Allowed

Smt. Neelu Jain v. Smt. Belu Maheshwari and 3 Ors.

Allahabad HC11 May 2022FAPL/264/2016

Case brief

AI extract

What is this about?

The High Court allowed an appeal against the dismissal of a succession suit. The trial court had dismissed the suit as collusive despite no objection being raised. The High Court set aside the judgment, noted an understanding between most parties, and remanded the matter to the trial court for alternative dispute resolution and further trial.

What did the court decide?

The judgment and decree of the Trial Court are set aside. The matter is remanded to the Trial Court for trial after alternative dispute redressal. Time is granted to the respondent to file a reply and

Smt. Neelu Jain Vs Smt. Belu Maheshwari and 3… — Succession and Inheritance | Allahabad HC (2022)

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Court No. - 2 Case :- FIRST APPEAL No. - 264 of 2016 Appellant :- Smt. Neelu Jain Respondent :- Smt. Belu Maheshwari And 3 Ors. Counsel for Appellant :- Shakti Swarup Nigam,Alok Kumar Srivastava,Deba Siddiqui,Nipun Singh,Salil Kumar Rai Counsel for Respondent :- A.K.Singh,Abu Bakht,Rahul Agarwal

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Hon'ble Dr. Kaushal Jayendra Thaker,J. Hon'ble Ajai Tyagi,J.

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Heard Sri P.K.Jain, Senior Advocate assisted by Sri Himanshu Singh, Advocate, Sri Nipun Singh, Advocate and Sri Rahul Agarwal for respondent.

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This appeal challenges the dismissal of suit preferred by the present plaintiff / appellant against all the respondent. Respondent No. 4 did not appear before the Trial Court. Respondent No. 1 , 2 and 3 did not contest as the will dated 18.6.2006 was accepted by all . Despite that on 9.3.2016 namely after one decade the court below dismissed the suit on the ground that it was a collusive suit .

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The Trial Court held that no cause of action arose as the contesting respondent did not raise any objection. The suit was for getting the some of the properties in the name of the plaintiff.

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The learned Trial Judge has dismissed the suit on totally non germane grounds. Once the suit was not contested the provision of C.P Code had to be invoked by the Court below. There was no bar under Section 34 of the Specific Relief Act, 1963 to bring the suit before the Court for a declaration as prayed in the Court.

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The suit being 206 of 2014 was dismissed in the year 2016 which has given rise to this appeal.

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We have requested the parties to go for conciliation as they are relatives and only respondent no. 4 contests that to before this Court before the Trial Court qua respondent no. 4 the matter remained ex-parte but here the respondent no. 4 has appeared and objected to the appeal being allowed and therefore we quash and set aside the judgment is not tenable on the facts and law.

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The finding of facts are unsustainable and are bad in eye of law. It is nobodies case that the plaintiff was not entitled to any

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share in the property as per law.

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The will was not objected to by any of the contesting parties. During the hearing before this Court, the parties have come to a sort of understanding therefore the order of Trial Court dismissing the suit is require to be set aside. The respondent no.4 who has not appeared before the Trial Court is the only contesting respondent who has objected and therefore we relegate the parties to the learned Trial Court with consent giving a chance to respondent no. 4 to file reply.

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Learned counsel appears for respondent no. 4 prays and is granted eight weeks time to file reply from today before the Trial Court. These eight weeks would be after the four weeks for trying amicable solution. The respondent may seek further time if there are fruitful discussions during these four weeks by and between the parties.

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The Trial Court would tryout the alternative dispute redressal mechanism as out of five sisters, four sisters are agreeable and only one sister namely respondent no. 4 is not consenting to the appeal being allowed and therefore the aforesaid arrangement. This exercise would be taken up immediately on receipt of this order by the Court below where Original Suit No. 206 of 2014 in the Court of Civil Judge ( Senior Division) is pending.

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The appeal is allowed. The judgment and decree of the Trial Court is set aside. The evidence of the witnesses is over. If the respondent no. 4 files reply and wants to lead evidence, the Trial Court shall permit the same. The plaintiff will also be at liberty to file rejoinder affidavit and lead evidence. However, this exercise would if the parties during these four weeks do not come to a amicable solution .

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Record be sent back to the Trial Court.

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Order Date :- 11.5.2022/Mukesh

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Digitally signed by MUKESH SRIVASTAVA Date: 2022.05.18 11:34:24 IST Reason: Location: High Court of Judicature at Allahabad

Smt. Neelu Jain v. Smt. Belu Maheshwari and 3 Ors.

Case brief

What is this about?

What did the court decide?

Smt. Neelu Jain v. Smt. Belu Maheshwari and 3 Ors.

Case brief

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What did the court decide?

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