MANGALABAI Vs. DATTATRAYA

JUDGEMENT

(1.) Heard. Rule. The Rule is made returnable forthwith. At the request of the both the sides the matter is heard finally at the stage of admission.

(2.) The petitioners are the original plaintiffs who have instituted a suit for partition, possession and perpetual injunction. As can be gathered, petitioners are the heirs of one Digambar. Dattatraya was the defendant No. 1 but since has died, his legal representatives have come on record. Respondent No. 2 Laxmibai (since deceased) and 3 Chabubai, who are the original defendants No. 2 and 3 are his widows and the respondent No. 4 Indumati (since deceased) and respondent No. 5 Sunita are Dattatraya's married daughters. By filing application (Exh. 126) purportedly under Order XVI Rule 1 read with Rule 21 of the Code of Civil Procedure, the petitioners sought a witness summons to be issued to the respondents Indumati and Sunita. By the impugned order the application has been rejected. Hence this petition.

(3.) At the outset it is necessary to note that, admittedly, the respondent No. 4 Indumati is no more and consequently the request to call her as a witness has become infructuous.