Allowed

Dr.Subhalakshmi Atmaram Jaiswal v. Mr.Rahul Asoorya and 3 others

Telangana HC12 Jan 2024CRP/821/2023

Case brief

AI extract

What is this about?

The High Court allowed this revision petition, setting aside the trial court order that had not marked a certified copy of a probated will. The Court held that marking questions must be addressed at the time of marking, not as a preliminary discussion on validity.

What did the court decide?

Civil Revision Petition allowed; order of trial court dated 01.02.2023 set aside; trial court directed to dispose of the case expeditiously.

Dr.Subhalakshmi Atmaram Jaiswal Vs Mr.Rahul… — Succession and Inheritance | Telangana HC (2024)

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IN THE HIGH COURT FOR THE STATE OF^TELANGANA AT HYDERABAD

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FRIDAY, THE TWELFTH DAY OF JANUARY TWO THOUSAND AND TWENTY FOUR

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PRESENT

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THE HONOURABLE SMT JUSTICE K. SUJANA

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CIVIL REVISION PETITION NO: 821 OF 2023

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Petition Under Nlicle 227 of Constitution of lndra aggrieved by the order dated 01-02-2023 in LA No'1689 of 2022 in O.S.No. 1009 of 2014 on the^{file of the} Court of the Xl Additional Chief Judge, City Civil Courts, Hyderabad.

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Between:

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DR.SUBHALAKSHTVI ATMARAM JAISWAL, Wo. Atmaram Jaiswal, Aged about 65 years, Occ. professor and Head Department of ENT, R/o.Unique Apartments, behind Maharashtra Bank, Ashok Chowk, Solapur Rep by her GPA Holder^[Vlr Atmaram Jaiswal ...PETITIONER/ Plaintiff

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AND

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1 . MR.RAHUL ASOORYA S/o. Jethender Nath Asoorya, Aged about 34^years, Occ. Advocate, R/o.H.No 4-1-52611 , Behind G.P O., Troop Bazar, Urdu Galli, Abids, Hyderabad.

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MRS PREETI ASOORYA, Wo Mr Rahul Asoorya, Aged about^{26 yoars,} Occ. Household,

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MR.JETHENDER NATH ASOORYA, S/o Late Rai Harish Chandra Asoorya, aged about 59 years, Occ-Business

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MRS SUSHMA RANI, Wo.Jethender Nath Asoorya, Aged about 54'years, Occ. Household,

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All are R/o. H. N o.4-1-52611, Behind G.P.O-, Troop Bazar, Urdu Galli, Abids, Hyderabad.

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...RESPONDENTS/ Defendants

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lA NO: 1 OF 2023

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Petition under Section 151 CPC praying that in the circumstances statedⁱⁿ the affidavit filed in support of the petitron, the High Court may be^{pleased to grant} STAY of all further proceedrngs in O.S. No.'l 009 of 2014 on the^{ftle of learnedXl} Additional Chief Judge, City Civil Courts, Hyderabad

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Counsel for the Petitioner: SRl. SUJTTH JAISWAL

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Counsel for the Respondents: SRI K. RAJENDRAN

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The Court made the following ORDER:

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THE HONOURABLE SMT. JUSTICE K. SUJANA CML REVISION PETITION No.82l of 2023

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ORDER:

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Aggrieved b1, the order dated O1.O2.2023 in^I.A.No.1689 of 2022 in O.S.No.1009 of 2O14^passed by^{the Court of} learned XI Additional Chief Judge, City Civil^Courts, Hyderabad, the present Civil Revision Petition is filed

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I.A.No.1689 of 2022 is filed under Section 15i of CPC read r'vith Section 65 ol the Indian Evidence Act not to mark the copy of alleged will deed dated 28.05.1996 in the suit. The petitioners therein submitted that petitioner No.1 therein is the defendant No.l in the main suit seeking recovery of possession of the schedule property based on the alleged wili deed dated 28.05.1996 vide Judgment of Probate dated 29.04.2006 in C M.A.No.l38 of 1999 passed by the Civil Judge, Senior Division, Sholapur. He further submitted that the plaintiff filed chief affidavit and list of documents including copy of alleged probate wiil, dated 28.05. 1996. The forged and fabricated will brought on record through written statement filed by defendant.

