SHERLY MATHAI Vs. SUSAMMA MATHAI

JUDGEMENT

(1.) The mechanism of reference under Sec. 113 of the Code of Civil Procedure, 1908 (the 'Code' for short) is scarcely pressed into service by the civil courts, wherefore, it's creases are not adequately delineated by judicial pronouncements. The instant facts in this Original Petition leaves room for interpretation of Sec. 113, read with Order XLVI, especially on the point, whether the requirements of Order XLVI, Rule (1) would govern a reference in terms of the proviso to Sec. 113 as well. The factual matrix may be summed up thus:

(2.) As already indicated, the defendants are claiming under the Will to exclude the plaintiff from intestate succession. Upon completion of pleadings, trial commenced, and the same was almost complete. According to the petitioners/defendants, a substantial question of law involving the interpretation of Sec. 69 of the Indian Succession Act and its constitutional vires had arisen in the case, wherefore, they filed Ext.P4 interlocutory application I.A.No.216/2017 seeking a reference of the question to the High Court under Sec. 113, read with Order XLVI. It was contended in Ext.P4 interim application that Sec. 69, which invalidates a Will upon the marriage of the testator - only insofar as persons who belongs to Christian community is concerned - is discriminatory and violative of the principles of equality enshrined in Articles 14 and 15 of the Constitution. It was further contended that Sec. 69 has not been declared unconstitutional by the High court so far. On such premise, reference was sought for. By Ext.P5 impugned order, the learned Sub Judge dismissed Ext.P4 I.A., essentially on the premise that the decree to be passed in the suit is an appealable one, wherefore a reference cannot be sought for as per Order XLVI, Rule (1). Another reason to frown upon the reference sought for is that there is no pleading in the written statement as regards the constitutional validity of Sec. 69 of the Indian Succession Act and, therefore, the said question does not arise for consideration, according to the learned Sub Judge.

(3.) Therefore, the moot questions to be answered are formulated thus: