Bombay High Court
Prashant Bhagwandas Bajoriya vs Smt. Bharti Bharat Bajoriya And ... on 19 December, 2016
Bench: S.B. Shukre
AO107.14.odt 1/4
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR.
APPEAL AGAINST ORDER NO.107 OF 2014
APPELLANT: Prashant Bhagwandas Bajoriya, Aged
about 39 years, Occu: Business, R/o
In front of Collector Office, Civil
Lines, Yavatmal.
-VERSUS-
RESPONDENTS: 1. Smt. Bharti Bharat Bajoriya, aged
about 37 years, Occupation: Business,
2. Chetan Bharat Bajoriya, aged about
13 years, Occu: Education through
ig natural guardian respondent No.1
Smt. Bharti Bharat Bajoriya,
Both Respondent No.1 and 2 R/o
Bajoriya, aged about 63 years,
Occupation: Household, R/o In front
of Collector Office, Civil Lines,
Yavatmal.
3. Smt. Sushilabai Bhagwandas
Bajoriya, aged about 63 years,
occupation; household,R/o In front of
Collector Office, Civil Lines, Yavatmal
Deleted. 4. Rita Ashok Vaid.
Deleted. 5. Sau. Mina Jitendra Khetan.
Shri M. G. Bhangde, Senior Advocate for the appellant.
Shri S. C. Bhalerao, Advocate for respondent nos.1 and 2.
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CORAM: S. B. SHUKRE, J.
DATED: 19
th DECEMBER, 2016.
ORAL JUDGMENT :
1 Rule made returnable forthwith and heard by consent
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of the parties.
2. The respondent no.3 being a formal party, notice to
her is dispensed with.
3. This appeal involves basic issue of jurisdiction of the
testamentary Court to pass the impugned order dated 16-8-2014.
4. While recalling the order passed by this court, this
court in its order dated 29-11-2016 considered the ratio of the case
of Ramchandra Hande Vs. Vitthalrao Hande reported in 2011 (4)
Mh.L.J. 50 and found that it was not considered by this Court
while delivering the judgment on 14-8-2015. The ratio of
Ramchandra Hande is that testamentary Court in proceedings for
probate is only concerned with the question as to whether will of
the deceased is genuine and that it has been made voluntarily or
not and in such proceedings, the testamentary Court cannot go
into the right, title etc. to the property. The issue relating to right,
title etc. to the property is alien to such proceedings. This would
mean that the testamentary Court would have no jurisdiction to
consider grant of injunction against the parties restraining them
from creating any third party rights in the subject property as grant
of injunction would require considering the issue relating to the
rights of the parties to the property and their title to it and so on
and so forth. The impugned order, if one examines it carefully,
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would be found to be clearly hit by this embargo of Ramchandra
Hande.
5. The learned Counsel for the respondent nos.1 & 2 has
submitted that the impugned order has been passed under Section
151 of the Code of Civil Procedure and, therefore, it is not
amenable to an appeal as provided under Section 43 Rule 1 (r) of
the Code. The learned Senior Counsel for the appellant has
pointed out from the operative part of the impugned order that the
order cannot be considered to be the one as passed only by
invoking the Court's inherent power under Section 151 of the Code
and that it is also an order which draws upon the provisions of
Order XXXIX Rule 1 (a) of the Code.
6. The operative portion of the impugned order, as
rightly submitted by the learned Senior Counsel for the appellant,
unmistakably hinges upon the provisions of Order XXXIX Rule1 of
the Code, though it has been expressed to be passed under
Section 151 of the Code, and so would have to be read as the one
passed under Order XXXIX Rule 1 of the Code. It is, therefore,
amenable to the appeal jurisdiction under Order 43 Rule 1 (r) of
the Code.
7. The learned Counsel for the respondent nos.1 & 2 has
also submitted that the appeal in this case would go before the
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District Judge because the valuation of the subject matter of the
proceedings is less than Rs. 1,00,00,000/-. The argument deserves
its outright rejection and is rejected. The reason being that the
impugned order has been passed in exercise of the powers of
District Judge delegated to Civil Judge, Senior Division, and
therefore, the question of valuation of the subject matter of the
proceedings would not arise. The appeal will have to be filed
before the High Court.
ig In the result, the appeal deserves to be allowed.
9. The impugned order is hereby quashed and set aside.
No order as to costs.
10. At this stage, learned Counsel for the respondent nos.1
and 2 prays for stay of the impugned order for four weeks to
enable the respondent nos.1 and 2 to file a civil suit and obtain
interim protection. The prayer is strongly opposed by the learned
Senior Counsel for the appellant.
11. The prayer cannot be granted as the impugned order
has been held to be without jurisdiction and so it is rejected.
JUDGE
//MULEY//