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The petitioncr herein filed counter stating that the present petition is at premature stage of marking of

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)

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.s(,s.J c R P No 821 0t)023

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documents on behalfl of p.W. I . A certified copy ol. Will deed dated 28.05. 1996 is intended to mark by the petitioner videapplication No. l38 of lggg is allowed on 29.O4.2006. Thereafter, no appeal is preferred and the first appeal was disposed off on 20.Og.2Ol1, subsequently, the defendants have filed restoration perition and it is pending and the Original Will dated 28.OS.1996 is under the Custody of the Honble High Court of Bombay by virtue of the First Appeal. He further submitted that since CMA.No.l3g of 1999 is pending, the plaintiff filed rejoinder. The genuineness appeal is not in dispute before Sholapur Court. Thereby, a certified copy of Will was marked. He filed the present petition seeking not to mark a copy of wiI which cannot be entertained at this preliminary stage ar-rd it is liable to be dismissed. The trial court after hearing on both sides, aliowed the petition stating that only the original will can to prove or disprove their contents, not its certified copy. Hence, the present Civil Revision Petition.

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Heard Sri Sujith Jaiswal, learned counsel for the revision petitioner as well as Sri K. Rajendran, learned counsel for the respondents.

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Ia-.^ -.-*=d-.. ,..

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.s(.', "r C.R P.,\o 821 o/'2023

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Learned counsel for the petitioner submitted that Will is not a private document when it is after the probate. The Probate Court has been conferred with an exclusive jurisdiction to probate of the will of the deceased annexed to the petition, on grant or refusal thereof, it has to preserve the original will produced before it. The grant of probate is final subject to appeal, if any, or revocation if made in terms of the provisions of the Succession Act. It is a judgment in rem ald conclusive and binds not only the parties but also the entire world. As such, in view of the observation of the trial Court in the impugned order that Will deed dated 28.05.1996 is a private document and the certified copv cannot marked etc., is erroneous.

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Learned counsel for the petitioner further submitted that as already the probate has been issued in respect of Will dated 28.O5.1996 by a competent Court at Sholapur, Maharashtra, it cannot be rejected for marking, as such, prayed the Court to set aside the order of the trial Court by allowing this Civil Revision Petition.

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On the other hand, learned counsel for the respondents relied on the judgment of various High Courts and the Hon,ble Supreme Courts according to probate granted in other State

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s(5../ ( R.P \o tl) I ol )0)l -llr-

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is not a finding, even though it is a probate taken contemplates the will, as such, prayed the Court to dismiss the Petition.

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Having regard to the nval submissions made by both the learned counsels and having gone through the material available on record, the present petition is filed not to mark the document, which is filed along \4.ith the chief afhdavit of P.W.1 in O.S.No.1O09 of 2074. The trial Court discussed the validity of the document and the objection for marking of document has to be taken at the stage of marking of^the documents. The document was not yet numbered to^mark the evidence. Mere marking of document does not mean^to prove all the contents. It is at premature stage to discuss about the validity of the document. Any document^accepted in the Court has to be proved by the party.^{Therefore,before} taking the document as evidence, the trial Court^{went on} discussing about the contents of documents^{whether it is a} public document or a private document. Since it is not^the stage to discuss about the validity of documents,^{whether it} proves the plaintiff'case, the trial Court crred in entertaining the petition filed for praying the Court not to mark the^said document. This Court, without expressing any opinion^with

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s(s / l;. R. P No.,\21 oJ 202 )

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regard to the validity and proof of document, deems it appropriate to set aside the order of the triat Court as it is a premature stage and an objection for marking of the document has to be taken at the time of marking the documents and it is not the stage to discuss al1 about the proof.

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With the above observation, this Civil Revision petition is ailowed setting aside the order of the trial Court dated Ol.O2 2023 in LA.No.1689 of 2022 in O.S.No.1009 of 2014 passed by the Court of learned XI Additional Chief Judge, City Civil Courts, Hyderabad. Further, the trial Court is directed to dispose of the case as expeditiously as possible. There shall be no order as to costs.

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As a sequel, miscellaneous petitions, pending if any, shall stand closed.

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Sd/- P. PADMANABHA REDDY, ASSISTANT REGISTRAR ^^^/ //TRUE COPY// \y SECTION OFFICER

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The Xl Additional Chief Judge, City^{Civil Courts, Hyderabad}

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One CC to SRl. SUJITH JAISWAL, Advocate [OPUC]

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One CC to SRl. K. RAJENDRAN, Advocate [OPUC]

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Two CD Copies

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HIGH COURT

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DATED:121O112024

ORDER

CRP.No.821 ol 2023

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Dr.Subhalakshmi Atmaram Jaiswal v. Mr.Rahul Asoorya and 3 others

Case brief

What is this about?

What did the court decide?

Dr.Subhalakshmi Atmaram Jaiswal v. Mr.Rahul Asoorya and 3 others

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

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