Rajasthan High Court – Jodhpur
Lrs Of Dwarkaprasad vs Lrs Of Mishrilal (2026:Rj-Jd:10787) on 25 February, 2026
[2026:RJ-JD:10787]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Writ Petition No. 23669/2025
1. Lrs Of Dwarkaprasad, S/o Shri Mishrilal Ji Jindal Through
1/1. Shailendra Jindal S/o Late Sh. Swarka Prasad, R/o D/402,
Jewel Of India Phase 1, J.l.n. Marg, Opp. Rajasthan
Hospital, Jaipur, Raj.
1/2. Smt. Premlata Jindal W/o Late Sh. Dwarka Prasad, R/o
Jindal Bhawan, 260 Sojati Gate Link Road, Jalori Bari,
Jodhpur.
1/3. Smt. Manju Agarwal D/o Late Sh. Dwarka Prasad W/o
Sarveshwar, R/o 23/24, Adarsh Nagar, Ajmer Road,
Madanganj, Kishangarh, Raj.
1/4. Smt. Anju Gupta D/o Late Sh. Dwarka Prasad W/o Rakesh
Gupta, R/o E-502, Shree Sai Baba Apartment, Sector-9,
Rohini East. New Delhi-85.
1/5. Smt. Sanju Gupta D/o Late Sh. Dwarka Prasad W/o
Rajesh Gupta, R/o Chaitanya Vihar, Face-2, 100 Ft Road,
Vrindavan (Uttar Pradesh).
1/6. Smt. Ranju Gupta D/o Late Sh. Dwarka Prasad W/o
Jagdish Gupta, R/o G-2, Virasat Residency A-34, Swag
Farm, Sundar Singh Bhandari Nagar, New Sanganer Road,
Jaipur, Raj.
1/7. Smt. Kamlesh Gupta D/o Late Sh. Dwarka Prasad W/o
Satish Gupta, R/o 159, Janta Enclave, Add Dungari Face
2, Ludhiana, Punjab.
1/8. Smt. Vimlesh Gupta D/o Late Sh. Dwarka Prasad W/o
Suvnesh Gupta, R/o 42 Residency Garden, Stadium Road,
Bareilly (Uttar Pradesh).
Petitioners No. 1/2 To 1/8 Are Represented Through
Power Of Attorney Holder Shailendra Jindal S/o Late Sh.
Dwarka Prasad, Aged 63 Years, R/o D/402, Jewel Of India
Phase 1, J.l.n. Marg, Opp. Rajasthan Hospital,
Jaipur(Raj.), Who Is The Petitioner No. 1/1 Herein.
----Petitioners
Versus
1. Lrs Of Mishrilal, S/o Late Sh. Ramnarayan Ji Jindal
Through
1/1. Smt. Leela Devi W/o Sh. Omprakash Ji, (Nivarwala)
Agrawal, R/o Sunaro Ki Ghati, Jodhpur.
1/2. Smt. Devi W/o Sh. Mohanlal Ji Agrawal Goyal, R/o Ram
Minerals, Near Railway Station, Opposite Post Office,
Barmer.
1/3. Smt. Krishna Modi @ Kanta W/o Dr. Brijmohan Ji Modi
Agrawal, R/o Mohankunj, A-5, Shyamnagar, Jaipur.
2. Hariprasad S/o Late Sh. Mishrilal Ji Jindal, R/o Near Jalori
Bari, Opposite Mahatma Gandhi Hospital, Jodhpur.
3. Trilokprasad S/o Late Sh. Mishrilal Ji Jindal, R/o Near
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Jalori Bari, Opposite Mahatma Gandhi Hospital, Jodhpur.
----Respondents
For Petitioner(s) : Mr. O.P. Mehta
For Respondent(s) : Mr. R.K. Thanvi, Sr. Advocate assisted
by Mr. Narendra Thanvi & Mr.
