Kai Shivdas Bhaga Chaudhari Died ... vs Gajanan Ramdas Chaudhari And ...
2016 Latest Caselaw 6857 Bom

                                                                     907_WP1046016.odt


             
                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                                              
                            BENCH AT AURANGABAD

                            WRIT PETITION NO. 10460 OF 2016




                                                      
    Kai Shivdas bhaga Chaudhari
    (Deceased) Through L.Rs.




                                                     
    1.  Nilkant Shivdas Chaudhari
         Age: 58 years, Occu.: Agri.,

    2.  Sandeep Shivdas Chaudhari




                                                
         Age: 58 years, Occu.: Agri.,
                                    
         Both R/o Gat No.6, Tq. & Dist. Dhule.               ..PETITIONERS

                   VERSUS
                                   
    1.  Gajanan Ramdas Chaudhari
         Age: 53 years, Occu.; Business.
         

    2.  Kalpesh Gajanan Chaudhari
         Age: 31 years, Occu.: Business.
      



    3.  Hitesh Gajanan Chaudhari
         Age: 24 years, Occu.: Business.





    4.  Gitesh @ Jitesh Gajanan Chaudhari
         Age: 22 years, Occu.: Education.

    5.  Gayatri Ravindra Chaudhari
         Age: 28 years, Occu.: Houshold,





         All R/o House No. 1963, Galli No.6,
         Near Kondaji Vyayam School,
         Dhule, Tq. & Dist. Dhule.                           ..RESPONDENTS
                                       ....
    Mr. A.N.Sabnis, Advocate h/f Mr. N.L. Choudhri, Advocate for petitioners.
    Mr. K.C. Sant, Advocate for Respondent Nos.1 to 4.

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                                                  ....




                                                                                           
                                              CORAM :  T.V. NALAWADE, J.

DATED : 01st DECEMBER, 2016

ORAL JUDGMENT :

1. Rule. Rule made returnable forthwith. Heard both sides by

consent for final disposal.

2. The proceeding is filed to challenge the order made on Exhibit

60 filed in Probate Application No. 06 of 2013 which is pending in the

Court of Civil Judge, Senior Division, Dhule. Said proceeding is fled by

respondent for getting probate in respect of will executed by Shivdas -

father of present petitioners. It appears that the applicants of probate

proceeding have filed affidavit as evidence of widow of Shivdas and she is

old lady. On the date when she was kept present for cross-examination,

the petitioner sought adjournment on that ground that they wanted to

change the advocate. In view of circumstance, the Trial Court rejected

the application on 21st April, 2016. The witness had expressed the

apprehension that she will be pressurised by present petitioners and she

may not be in position to give evidence on the next date. The Court held

that she is a material witness in the matter. After rejection of that

application, no cross order was made on the same day i.e. 21 st April,

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907_WP1046016.odt

2016. Application for setting aside the no cross order was filed. It

appears that the advocate was not changed but additional advocate was

appointed and submission was made. After considering this circumstance

and previous circumstances, the Trial Court has rejected the application at

Exhibit 60 also.

3. Submissions made show that according to the applicants from

probate proceeding, will is executed by Shivdas and their favour.

Gajanan - applicant of probate proceeding was given in adoption by

Shivdas. Present petitioners are the sons of Shivdas. In view of this

circumstance, this Court holds that opportunity needs to be given to the

present petitioner to contest the probate proceeding. It can be said that

both sides ought to have gone to the Civil Court as issue of probate would

not decide real dispute between them. In any case, in view of nature of

dispute and aforesaid circumstance, this Court holds that opportunity

needs to be given to the present petitioner to cross examine the said

witness who is their mother and get the decision on merits.

4. In view of circumstances mentioned by probate Court, this

Court holds that cost of Rs.10,000/- ( Rupees Ten Thousands Only )

needs to be imposed on the petitioner. In the result petition is allowed

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907_WP1046016.odt

subject to deposit of costs before 05 th December, 2016 in the Trial Court.

If the costs is not deposited, it is to be presumed that present proceeding

is dismissed. On 05th December, 2016, the witness will present in the

Probate Court and on the same day the petitioner need to cross examine

the witness. If petitioner does not cross examine the witness even after

depositing the costs amount, the Court will be at liberty to decide the

matter on the same day. If witness does not appear on that day then only

other order can be made.

( T.V. NALAWADE, J. )

SSD

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