RAJENDRA NAGRATH Vs. V L VOHRA

JUDGEMENT

(1.) THE writ petition has been filed by the plaintiff petitioner aggrieved by order (P/11) dated 31-8-2004 passed by XIIIth Addl. District Judge, jabalpur in Civil Suit No. 212-A/02.

(2.) PLAINTIFF has filed the instant suit for declaration that the plaintiff No. 1 Smt. Vidyavati Nagrath is the owner of 1/2 of the share of undivided suit property; and remaining half is joint Hindu family property. Declaration has also been sought that half of the suit property is joint Hindu family property. During the pendency of the suit plaintiff No. 1 Smt. Vidyavati Nagrath has executed his Will in favour of plaintiff No. 2 rajendra Nagrath. Smt. Vidyavati Nagrath had died on 26-3-1996. The Will was purported to be executed on 8-6-1992. The Will was brought on record. An application under Order 6 Rule 17 C. P. C. was filed by the plaintif which was allowed. The defendants were given opportunity to make consequential amendment. However, as per the petitioner they did not make consequential amendment. Surviving plaintiff petitioner before the trial Court filed application under Order 8 Rule 5 r/w Section 151 C. P. C. praying for the relief that as the factum of the Will has not been disputed, the defendant should not be permitted to cross-examine the witnesses, whose affidavits have been filed in support of the Will by the plaintiff, as the fact of execution of Will is admitted one.

(3.) ANOTHER application under Order 3 rules 1 and 4 C. P. C. was filed by the defendant on the ground that Shri A. S. Usmani, advocate has been cited as witness, his affidavit has been filed in support of the Will, thus, he should not be permitted to continue the case as counsel on behalf of plaintiff. The factum of the Will has been disputed by the defendant in the reply filed to the application under Order 8 Rule 5 r/w Section 151 of the C. P. C.