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2018 DIGILAW 693 (RAJ)

Nagraj Jain v. Kesarimal Jain

2018-03-06

PUSHPENDRA SINGH BHATI

body2018
JUDGMENT Pushpendra Singh Bhati, J. -The petitioners have preferred this writ petition, claiming the following reliefs: "a) By appropriate writ, order or direction the impugned order dated 20.09.2017 (Annexure-7) passed by learned Additional District & Sessions Judge, Bali (Camp. Desuri) may kindly be quashed and set aside and the application filed by the defendant-petitioners under Order 8 Rule 1A(3) may kindly be allowed. b) Any other order or direction which the Hon'ble Court feels appropriate in favour of the petitioners in light of justice, equity and good conscience may also be passed. c) Cost of the petition may kindly be awarded to the petitioners." 2. The respondent-plaintiff had filed a suit for partition and injunction against the petitioners, the partition suit was filed against the real brother, sisters as well as against the father of the respondent-plaintiff. The bone of contention was whether the property was joint property, ancestral property or self acquired property. The respondent-plaintiff claimed the share in the property on the basis of the same being ancestral property. The petitioners-defendants filed a written statement that the property is self acquired and thus, cannot be partitioned as a joint property. 3. Learned counsel for the petitioners states that after the death of father, they have come to know about the will which was in existence in their favour and if the property is declared as self acquired then, the will could be of vital importance for adjudication of the suit. The petitioners-defendants therefore, preferred an application under Order 8 Rule 1 A(3) of CPC which was rejected by the learned court below on the ground that if at all there was a will then the same should have been brought on record by father of the petitioners-defendants late Mr. Champa Lai. 4. Learned counsel for the petitioners further submits that if the property is declared to be self acquired then it should be open for respondents to contest the will as it would definitely pave way for a proper adjudication. 5. Learned counsel for the respondent has opposed the prayers on the ground that the will in question has suddenly arrived after a long time of filing the written statement and since the will was not mentioned in the written statement, therefore, taking the will on record at this stage would prejudice the respondents. 6. 5. Learned counsel for the respondent has opposed the prayers on the ground that the will in question has suddenly arrived after a long time of filing the written statement and since the will was not mentioned in the written statement, therefore, taking the will on record at this stage would prejudice the respondents. 6. After hearing learned counsel for the parties and perusing the record of the case, this Court is of the opinion that at the time of written statement, the father Late Champa Lal himself was alive and therefore, the proposition of will could not have been taken on record and was not chosen to be brought on record by the father of the parties. Now the petitioners-defendants who are also the children of Late Champa Lal have discovered the will and thus, wanted it to be taken on record subject to complete opportunity to the respondents to refute the will. 7. This Court finds in light of the fact that late Champa Lal was alive at the time of filing of the written statement, therefore, the will is a subsequent event and would have gained significance only after the death of the father late Champa Lal, who at that time did not chose to disclose the same. 8. In light of the aforesaid observations, the present petition is allowed and the application filed by the petitioners- defendants under Order 8 Rule 1A(3) CPC is allowed while setting aside the impugned order dated 20.09.2017 and the learned court below is directed to take the will on record. However, taking the will on record shall not create any right until the same is appropriately proved by the petitioners strictly in accordance with law. It is needless to say that the respondents shall have complete liberty to refute the document taken on record.