PRATIBHA MOHTA Vs. SANJAY BAORI AND ORS.

JUDGEMENT

(1.) This petition filed under Article 227 of the Constitution takes exception to the order dated 4.11.2009, whereby the applications preferred by the present petitioner under Order 14 Rule 5, CPC and Order 8 Rule 1(A)(3) CPC is rejected by the court below.

(2.) In a probate proceeding, the present petitioner filed an application dated 26.8.2009. In the said application, it is contended that the present application is preferred to obtain probate certificate. The objector has raised a categorical objection that the gift deed dated 30.7.1950 was called in question in earlier Case No. 1A/1979 (renumbered as 76A/1987). The said matter was referred for adjudication before an Arbitrator. The Arbitrator by his award dated 22.4.1992 found that the said gift deed was invalid and found that the property in question is liable to be partitioned. Smt. Rukmani Devi was aware about this order since beginning. Hence, she has no right to execute a will in relation to the said property. Accordingly, following issue is required to be framed-

(3.) Criticizing this order, Shri Bharadwaj, learned senior counsel submits that Chapter XVII, Section 2, Rule 43 of MP High Court Rules and Orders, 2008, makes it clear that provisions of Code of Civil Procedure are applicable. Reliance is also placed in this regard on section 10 of M.P. Civil Courts Act, 1958. By placing reliance on Smt. Satyawati v. State of Rajasthan, 1996 AIHC 342, it is contended that the court below has erred in holding that provisions of CPC are not applicable. He relied on an order of this Court dated 28.7.1997, passed in C.R. No. 559/1997 (Smt. Rukmani Devi Babari v. Smt. Pratibha Mohata and others), wherein following issue was framed by this Court:--