Mahendra Thanvi
HON'BLE MR. JUSTICE MUKESH RAJPUROHIT
Order
25/02/2026
1. The present writ petition under Article 227 of the
Constitution of India has been filed by the petitioners-plaintiffs
challenging the order dated 28.10.2025 (Annx.13) passed by the
Additional District Judge No. 5, Jodhpur Metropolitan in Civil
Original Suit No. 345/2012 titled as “LR’s of Dwarka Prasad vs.
LR‘s of Mishrilal & Ors.”, to the extent vide which application under
Order XVI Rule 1 of the Code of Civil Procedure, 1908 (for short
‘the Code’ hereinafter) seeking to summon the witnesses to the
will (Ex.123) was rejected.
2. The facts relevant for disposal of the present petition are
that Late Sh. Dwarka Prasad Jindal, father of the present
petitioners, instituted a civil suit seeking partition and permanent
injunction against his father Late Shri Mishrilal Jindal, claiming
that the properties described in paras 2 to 9 of the plaint were
joint Hindu family properties, liable to be partitioned by metes and
bounds. The defendant – Late Shri Mishrilal Jindal contested the
suit by filing a written statement denying the ancestral nature of
the properties and asserting that several of them were self-
acquired properties. Subsequently, Hari Prasad Jindal and Trilok
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Prasad Jindal (respondent Nos. 2 & 3 herein) were impleaded as
defendants and they also filed written statements denying the
existence of any HUF and asserting independent ownership over
several properties. During the pendency of the suit, Late Sh.
Mishrilal Jindal expired on 06.03.2008, and his legal
representatives were substituted on record. Later, the plaintiffs
sought amendment of the plaint under Order VI Rule 17 of the
Code, which was allowed on 19.11.2018. The defendants filed
their written statements and also challenged the amendment
order before the High Court. During the pendency of proceedings,
the original plaintiff Late Shri Dwarka Prasad Jindal expired on
03.12.2019, and the present petitioners were substituted as his
legal representatives vide order dated 10.01.2020. Thereafter, on
16.09.2025, the petitioners filed an application under Order XVI
Rule 1 CPC seeking summoning of the attesting witnesses of a Will
(Exhibit-123) allegedly executed by Late Smt. Rukmani Devi, wife
of Late Sh. Mishrilal Jindal, which had earlier been produced in
photocopy by defendant Hari Prasad Jindal. However, the trial
court dismissed the said application vide order dated 28.10.2025.
Hence, this writ petition has been preferred by the petitioners.
3. Heard learned counsel for the parties.
4. Learned counsel for the petitioners contends that the trial
court committed a factual error in treating the Will (Ex.123),
executed by Late Smt. Rukmani Devi, as a Will of Late Smt.
Lichmabai, who admittedly never executed any Will.
5. It is further submitted that the trial court erred in observing
that no earlier Will of Late Shri Mishrilal existed on record,
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whereas, the petitioners became aware of such earlier Will only
from the recital contained in Ex.123. The application for
summoning the attesting witnesses was, therefore, filed solely to
prove execution of the Will of Late Smt. Rukmani Devi and the
reference therein to the earlier Will, which according to the
petitioners, has been suppressed by the respondents.
6. It is contended that the trial court wrongly observed that
even if such earlier Will existed, it would be of no consequence in
view of the subsequent Will (Ex.A6), thereby pre-judging an
evidentiary issue without affording the petitioners an opportunity
to lead foundational evidence. It is argued that a subsequent Will
cannot be presumed to revoke an earlier Will unless such
revocation is duly established in accordance with law.
7. It is also argued that the trial court erred in holding that
Ex.123 has no relation to the disputed properties, despite the Will
specifically referring to Smt. Rukmani Devi’s partnership in
Marudhar Traders and the movable assets arising therefrom. It is
contended that the petitioners had only sought summoning of the
attesting witnesses under Order XVI Rule 1 of the Code to prove
the Will in accordance with Sections 68 and 69 of the Evidence
Act, and denial of such opportunity violates the principles of
natural justice.
