Bombay High Court
Gopal S/O Brijmohan Jhunjhunwala ... vs Official Liquidator, High Court, ... on 6 October, 2021
Bench: S. M. Modak
15 ca 2271.2018. 1/4
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CIVIL APPLICATION (CAO) NO. 2271/2018 IN CIVIL APPLICATION (L) NO. 20/2018
IN OFFICIAL LIQUIDATOR REPORT NO. 15/2016 IN COMPANY PETITION
NO. 05/2001
Gopal s/o Brijmohan Jhunjhunwala and others V/s The Official Liquidator.
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Office notes, Office Memoranda of
Coram, appearances, Court's orders Court's or Judge's Orders
or directions and Registrar's orders.
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Shri R.L. Khapre, Senior Advocate with Shri D.R. Khapre, Advocate for applicants.
Dr. Shri Anjan De, Advocate for Respondent (Official Liquidator)
CORAM : S.M. MODAK, J.
DATE : 06/10/2021.
1. Heard learned Senior Advocate Shri R.L. Khapre for
the applicants and learned Advocate Shri Anjan De for the
Official Liquidator.
2. The sale of Plot No. 144 situated at Taluka and
District Akola was conducted and one Smt Gomatibai Brijmohan
Jhunjunwala was the bidder. However, she expired on
03/06/2018. Copy of death certificate is filed on record. The sale
could not be confirmed in her favour.
3. These applicants have bidded for various properties
belonging to M/s Akola Oil Industries Limited in Liquidation. Due
to the non-deposit of the consideration, their bids could not be
confirmed and they were canceled. Even though now, the
applicant-Gopal Brijmohan Jhunjunwala and his son applicant
No.2-Suraj Gopal Jhunjunwala wants sale-deed to be executed in
[Civil Application No.481/2021] this Civil Application No.
2271/2018 was filed by them along with four others i.e.
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applicant Nos. 3 to 6 who were the bidders for different plots of
land. It was not finalized. They have been joined as they were
interested in adjusting for the earnest deposit made by them
while confirming the sale in respect of plot No. 144.
4. There is Civil Application No.20/2018 pending for
passing necessary orders, containing various reliefs. It also
includes adjustment of the additional consideration. Both of
them have submitted to decide the application for direction to
execute the sale-deed first and this application to be decided later
on.
5. In view of the filing of Civil Application No. 481/2021
by applicant No.1-Gopal Brijmohan Jhunjhunwala and applicant
No.2 Suraj Gopal Jhunjhunwala only, the present civil application
No. 2271/2018 is considered only for applicant No.1-Gopal
Brijmohan Jhunjhunwala and Applicant No.2-Suraj Gopal
Jhunjhunwala. In view of the above position, this application is
restricted only to applicant No.1 Gopal Brijmohan Jhunjhunwala
and Applicant No.2-Suraj Gopal Jhunjhunwala.
6. This Court on 07/12/2018 was pleased to grant time
to Official Liquidator to file reply. Copy of death certificate of
Gomatibai is filed on record. So also, a copy of the registered Will
dated 19/05/2018 and registered on 20/08/2018 is filed on
record. This belongs to the deceased Gomatibai. As per that Will,
she has bequeathed the right to purchase the land bearing Plot
No. 144 to applicant No.1- Gopal S/o Brijmohan Jhunjhunwala
and Applicant No.2-Suraj s/o Gopal Jhunjhunwala. It find place
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in para No.10 of the Will and on internal page No.5. She has
described this property at Property No.10 in the said Will.
7. In the reply filed by the Official Liquidator, there is an
opposition that the Will needs to be probated. The learned Senior
Advocate Shri R.L. Khapre relied upon the judgment in the case
the Hon'ble
Supreme Court has interpreted the provision of Section 213 and
Section 57 of the Indian Succession Act. It is true that an executor
and legatee can establish his right only when probate of the Will
is granted in his favour as per the provisions of Section 213 of the
Indian Succession Act. At the same time, it is true that as per the
provisions of Section 213 (2) of the said Act, the provisions are
not applicable when Wills are made outside the limits of the
ordinary original civil jurisdiction of this Court, of Calcutta High
Court and Madras High Court. Will in this case is registered with
Sub-Registrar, Akola. So it is outside the ordinary original
jurisdiction of this Court. In view of that, this Court presumes
that probate is not required. These observations are made only by
considering the controversy raised in this application.
8. In addition to the above documents, the applicant has
also relied upon heirship certificate granted by the 2nd Joint Civil
Judge, Junior Division, Akola in M.J.C. Case No. 50/2021. It is
submitted that this heirship certificate was obtained as there was
a demand made by the Official Liquidator as per the letter dated
17/12/2018 addressed to the applicant -Gopal Jhunjhunwala. It
is annexed to the reply filed in the present application. It is true
____________________
1. (2020) 14 SCC 102
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that in the said heirship certificate, there are seven applicants and
present applicant Gopal Jhunjhunwala is one of them. The name
of Suraj Jhunjhunwala does not find place there. It is submitted
that Suraj is the son of Gopal Jhunjhunwala and he cannot be the
heir of deceased Gomatibai when his father Gopal is alive. It is
submitted that in that heirship certificate, there is no reference of
the Will executed by deceased Gomatibai. According to the
applicants, this heirship certificate was obtained in order to assist
the Official Liquidator to understand who can be the probable
objectors to the Will executed by Gomatibai. This heirship
certificate is having that much relevance only.
9. As said above, deceased Gomatibai has bequeathed
the right to purchase plot No. 144 to present two applicants. In
view of that, Court find that the sale can be confirmed in the
names of two applicants.
10. In view of the above, the sale of plot No. 144 is
confirmed in favour of applicant No.1-Gopal Jhunjhunwala and
Applicant No.2-Suraj Gopal Jhunjhunwala.
11. Civil Application is disposed of.
JUDGE
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