to constitute his defence. (3) Each material proposition affirmed by one party and denied by the other shall form the subject of a distinct issue. (4) Issues are of two kinds: (a) issues of fact, (b) issues of law. (5) At the first hearing of the suit the Court shall, after reading the plaint and the written statements, if any, and [after examination under Rule 2 of Order X and after hearing the parties or their pleaders], ascertain upon what material propositions of fact or of law the parties are at variance, and shall thereupon proceed to frame and record the issues on which the right decision of the case appears to depend. (6) Nothing in this rule requires the Court to frame and record issues where the defendant at the first hearing of the suit makes no defence." 5. From the plain reading of the provisions contained in Order XIV Rule 1(1) C.P.C. it is apparent that the issues are required to be settled only when material proposition of fact or law is affirmed by one party and denial by the other. Furthermore, on examination of the provisions contained in Order XIV Rule 1(6) of C.P.C. it is further-apparent that even if the defendants have appeared in the suit and have made no defence at the first hearing, then in that case also, issues are not required to be framed or recorded-by the Court. In the present case, the material proposition of facts as also law affirmed by the petitioners have admittedly not been denied by any of the near relatives. Indisputably, the Near Relatives of the testatrix have not filed any caveat or objection in terms of Chapter XI of the Patna High Court Rules, though general citation was issued in two daily newspapers and the special citations have been validly served upon them. 6. Now, taking into consideration the aforesaid factual matrices of the present case and the legal provisions, noticed above, this Court is of the considered opinion that in the present test case, the issues are not required to be settled. 6. Now, taking into consideration the aforesaid factual matrices of the present case and the legal provisions, noticed above, this Court is of the considered opinion that in the present test case, the issues are not required to be settled. However, witnesses on behalf of the petitioners shall be examined for deciding the claims of the petitioners raised in the present test case. 7. In above view of the matter, the learned counsel appearing on behalf of the petitioners shall file examination-in-chief on affidavit of all the witnesses, if not already filed, proposed to be examined in support of the present case, within a maximum period of four weeks. As prayed by the learned counsel appearing on behalf of the petitioners, list this matter after four weeks for fixing the date for examination of the witnesses.