Vidya Devi And Others vs Manorma Wati And Others

Sandeep Sharma, J

Instant petition filed under Art.227 of the Constitution of India lays challenge to order dated 21.11.2017 passed by learned Civil Judge (Senior Division), Sirmaur District at Nahan (HP) in C.M.A. No. 617/6 of 2017 in Civil Suit No. 30/1 of 2016, titled Manormawati vs. Vidya Devi, whereby an application under Order XIV Rule 5 read with S.151 CPC filed by petitioner-defendant No.1 (hereinafter, 'defendant No.1'), praying therein to frame additional issues, came to be dismissed.

In nutshell, case of the defendant, as projected in the petition at hand and as argued by Mr. Vivek Negi, Advocate is that learned Court below has failed to frame proper issues on the basis of pleadings adduced on record by the parties to the lis. As per defendant No.1, if the application having been filed by her under Order XIV, Rule 5 CPC, praying therein to frame additional issues, is not allowed at this stage, it would lead to multiplicity of litigation inter se parties in future. By way of application in question (Annexure P-3), defendant No.1 has proposed certain issues to be framed, however, said prayer came to be rejected by learned Court below vide order dated 21.11.2017.

Having heard learned counsel for the parties and perused the material available on record, especially plaint and written statement thereto, this Court is persuaded to agree with Mr. Vivek Negi, learned counsel for the defendant, that issue No. 2 i.e., "Whether the Will No.3/2016 dated 12-01-2016 executed on 23-12- 2015 by Late Sh. Mohan Lal is not a valid and lawful Will, as claimed? OPD.", has not been framed properly because, admittedly, in the case at hand, defendants No. 1 to 3 have claimed suit property on the basis of Will No. 3 of 2016, dated 12.1.2016, allegedly executed by late Mohan Lal in their favour. No doubt, being propounder, onus is always upon the person who sets up the Will, but in the case at hand, defendants are only required to prove that Will No. 3 of 2016, dated 12.1.2016, executed on 23.12.2015 by late Mohan Lal, is valid and lawful, as such, Court below ought to have framed Issue No.2 in the following manner:

"Whether Will No. 3 of 2016, dated 12.1.2016, executed on 23.12.2015 by late Mohan Lal, is a valid and lawful Will, as claimed?"

Similarly, this Court finds that learned Court below has erred while framing Issue No.3 i.e. "Whether defendant No.1 is legally wedded wife of Late Sh. Mohan Lal, as claimed? OPD", because admittedly, property in question is being claimed by defendant No.1 and defendants No.2 and 3 being wife and daughters, respectively, of late Mohan Lal. Though this Court is of the view that since there is no dispute, if any, with regard to paternity of defendants No. 2 and 3, they are not required to lead specific evidence, if any, with regard to the same, however, definitely, learned Court below, with a view to avoid complications at a later stage, could frame issue referred herein above in the following manner:

"Whether defendant No.1 and defendants No.2 and 3 are legally wedded wife and daughters, respectively, of late Mohan Lal, as claimed?"

Most importantly, in the case at hand, this Court having carefully perused the averments contained in the plaint, finds that the plaintiffs have set up a specific case that the property in question never came into the hands of late Mohan Lal from his ancestors as such, for all intents and purposes, same is a joint Hindu coparcenary property. Aforesaid averment has been specifically denied by the defendants in their written statement, who have stated that the property, which is subject matter of Will, is self-acquired, as such, this Court is inclined to agree with learned counsel for defendant No.1 that learned Court below ought to have framed a specific issue in this regard.

Mr. Ashok K. Tyagi, Advocate, appearing for the respondents-plaintiffs (hereinafter, 'plaintiffs'), while making this Court to peruse the prayer clause of the plaint, strenuously argued that in view of specific declaration sought in the suit, no issue with regard to nature of suit property is/was required to be framed, however, this Court is not in agreement with the aforesaid submission of Mr. Tyagi for the reason that bare perusal of relief prayed for in the suit, suggests that the plaintiffs has sought declaration to the effect that they are co-owner-in-possession of the suit property detailed in the suit. Needless to say, a person can be co-owner-in-possession of a property in any capacity as such, in peculiar facts of the case at hand, no prejudice would be caused to the plaintiffs, if an issue with regard to the nature of the property is also framed, rather, it will enable learned Court below to decide the case at hand in a most effective manner.

True it is that in the application filed under Order XIV, Rule 5 CPC, there is no mention made by defendant No.1 with regard to issue of ancestral property, but this Court, solely with a view to have effective adjudication of the case, can always order framing of issue, which is borne out from the pleadings of the parties.

Accordingly, in view of above, present petition is allowed. Order dated 21.11.2017 passed by learned Civil Judge (Senior Division), Sirmaur District at Nahan (HP) in C.M.A. No. 617/6 of 2017 in Civil Suit No. 30/1 of 2016 is quashed and set aside and following issues are ordered to be substituted in place of Issues No.2 and 3:

Whether Will No. 3 of 2016, dated 12.1.2016, executed on 23.12.2015 by late Mohan Lal, is a valid and lawful Will, as claimed? OPD

Whether defendant No.1 and defendants No.2 and 3 are legally wedded wife and daughters, respectively, of late Mohan Lal, as claimed? OPD

Besides above, a new issue viz. 1A is ordered to be framed after Issue No.1 in the following manner:

1A. Whether the nature of the suit property in the hands of late Mohan Lal was ancestral, as claimed? OPP

The petition stands disposed of, alongwith all pending applications. Interim direction, if any, shall stand vacated.