Harikant Tripathi vs Padmanabhi Tripathi
2022 Latest Caselaw 15436 MP

                                                                1
                                       IN THE HIGH COURT OF MADHYA PRADESH
                                                    AT JABALPUR
                                                        SA No. 1212 of 2016
                                          (HARIKANT TRIPATHI Vs PADMANABHI TRIPATHI AND OTHERS)

                           Dated : 23-11-2022
                                 Shri D.K. Pandey, learned counsel for the appellant.

                                 Shri D.K. Shukla, learned counsel for the respondents 1-2.

Shri Anand Shukla, learned panel lawyer for the respondent-5/State. In compliance of Court order dated 21.09.2022, learned counsel for the appellant has paid an amount of Rs.5,000/- in cash to Shri D.K. Shukla, learned counsel appearing on behalf of the respondent-1.

Heard on the question of admission.

This second appeal is admitted for final hearing on the following substantial questions of law:-

"1. Whether in presence of statement of attesting witness Rajeev Tripathi (DW-5), Will dated 08.10.1997 (Ex.D/5) can be said to be proved as per requirement of Section 68 of the Evidence Act?

2. Whether in absence of proof of due execution of Will in question in accordance with Section 63 of the Indian Succession Act, impugned judgment and decree are sustainable ?

3. Whether non examination of defendant-1 Padnamabhi Tripathi is fatal to the case of defendants ?"

Also heard on I.A.No13998/2016, which is an application under Order 39 Rule 1 and 2 of CPC.

Learned counsel for the appellant submits that respondents 3-6 were ex- parte before the Court below, therefore, their service is not necessary in the light of provision contained under Order 41 Rule 14 (4) of CPC. Signature Not Verified Signed by: S HUSHMAT HUSSAIN Signing time: 11/24/2022 5:25:50 PM

Accordingly, service of notice upon respondents 3-6 is dispensed with. As the respondent-1 and 2 are already represented, therefore, notice of final hearing is not required to be issued.

In view of the aforesaid. I.A.No.13998/2016 is allowed with a direction that both the parties shall maintain status-quo with regard to the suit property till the decision of the second appeal.

Accordingly, I.A.No.13998/2016 is disposed of/closed. Learned counsel for the appellant is directed to supply copy of memo of appeal along with judgment and decree passed by the Courts below to the learned counsel for the respondents 1-2.

List for final hearing in due course.

(DWARKA DHISH BANSAL) JUDGE

sh

Signature Not Verified Signed by: S HUSHMAT HUSSAIN Signing time: 11/24/2022 5:25:50 PM