SATISH KUMAR Vs. PRAMILA DEVI AND ORS.

JUDGEMENT

(1.) Heard Mr. Lakmesh Marvind, the learned counsel appearing on behalf the petitioner. Grieved by the order of the learned court below rejecting the prayer of the defendants-petitioner under Order VII, Rule 11 C.P.C. for rejecting the plaint, the present application under Article 227 of the Constitution of India has been filed. The suit has been filed by the plaintiff claiming herself to be the widow of one Jagdish Choudhary with regard to whom the plaintiff has claimed that he became traceless from March 1995. The suit has been filed in the month of July 2002. The plaintiff has claimed partition of the suit property against her sons and daughters who are defendants in the suit.

(2.) The defendants filed the petition under Order VII, Rule 11 C.P.C. praying to reject the plaint on the ground that the plaintiff has wrongly averred that Jagdish Choudhary became traceless seven years ago. It was the case of the defendants that Jagdish Choudhary did not become traceless seven years ago but only in the year 1998.

(3.) Mr. Marvind, the learned counsel for the petitioner, after some argument, has sought to raise the question of maintainability of the suit in view of the provision of Section 23 of the Hindu Succession Act as it stood before amendment in the year 2005 and has submitted that although this issue was not raised by the petitioner in the petition questioning the maintainability of the suit but it can be raised as a question of law on the basis of undisputed facts.