Bombay High Court
Manda Mohan Bhowte And Another vs Antakala Mohan Bhowte on 6 October, 2021
Bench: Avinash G. Gharote
1 18 & 19.WP.1700 & 1732-2020 JUDGMENT.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
WRIT PETITION NO. 1700 OF 2020
1. Manda Mohan Bhowte
Aged about 48 years, Occ. Household
2. Mitali Mohan Bhowte
Aged about 23 years, Occ. Education,
Both R/o Tavepur, Po. Mohdula,
Tah. & Dist. Bhandara. PETITIONERS
...Versus...
Antakala Mohan Bhowte
Aged about 61 years, Occ. Service,
R/o Irrigation Colony, Mouda,
Tah. & Dist. Nagpur. RESPONDENT
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Shri R.A. Gupte, Advocate for the Petitioners.
Shri V.U. Waghmare, Advocate for the Respondent.
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WITH
WRIT PETITION NO. 1732 OF 2020
1. Manda Mohan Bhowte
Aged about 48 years, Occ. Household
2. Mitali Mohan Bhowte
Aged about 23 years, Occ. Education,
Both R/o Tavepur, Po. Mohdula,
Tah. & Dist. Bhandara. PETITIONERS
::: Uploaded on - 07/10/2021 ::: Downloaded on - 08/10/2021 03:32:36 :::
2 18 & 19.WP.1700 & 1732-2020 JUDGMENT.odt
...Versus...
1. Antakala Mohan Bhowte
Aged about 61 years, Occ. Service,
R/o Irrigation Colony, Mouda,
Tah. & Dist. Nagpur.
2. The Sub-Divisional Officer,
Pench Patbabdhar Vyavasthapan
Up-Vibhag, Bhandara,
Tah. & Dist. Bhandara. RESPONDENTS
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Shri R.A. Gupte, Advocate for the Petitioners.
Shri V.U. Waghmare, Advocate for the Respondent No.1.
Ms. Tajwar Khan, AGP for the Respondent No.2.
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CORAM : AVINASH G. GHAROTE, J.
DATED : 06th OCTOBER, 2021.
ORAL JUDGMENT :-
Heard.
2. Rule, Rule made returnable forthwith. Heard finally
with the consent of the learned counsel for the rival parties.
3. The relationship of late Mohan, with the petitioners
as well as the respondent/Antakala Bhowte is not disputed. It is
however submitted, that the respondent/Antakala Bhowte got
3 18 & 19.WP.1700 & 1732-2020 JUDGMENT.odt
divorced from late Mohan which is evinced by a document
dated 18.09.1992, which recorded that late Mohan and the
respondent/Antakala Bhowte were separated due to absence of
any issue. Mohan passed away on 23.5.2012, in view of which,
the respondent/Antakala Bhowte had filed an application for
grant of Succession Certificate under Section 372 of Indian
Succession Act, which came to be numbered as SCC
No. 27/2012. The Jt. Civil Judge Senior Division, Bhandara, by
the judgment dated 22.09.2017, relied upon the admission of
the respondent/Antakala Bhowte in her cross-examination, that
she was separated from deceased Mohan, in pursuance to the
document dated 18.09.1992, and rejected the application.
4. In the meantime, the petitioners had already
approached the Civil Court for grant of Succession Certificate in
their favour, which was registered as Succession Case No.
07/2013, in which, by judgment dated 28.02.2014, Succession
Certificate was granted in favour of the petitioners.
5. The respondent/Antakala Bhowte, challenged the
rejection of her claim for grant of Succession Certificate, by
4 18 & 19.WP.1700 & 1732-2020 JUDGMENT.odt
filing an appeal being RCA No. 121/2018 as well as the one in
favour of the petitioners by filing M.J.C. No. 35/14. M.J.C.
No. 35/14 came to be rejected by the Jt. Civil Judge Senior
Division, Bhandara, by judgment dated 22.09.2017, which in
turn came to be challenged in RCA No. 122/2018.
6. The learned Principal District Judge, Bhandara, by
his judgment dated 26.11.2019 in RCA No. 121/2018 allowed
the same granting Succession Certificate also in favour of the
respondent/Antakala Bhowte to the extent of 50%. By a
separate judgment dated 26.11.2019 in RCA 122/2018, the
Succession Certificate is granted in favour of the petitioners,
was set-aside, partly in respect of respondent No. 1 Manda,
therein. It is against both these judgments, that these two
petitions have been filed.
7. Mr. Gupte, learned counsel for the petitioners,
purely relies upon the admission of the respondent/Antakala
Bhowte, in her cross-examination to contend, that a divorce had
taken place between late Mohan and the respondent/Antakala
Bhowte, which according to him was evidenced by the
5 18 & 19.WP.1700 & 1732-2020 JUDGMENT.odt
document dated 18.09.1992, which was admitted by the
respondent/Antakala Bhowte.
8. It is however material to note, that there is no plea
raised, regarding a custom being prevalent in the community to
which the parties belong of a customary divorce being
permissible and no evidence whatsoever was led in this regard.
The plea regarding customary divorce, could only be accepted,
if a custom in that regard was pleaded and established. Since,
no such customs was pleaded or established, the grant for
Succession Certificate in favour of the petitioners, based upon
the so called admission of the respondent/Antakala Bhowte, has
rightly been rejected by the Court's below. In that view of the
matter, I do not find any merits in these petitions, and they are
therefore dismissed with no order as to costs.
9. Rule is discharged.
( AVINASH G. GHAROTE, J.)
S.D.Bhimte