8. It is further contended that the observation of the trial court
regarding non-filing of witness affidavits is misconceived, as
affidavits are required only at the stage of evidence under Order
XVIII Rule 4 of the Code. According to the petitioners, refusal to
summon the witnesses and closure of rebuttal evidence has
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deprived them of a fair opportunity to establish their case, thereby
causing serious prejudice and warranting interference under
Article 227 of the Constitution of India.
9. In support of his contention, learned counsel for the
petitioners has placed reliance upon the following decisions :-
i. Durga Parshad vs. Debi Charan and others
reported in 1978 Supreme (SC) 281
ii. H.V. Nirmala & Anr. vs. R. Sharmila & Anr.
reported in 2018 Supreme (SC) 79
iii. Abhay Kumar vs. Dhanraj reported in 2025
Supreme (Raj) 1238
iv. Harjinder Singh vs. Shyam Sunder & Ors.
reported in 2013 Supreme (Raj) 1079
v. Champa Lal Jhanwar vs. Rajkaran & Ors.
Reported 1999 Supreme (Raj) 1009
vi. Paramjeet Kaur vs. Sarjeet Kaur reported in
2023 Supreme (Raj) 1674
vii. Har Vilas vs. Kalyan Prasad reported in
1985 Supreme (Raj) 177
viii. Representatives of Maheshwari Samaj
through Ramniwas & Harvilas vs. Narendra
Kumar & Anr. reported in 2015 Supreme
(Raj) 1217
ix. Sikhandar Saheb vs. Husena Saheb
reported in 1995 Supreme (Kar) 544
x. Manoj Kumar Sharma vs. Jagdish
Thanwardas reported in 2000 Supreme
(Raj) 510
xi. M. Ram Kumar Murty vs. M. Adi Narayan
Murty and Anr. reported in 2023 3 CurCC 69
10. On the other hand, learned Senior counsel appearing for the
respondents contends that the present suit is a partition suit
concerning alleged joint Hindu family properties and that the Will
(Ex.123), purportedly executed by Smt. Rukmani Devi, has no
nexus with the suit properties.
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11. It is argued that the original plaintiff had clearly pleaded that
no written Will existed, and therefore the petitioners cannot now
introduce a new issue regarding alleged Wills at the stage of final
arguments.
12. It is further contended that Ex.123 is only a photocopy
produced during proceedings and is not relied upon even by the
defendants. The application is based merely on a recital referring
to an alleged earlier Will of Late Mishrilal Jindal, which has neither
been produced nor pleaded.
13. It is therefore urged that the trial court rightly exercised its
discretion under Order XVI Rule 1 of the Code in refusing to
summon the witnesses, and no interference is warranted under
Article 227 of the Constitution of India.
14. In support of his contentions, learned Senior Counsel for the
respondents has relied upon the decision of this Court in Jasmel
Singh vs. Sandeep Singh Gill reported in (2025) 2 CivCC 738.
15. I have considered the submission of rival parties and perused
the material available on record and the judgments cited.
16. The present suit is a partition suit instituted by Late Dwarka
Prasad Jindal, seeking division of properties alleged to constitute
joint Hindu family property. The principle issue in the suit pertains
to the nature, ownership and title of the said properties. The
petitioners have approached this Court primarily to summon the
attesting witnesses of a document marked as Ex.123, alleged to
be a Will executed by Late Smt. Rukmani Devi wife of Late Shri
Mishrilal Jindal.
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17. A careful examination of the plaint shows that the original
plaintiff had specifically averred that no written Will was executed
by the predecessors in respect of the suit properties. Ex.123,
which is a photocopy produced during the proceedings, is claimed
to be a Will of Smt. Rukmani Devi. The trial court observed that
the authenticity or validity of any Will is not directly in issue in the
present suit; further, the document does not appear to relate to
the properties described in the plaint, nor is it relied upon by the
defendants.
