Madhya Pradesh High Court
Laxmibai vs Smt. Triveni Chile on 13 October, 2022
Author: Maninder S Bhatti
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE MANINDER S BHATTI
ON THE 13th OF OCTOBER, 2022
MISC. PETITION No. 4703 of 2022
BETWEEN:-
LAXMIBAI W/O LATE BHAGWANDEEN
SHANDIYA, AGED ABOUT 90 YEARS,
OCCUPATION: HOSUEWIFE CASTE SUNAR
THROUGH ITS POWER OF ATTORNEY HOLDER
PRAMOD SHANDILYA S/O LATE
BHAGWANDEEN SHANDILYA AGED ABOUT 64
YEARS OCCUPATION RETD. ADDITIONAL
COLLECTOR H.NO. DS-3 INFRONT OF GARDEN
INDRPRASTHA COLONY RING ROAD 1 RAIPUR
TEHSIL AND DISTRICT RAIPUR
(CHHATTISGARH)
.....PETITIONER
(BY SHRI SANJAY SHARMA, ADVOCATES)
AND
1. SMT. TRIVENI CHILE W/O LATE SHRI K.B.
CHILE, AGED ABOUT 78 YEARS, OCCUPATION:
HOUSEWIFE THROUGH POWER OF ATTORNEY
HOLDER SHRI SAMEER CHILE D-13A-03 KOI
TROPIKA CONDOMINIUM BATU 131/2 JALAN
PUCHONG 47100 PUCHONG SELANGH
MALASIYA (OTHER)
2. SMT. SEEMA SONI D/O LATE SHRI K.B CHILE,
AGED ABOUT 55 YEARS, OCCUPATION:
HOUSEWIFE THROUGH POWER OF ATTORNEY
HOLDER SHRI SAMEER CHILE D-13A-03 KOI
TROPIKA CONDOMINIUM BATU 131/2 JALAN
PUCHONG 47100 PUCHONG SELANGH
MALASIYA (MADHYA PRADESH)
3. SHIRISH CHILE S/O LATE SHRI K.B CHILE,
AGED ABOUT 53 YEARS, OCCUPATION:
THROUGH POWER OF ATTORNEY HOLDER
SHRI SAMEER CHILE D-13A-03 KOI TROPIKA
CONDOMINIUM BATU 131/2 JALAN PUCHONG
47100 PUCHONG SELANGH MALASIYA (OTHER
COUNTRY)
Signature Not Verified
Signed by: ASTHA SEN
Signing time:
10/18/2022 7:41:18 PM
2
4. SAMEER CHILE S/O LATE SHRI K.B CHILE,
AGED ABOUT 50 YEARS, R/O 68 DAYA NAGAR
COLONY GARHA ROAD JABALPUR (MADHYA
PRADESH)
5. SUDHIR CHILE S/O LATE SHRI LEKHRAM
CHILE R/O 16 NEAR MAHARASHTRA MANDLA
AND SHUKLA NURSING HOME WARD NO. 16
BALAGHAT (MADHYA PRADESH)
6. SMT. SUNITA SONI D/O LATE SHRI LEKHRAM
CHILE W/O SHRI SUNIL SONI R/O SIDDHI
SADAN NEAR SAI MANDIR SIDDHARTH NAGAR
ROAD WARD NO. 1 BUDHI BALAGHAT
(MADHYA PRADESH)
7. RADHELAL CHILE S/O LATE SHRI BRAJLAL
CHILE E/O SHRI ADITYA KUMAR HILE FLAT NO.
02/F SHALIMAR PATNI COLONY PIPALYANA
NEAR AGRAWAL PUBLIC SCHOOL INDORE
(MADHYA PRADESH)
8. DR. RAGHUNANDAN PRASAD CHILE S/O LATE
SHRI BRAJLAL CHILE R/O 232 MAAGANJ WARD
NO. 1 NEAR PALANDI CHOURAHA DAMOH
(MADHYA PRADESH)
.....RESPONDENTS
(NONE FOR THE RESPONDENTS)
This petition coming on for admission this day, th e court passed the
following:
ORDER
This is a petition under Article 227 of the Constitution of India
challenging the order dated 08.09.2022 (Annexure P/6) passed by the trial
Court.
