Dismissed

Dudhnath Kallu Yadav v. Ramashankar R.Yadav and Ors. and Motichand Jagannath Yadav (Applicant)

Bombay HC23 Nov 2016CHS/1270/2016

Case brief

AI extract

What is this about?

The High Court of Bombay dismissed an application seeking DNA testing in a partition suit, holding it inconceivable. It also dismissed a separate chamber order application by the same applicant to be impleaded as an heir, stating the suit already had an heir represented and the applicant's rights were unclear. An amendment to implead other heirs of a different deceased party was allowed in part.

What did the court decide?

Chamber Summons and impleadment prayer dismissed; amendment to implead other heirs of Defendant No. 6 allowed in part.

Dudhnath Kallu Yadav Vs Ramashankar R.Yadav and Ors. and Motichand… — Partition | Bombay HC (2016)

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923-CHS1270-16.DOC

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SHEPHALI

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION CHAMABER SUMMONS NO. 1270 OF 2016

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IN

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SUIT NO. 2219 OF 2000

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WITH

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CHAMBER ORDER (L) NO. 472 OF 2016

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Dudhnat Kallu Yadav…Plaintiff
Versus
Ramshankar R. Yadhav & Ors. …Defendants
And
Motichand Jagannath Yadav...Applicant

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Mr. Satish Upadadhay, for the Applicant.
Mr. Ram Yadav,a/w Mr. Netaji Gawde, MR. Rahul Shelke, i/b
Sanjay Udeshi & Co., for the Applicant in CHOL/472/16 and
for Defendant No. 14.

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Mr. Omar Khaiyam Shaikh, a/w Ms. Madhumita Yadav, i/b J. S.
Yadav, for Defendants Nos. 9 to 12.
Mr. V. R. Yadav, Constituted Attorney for Defendant No. 4, I person,
present.

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Mr. A. R. Shaikh, i/b R. K. Singh, for Defendants Nos. 16 to 20.

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CORAM:G.S. PATEL, J
DATED:23rd November 2016

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PC:-

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CHAMBER SUMMONS NO. 1270 OF 2016:

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Page 1 of 3
23rd November 2016

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923-CHS1270-16.DOC

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1.Heard. The Applicant one Mr. Motichand J. Yadav claims to
be not a lineal descendant of the original Defendant No. 5,
Yashodadevi Fekuram Yadav (“Yashodadevi”) but a legatee under
her Will and related to her through her late husband’s brother.
Prayer clause (b) of the Chamber Summons sought a DNA test be
conducted to determine the paternity. This is inconceivable in a
partition action. In any case, this prayer is not pressed. If that is not
pressed then prayer (a) for impleadement cannot survive because
clearly prayer (a) is dependent on the result of prayer (b).

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2.If the Applicant has any rights in respect of the property, he is
at liberty to adopt such civil proceedings as he may be advised. At
present, it is difficult to see how he can claim to be a heir and legal
representative of the original Defendant No. 5, Yashodadevi,
especially since the newly added Defendant No. 5, Kilachand
Fekuram Yadav has already been impleaded in the Suit as her heir.

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3.The Chamber Summons is dismissed. There will be no order
as to costs.

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CHAMBER ORDER NO. 472 OF 2016:

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4.This Chamber Order is withdrawn to Court. It seeks to bring
on record the heirs of the deceased, Defendant No. 6. One of the
heirs is the Applicant in Chamber Summons No. 1270 of 2016,
which I have just dismissed and in which he sought to be impleaded
in place and stead of the deceased original Defendant No. 5.

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Page 2 of 3

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23rd November 2016

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923-CHS1270-16.DOC

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5.Proposed Defendant No. 6(a) is already on record as legal heir
of Defendant No. 5. He says he is not an heir of the deceased
original Defendant No. 6. The present amendment is therefore only
allowed to bring on record Defendant Nos. 6(b) and 6(c) as legal
heirs of original Defendant No. 6, and they are who are now arrayed
as Defendants Nos. 6(a) and 6(b). Mr. Premchand Jagannath Yadav
will be added as Defendant No. 6(a) and Mr. Motichand Jagannath
Yadav will be added as Defendant No. 6(b).

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6. The Chamber Order is disposed of in these terms. There will be no order as to costs. Amendment in Chamber Order is allowed in part.

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7. Amendment to be carried out on or before 9th December 2016.

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8. List the matter for direction on 9th January 2017.

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(G. S. PATEL, J.)

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Page 3 of 3

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23rd November 2016

Dudhnath Kallu Yadav v. Ramashankar R.Yadav and Ors. and Motichand Jagannath Yadav (Applicant)

Case brief

What is this about?

What did the court decide?

Dudhnath Kallu Yadav v. Ramashankar R.Yadav and Ors. and Motichand Jagannath Yadav (Applicant)

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Parties & counsel

Coram

Case details

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