18. The petitioners’ reliance on judgments in Durga Parshad
(supra) and H.V. Nirmala & Anr. (supra), which concern the
summoning of witnesses to prove disputed wills or documents
crucially connected to the matter in controversy, are
distinguishable on facts, as here the Will is collateral to the main
dispute regarding joint family properties. In such circumstances,
summoning attesting witnesses would not materially assist in the
adjudication of the suit.
19. The petitioners further contend that the Will refers to an
earlier Will of Late Shri Mishrilal Jindal, which they claim to have
discovered from the recital in Exhibit-123. However, no such
earlier Will has been produced or pleaded in the suit, its contents
remain unknown and no legal issue arises in relation to it.
20. The judgments relied by the petitioners in Abhay Kumar
(supra) and Champa Lal Jhanwar (supra), involve scenarios where
the earlier documents were central to the controversy and their
existence was undisputed, unlike the present case. In the opinion
of this court, the trial court has thus, correctly concluded that
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summoning witnesses for proving a speculative or unproduced Will
would serve no useful purpose and would unnecessarily complicate
the proceedings.
21. The power to summon witnesses under Order XVI Rule 1 of
the Code vests with the trial court, to be exercised judiciously in
light of the pleadings, the relevance of the document and the
stage of proceedings. In the present case, the trial court
considered these factors before exercising its discretion. There is
no indication of arbitrariness, illegality or jurisdictional error in the
impugned order that would warrant interference under Article 227
of the Constitution of India. In the opinion of this Court, the
petitioners’ contentions do not raise any bona-fide circumstances
justifying such interference. The similar view has also been taken
by a co-ordinate bench of this Court in S.B Civil Writ Petition no.
4853/2025, dated 05.03.2025.
22. As regards the contention that the Will of Late Smt. Rukmani
Devi was mistakenly treated as that of Late Smt. Lichmabai, even
if such misidentification occurred, the Will remains collateral to the
main issue and does not affect the trial court’s evaluation of the
pleadings or the parties’ rights in relation to the joint Hindu family
properties.
23. In Shalini Shyam Shetty v. Rajendra Shankar Patil
reported in (2010) 8 SCC 329, the Hon’ble Apex Court examined
the scope of the High Court’s power under Article 227 of the
Constitution and laid down the following proposition:
“Article 227 can be invoked by the High Court suo motu as a
custodian of justice. An improper and a frequent ex ercise of this
power will be counterproductive and will divest this extraordinary(Uploaded on 10/03/2026 at 06:37:42 PM)
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[2026:RJ-JD:10787] (9 of 9) [CW-23669/2025]power of its strength and vitality. The power is discretionary and has
to be exercised very sparingly on equitable principle. This reserve
and excep tional power of judicial intervention is not to be exercised
just for grant of relief in individual cases but should be directed for
promotion of public confidence in the administration of justice in the
larger public interest whereas Article 226 is meant for protection of
individual grievances. Therefore, the power under Article 227 may
be unfet tered but its exercise is subject to high degree of judicial
discipline. The object of superintendence under Article 227, both
administrative and judicial, is to maintain efficiency, smooth and
orderly functioning of the entire machinery of justice in such a way
as it does not bring it into any disrepute. The power of interference
under Article 227 is to be kept to the minimum to ensure that the
wheel of justice does not come to a halt and the fountain of justice
re-mains pure and unpolluted in order to maintain public confidence
in the functioning of the tribunals and courts subordinate to the High
Court.”
24. In view of the foregoing discussion, this Court finds that the
order dated 28.10.2025 passed by the trial court does not suffer
from any illegality or perversity.
25. The writ petition is devoid of merit and is accordingly
dismissed.
26. Stay petition as well as all pending application(s), if any,
shall also stand disposed of.
27. It is clarified that the observations and findings recorded
herein shall not constrain the trial court in delivering its final
judgment.
(MUKESH RAJPUROHIT),J
50-/Jitender//-
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