Rajasthan High Court
Bhanu Srivastava Son Of Shri ... vs Smt. Premlata Srivastava Wife Of ... on 25 April, 2022
Bench: Sudesh Bansal
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil First Appeal No. 188/2022
Bhanu Srivastava Son Of Shri Chandrabhan Srivastava & Anr.
----Appellants
Versus
Smt. Premlata Srivastava Wife Of Late Shri Chandrabhan
Srivastava & Ors.
----Respondents
For Appellant(s) : Mr. Ved Prakash
For Respondent(s) : Mr. Sandeep Mathur
HON'BLE MR. JUSTICE SUDESH BANSAL
Order
25/04/2022
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
(2 of 3) [CFA-188/2022]
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 24 th 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. 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
(3 of 3) [CFA-188/2022]
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.
(SUDESH BANSAL),J
SAURABH/82
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