Learned counsel for petitioner submits that the petitioner herein is legal
heirs of Brij Lal who died while leaving behind Nand Lal, Lekh Ram, Radhe Lal,
Krishna Lal, Raghunandan and the present petitioner Laxmi Bai. The counsel
contends that the civil suit filed by the legal representative of late Shri Krishna
Lal is pending in the trial Court in which relief for partition and declaration to the
Signature Not Verified
Signed by: ASTHA SEN
Signing time:
10/18/2022 7:41:18 PM
extent of one-fourth share of the property in question has been sought. The
counsel contends that since the present petitioner had also her share in the
property in question, the disputed property being ancestral property, an
application was moved by the present petitioner under Order 1 Rule 10 CPC
which has been declined by the Court below by passing the impugned order.
Learned counsel for petitioner has placed reliance on the decision of
Apex Court in the case of Moreshar Yadaorao Mahajan Vs. Vyankatesh
Sitaram Bhedi (D) Thr. LRS. & Ors. in Civil Appeal Nos. 5755-5756 of
2011.
Learned counsel for petitioner also submits that the order impugned
suffers from perversity inasmuch as, the Court below has failed to appreciate
that the present petitioner was necessary party. The petitioner being legal heir of
Brij Lal and sister of Krishna Lal ought to have been permitted to participate in
the proceedings inasmuch as, the interest of the petitioner herein are involved in
the property in question.
Heard the submissions made by the petitioner.
In order to appreciate the contentions as advanced by learned counsel for
petitioner, it is germane to peruse the application filed by the present petitioner
before the Court below under Order 1 Rule 10 CPC. A perusal of the
application which is filed along with this petition Annexure P/3 reveal that in
paragraph No.2 of the application, the petitioner reproduced family tree in
which the petitioner is being shown as one of the legal heir of Brij Lal. It is
stated in paragraph No.3 that the disputed property is ancestral property in
which the petitioner has 1/6th share however, along with the said application, no
documents were produced by the present petitioner to demonstrate as to
whether the petitioner had any share in the property in question. The Court
Signature Not Verified
Signed by: ASTHA SEN
Signing time:
10/18/2022 7:41:18 PM
while dealing with the application moved by the present petitioner under Order 1
Rule 10 CPC observed that the present petitioner has not produced any record
or document showing that the property in question is ancestral property of the
petitioner and has rejected the application filed by the present petitioner under
Order 1 Rule 10 CPC. While taking into consideration, the application moved
by the present petitioner under Order 1 Rule 10 CPC, this Court is of the
considered view that the said application was rightly declined by the trial Court
inasmuch as, the petitioner was required to establish her right in the property in
question. Merely upon, reproduction of family tree in the application, the
petitioner herein could not have claimed any right of participation in the
proceedings, more particularly when in paragraph No.3 of the plaint, it is stated
by the plaintiff that after the death of late Brij Lal, a registered partition deed
dated 25.11.2018 was executed between his sons namely Lekh Ram, Radhe Lal,
Krishna Lal and Raghunandan Prashad and, therefore, in the considered view of
this Court, the trial Court did not commit any error while dismissing the
application filed under Order 1 Rule 10 CPC.
However, this order impugned does not preclude the petitioner from
filing a suit if she has any interest in the property in question. The judgment
relied upon by learned counsel for petitioner in the case of Moreshar Yadaorao
Mahajan (supra) has no applicability in the present case inasmuch as, in the
present case the petitioner has failed to demonstrate before the Court below that
in her absence no effective decree can be passed by the Court below and,
therefore, there is complete failure by the petitioner herein to establish that she is
necessary party.
Accordingly, no interference is warranted and this petition stands
Signature Not Verified
Signed by: ASTHA SEN
Signing time:
10/18/2022 7:41:18 PM
dismissed.
(MANINDER S BHATTI)
JUDGE
Shub
Signature Not Verified
Signed by: ASTHA SEN
Signing time:
10/18/2022 7:41:18 PM
