The petitioner is a defendant in the suit. The plaintiffs filed a suit for partition and claimed shares in the property in dispute on the basis of the Will executed in their favour. One set of the defendant filed another Will claiming shares on the basis of another Will. Another 2nd set of the defendants filed third Will claiming their share on the basis of the Will. The defendants moved an application under Order 7 Rule 11 C.P.C. for the return of the plaint on the ground that the claim on the basis of the Will cannot be adjudicated unless the Will is approved by the competent court by issuing the probate under Section 213 of the Indian Succession Act (hereinafter referred to as the "Act") and, therefore, the plaint is liable to be returned.
In the suit, two issues, namely, issue nos. 6 & 7 have been framed. It was framed that whether the suit is barred by Section 213 of the Act and whether barred under Order 7 Rule 11 C.P.C. Both the issues have been decided against the revisionist by the impugned order and, therefore, the present revision has been filed.
Learned counsel for the revisionist submitted that unless under Section 213 of the Act, the probate is sought in respect of the Will, no claim can be made against the Will and, therefore, the claim of partition on the basis of the Will is not sustainable and the plaint is liable to be returned.
In support of the contention, learned counsel for the revisionist relied upon the decisions in the case of Ram Shankar Vs. Balakdas, reported in AIR 1992 Madhya Pradesh-224, T. Venkata Narayana and others Vs. Smt. Venkata Subbamma (dead) and others, reported in AIR 1996 S.C.-1807 and Amar Deep Singh Vs. The State & Ors., reported in AIR 2006 Delhi-190.
The matter requires consideration.
Issue notice to the respondents returnable at an early date. The revisionist may take steps to serve the respondents within a week by registered post.
List in the week commencing 16.8.2011.
Till the next date of listing, the proceeding in Original Suit No. 710 of 2005 pending before the Additional Civil Judge, Senior Division, Court No. 2, Meerut (Chaitanya Prakash Vs. Ravindra Kumar and others) shall remain stayed.
Order Date :- 7.7.2011 OP