MP HC | Claim of share in the properties or right of succession are not pure questions of law instead they are mixed question of law and fact; Court dismisses revision warranting interference under S. 115 of CPC

Madhya Pradesh High Court: Rohit Arya, J., dismissed a revision petition which was filed after the dismissal of Petitioner’s application under Order 7 Rule 11 CPC.

The respondent/wife and three children were plaintiffs in the suit seeking relief that they were entitled to half share of the property managed by petitioner. Suit had been filed on the premise that marriage was solemnized between them 17 years ago, they were blessed with three children. Since October 2019 petitioner had ousted plaintiffs from the home and prior to that, he used to come home in a drunken state and picking up fights with his wife and also used to physically assault her. To add pain to the injury, he had also kept a lady with him by the name Pushpa and was living like husband and wife, gradually he started creating the third party right in the existing properties managed by him.

In the aforesaid backdrop of factual matrix, wife and children (now respondents) had filed the suit alleging mishandling of the property and alienation thereof to their prejudice with the assertion that they were entitled for their share in the property. The petitioner had in turn filed an application under Order 7 Rule 11 CPC styling himself to be the exclusive owner of the properties allegedly self-acquired by him.

The Trial Court had rejected the application under Order 7 Rule 11 CPC opining that only plaint averments were to be seen for deciding such an application, it further had held that the claim of share in the properties or right of succession were not pure questions of law instead they were mixed question of law and fact. Unless parties lead evidence in support of their pleadings, said questions could not be answered.

This Court while dismissing the revision held that the trial Court had applied correct principles of law while rejecting the application under Order 7 Rule 11 CPC and there was no illegality or jurisdictional error warranting interference under Section 115 of CPC.[Rajesh Vishwakarma v. Sapna Vishwakarma, 2021 SCC OnLine MP 388, decided on 19-02-2021]


Suchita Shukla, Editorial Assistant has put this story together

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