Bombay High Court
Bhaskar Murgyappa Kaulapure ... vs Ashok Alias Virupaksha Murgyappa ... on 18 April, 2023
Bench: Madhav J. Jamdar
2023:BHC-AS:11820
7. IA 30485.22 in SA 748.2004.doc
Dusane
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
INTERIM APPLICATION NO.30485 OF 2022
IN
SECOND APPEAL NO.748 OF 2004
Bhaskar Murgyappa Kaulapure ...Applicants
(since deceased) thru LRs
Smt. Kamal Bhaskar Kaulapure
(since deceased) thru' her LRs.
Dilip Nandkumar Bhinge & Anr.
V/s.
Ashok Alias Virupaksha Murgyappa ...Respondents
& Ors.
Mr. Sanjay Thokade for Original Appellants in
Appeal.
Mr. Ajay RajeNimbalkar i/by S.S. Patwardhan for
Respondent No. 1 in Appeal.
Mr. Ketan Joshi for Original Respondent No.2 in
Appeal.
Mr. Akshay Kulkarni i/by A.M. Kulkarni for proposed
Respondent Nos. 4 to 7.
CORAM: MADHAV J. JAMDAR, J.
DATE: 18th APRIL 2023
P.C.:
1. This Interim Application is taken out by the Applicants i.e.
Dilip Nandkumar Bhinge and Shivshankar Ganpatrao Mahajan for
bringing them on record as legal representatives of sole
7. IA 30485.22 in SA 748.2004.doc
Appellant, deceased- Smt. Kamal Bhaskar Kaulapure. The said
Smt. Kamal Kaulapure passed away on 23 rd July 2022 and the
present Interim Application is taken out on 27 th September 2022
i.e. within time.
2. It is the claim of the Applicants that deceased Appellant
i.e. Smt. Kamal Bhaskar Kaulapure has executed registered Will
dated 30th November 2004 by which the properties which are
subject matter of the present proceedings are bequeathed in
favour of the Applicants. The Applicants are the sons of sister of
the deceased- sole Appellant.
3. Respondent No.2 has filed Affidavit-in-reply dated 25th
February 2023. In the said Affidavit-in-reply, various contentions
are raised including that the probate is not granted of the Will on
the basis of which, the Applicants are claiming right, title and
interest. However, perusal of the Will shows that the properties
which are the subject matter of the Will are at Miraj and the Will
was also executed at Miraj. Therefore, as per Section 213 read
with Section 57 of the Indian Succession Act, 1925, the probate
is not required for the Wills, which have been executed outside
Mumbai and which are not concerning the immovable property
within the territories of Mumbai.
4. Mr. Thokade, learned Counsel appearing for the
Applicants has relied on judgment of the Supreme Court in
7. IA 30485.22 in SA 748.2004.doc
the matter of Kanta Yadav V. Om Prakash Yadav And
Others1 wherein also the above legal position is clarified.
Therefore, there is no substance in the contention of
Respondent No.2 that as the probate is not obtained, the Will
cannot be acted upon. Therefore, the Interim Application
No.30485 of 2022 is allowed in terms of prayer clause (b).
5. Amendment be carried out within 14 days from today.
6. Mr. Ketan Joshi, learned Counsel appearing for
Respondent No.2 has raised some other contentions. It is
clarified that said contentions can be raised at the time of
hearing of the Second Appeal.
7. Interim Application is disposed of in above terms with no
order as to costs.
(MADHAV J. JAMDAR, J.)
1 (2020) 14 Supreme Court Cases 102
