Bombay High Court
Shri Vijaykumar S/O Bhaiyyalal ... vs Shri Champalal S/O ... on 18 April, 2022
Bench: Manish Pitale
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
WRIT PETITION NO. 2241 OF 2017
Vijaykumar s/o Bhaiyyalal Parate and anr.
Vs.
Champalal s/o Bansilal Parate and Ors.
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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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Mr. P.V. Vaidya, Advocate for petitioners.
Mr. A.M. Quazi, Advocate for respondent Nos.1(A to C), 4 to
Mr. Anand Joshi, Advocate for respondent Nos.18 to 20.
CORAM : MANISH PITALE J.
DATE : 18.04.2022.
By this writ petition, the petitioner has
challenged order dated 17.03.2017, passed by the
Court of 8th Joint Civil Judge Senior Division, Nagpur,
whereby certain applications filed on behalf of the
petitioners stood disposed of.
2. It is the contention of the petitioners that
the Court below committed a grave error in passing
the impugned order and rejecting prayer made on
their behalf, calling for the record of Civil Suit
No.404/1997, as also original Will dated 13.03.1990,
which was subject matter of the said suit. It was
further contended that according to the petitioners,
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the aforesaid Will Deed is a crucial document
required to be proved in the proceedings pending
before the Court below in order to determine as to
whether the preliminary decree of partition passed by
the Competent Court needs to be modified.
3. Attention of this Court was invited to
points that were framed in the application filed for
modification of the preliminary decree. By
emphasizing on one of the points framed by the
Court below, it was submitted that the application
filed by the petitioners, inter alia, for production of
the original Will and for proving the same, ought to
have been granted by the Court below.
4. A perusal of the impugned order shows
that the said application stood rejected for the reason
that according to the Court below, the record of the
aforesaid Civil Suit bearing No.404/1997 was not
required to be called. It was further observed that
the question regarding the Will was being raised after
a period of about thirteen years and more importantly
the proceedings in the aforesaid suit pertained to
validity of the very same Will Deed and that
therefore, there was no propriety on the part of the
petitioners to call for the original Will Deed and for
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seeking an opportunity to examine witnesses to prove
the said Will Deed .
5. Mr. Vaidya, learned counsel appearing for
the petitioners informed this Court that subsequent to
the passing of the impugned order, it was an admitted
position that the aforesaid Civil Suit No.404/1997
was dismissed and the aforesaid Will Deed was held
to be valid. It was also an admitted position that an
appeal against the said judgment and decree is
pending before the concerned appellate Court. But, it
was submitted that despite the aforesaid subsequent
event, the petitioners were entitled to examine
witnesses to prove the said Will and even if the
prayer for calling for the record of Civil Suit
No.404/1997 had become irrelevant, it was necessary
for the petitioners to be permitted to examine
witnesses to prove the validity of the said Will.
6. On the other hand, Mr. Quazi, learned
counsel appearing for the contesting respondents,
submitted that the subsequent event ought to be
taken into consideration by this Court. It is further
submitted that another Civil Suit was filed by the
contesting respondents challenging the validity of the
very same Will Deed. It was then submitted that the
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question regarding validity of the Will could not be
raised and/or examined in the proceedings pending
before the Court below, for the reason that the
preliminary decree could not be modified as sought
by the petitioners.
7. It is further submitted that due to such
tactics adopted by the petitioners, although shares of
the respective four branches of the family had been
determined many years ago, even till date actual
execution of the decree and finalization of decree
proceedings could not be accomplished. It was
submitted that even if the points framed by the Court
below were to be taken into consideration, the
question regarding validity of the Will could certainly
not be the subject matter before the Court below.
8. This Court has perused the impugned
order. It is found that the prayer for calling the record
of Civil Suit No.404/1997, was correctly rejected by
the Court below. In fact, to be fair to the petitioners,
in view of the subsequent developments, the prayer
for calling for the aforesaid record was not seriously
pressed before this Court.
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9. Nonetheless, it was argued vehemently on
behalf of the petitioners that in view of the points
framed by the Court below in the context of the
application seeking modification of the preliminary
decree, opportunity ought to be granted to the
petitioners to prove the Will Deed in question. It was
submitted that the observations made by the Court
below in the impugned order that the petitioners
cannot be allowed to prove the said Will Deed by
examining witnesses, is wholly unsustainable and
therefore, the impugned order deserves to be
interfered with.
10. It is an admitted position that as on
today Civil Suit No.404/1997 has been decided and it
has been held in the said proceedings that the Will
Deed in question is valid. There is no dispute about
the fact that an appeal against the said judgment and
decree has been preferred and the same is pending. It
is also brought to the notice of this Court that the
contesting respondents had also filed another Civil
Suit challenging the validity of the very same Will
Deed. In these circumstances, although it cannot be
disputed that the proceeding concerning final decree
proceeding or even modification of the preliminary
decree have remained pending for a long period of
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time, but the reason for the same is the multifarious
proceedings initiated by the parties in the context of
the preliminary decree of partition passed years ago.
11. In view of the aforesaid Will Deed, being
put to test in the aforesaid Civil Suit bearing
No.404/1997 and a view already taken by the
competent Court, this Court does not find any reason
to interfere with the impugned order. This Court is of
the opinion that the insistence of the petitioners on
proving the validity of the Will before the Court
below would amount to replication of the very
exercise undertaken before the Competent Civil Court
where the Will has been already held to be valid.
Notwithstanding that an appeal against the judgment
and decree holding the validity of the Will is pending,
the findings rendered in the judgment and decree
upholding the validity of the Will can be taken into
consideration by the Court below. No case is made
out by the petitioner for replicating the very same
exercise regarding proving the aforesaid Will in the
context of points framed by the Court below.
12. In view of the said subsequent event, this
Court is not inclined to interfere with the impugned
order. At the same time the parties would be at liberty
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to place the judgment and decree disposing of Civil
Suit No.404/1997, before the Court below and to
raise submissions on the basis of the said judgment
and decree, in the context of the points already
framed by the Court below in M.J.C. No.350/2014.
13. With these observations, the writ petition
stands disposed of.
JUDGE
Prity
