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2022 DIGILAW 1290 (RAJ)

Bhanu Srivastava v. Premlata Srivastava

2022-04-25

SUDESH BANSAL

body2022
JUDGMENT 1. By way of this first appeal, appellant-defendant Nos.1 & 2 have assailed the judgment and preliminary decree for partition dated 16.12.2021 passed by Additional District Judge No.1, Kota in Civil Suit No.10/2016 whereby the suit property comprising plot No.B-5 at Civil Lines, Kota has been declared to be divided in 1/6 share to each co-sharer who are living natural successors of deceased Shri. Chandrabhan Shrivastava. 2. It transpires from judgment that plaintiff No.1-Smt. Premlata Shrivastava wife of late Shri. Chandrabhan Shrivastava had executed a will dated 28.01.2008 bequeathing her share in the suit property in favour of her daughter plaintiff No.4-Smt. Purnima Saxena. Since during course of present civil suit for partition, plaintiff No.1-Smt. Premlata Shrivastava passed away, hence plaintiff No.4-Smt. Purnima Saxena applied for issuance of probate. The probate was issued. The order of probate was challenged before this Court by way of filing S.B. Civil Misc. Appeal No.5905/2017 by appellant-defendant No.2-Lt. Col. Anil Kumar Shrivastava. This Court, in the appeal, vide order dated 24th August, 2018 directed the trial Court to make valuation for the purpose of payment of court fee on the probate. It may be observed that the order of probate is related to the share of Smt. Premlata Shrivastava. Since, in the present civil suit for partition, the trial Court has declared 1/6 undivided share of plaintiff No.1-Smt. Premlata Shrivastava and has declared the share of other plaintiffs and defendants. As far as, the allocation of shares made by trial court in the judgment dated 16.12.2021, appears to be prima facie lawful and the main dispute is about the further division of 1/6 share came to plaintiff No.1- Smt. Premlata Shrivastava. 3. Learned counsel for appellants vehemently submits that parties are likely to settle the dispute in relation to the share of plaintiff No.1-Smt. Premlata Shrivastava which as per trial court's judgment goes in share of plaintiff No.4 on the basis of will, whereas proceedings of probate on will have not yet finalized. Hence, on this point, parties may be allowed to undertake the proceedings of mediation and the record of trial court be summoned. 4. Learned counsel appearing for respondents does not oppose that if parties are ready to mediate the dispute, it is always open for them. 5. Hence, on this point, parties may be allowed to undertake the proceedings of mediation and the record of trial court be summoned. 4. Learned counsel appearing for respondents does not oppose that if parties are ready to mediate the dispute, it is always open for them. 5. Having heard counsel for both parties, this Court finds that the present appeal arises in relation to the preliminary decree for partition, hence the first appeal is admitted for hearing. 6. Since, the Court is satisfied that the division made by the trial court, prima facie lawful and in accordance with provisions of the Hindu Succession Act, let the trial court be proceed with the proceedings of preparation of final decree. However, the final decree shall remain subject to outcome of first appeal. In the meanwhile, both parties shall maintain status quo as to alienation and possession in relation to the suit property, as it exists today, during course of this appeal. With aforesaid direction, the stay application stands disposed of. Issue notice. Since, counsel for respondents-plaintiffs No.1 to 4 has already put in appearance, no need to issue notices to them. Issue notice to remaining respondents. 7. As far as the mediation is concerned, parties may undertake the proceedings of mediation and in case mediation remains successful, the appropriate orders in this appeal would be passed accordingly. 8. Both parties are directed to remain present before the Mediation Centre at Rajasthan High Court, Jaipur on 05.05.2022.