Popat Janardhan Kulkarni vs Ajinath Shashikant Kulkarni Minor ...
2024 Latest Caselaw 14281 Bom

Bombay High Court

Popat Janardhan Kulkarni vs Ajinath Shashikant Kulkarni Minor ... on 6 May, 2024

2024:BHC-AUG:9659


                                                                           8-SA-489-2019.odt




                           IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                                      BENCH AT AURANGABAD

                                   SECOND APPEAL NO. 489 OF 2019
                                                  WITH
                                   CIVIL APPLICATION NO. 4443 OF 2024

                                      POPAT JANARDHAN KULKARNI
                                                  VERSUS
                             AJINATH SHASHIKANT KULKARNI AND OTHERS
                                                     ....
                    Mr. S. S. Kulkarni, Advocate for appellant
                    Mr. A. B. Kadethankar, Advocate for respondent Nos. 2-a to 2-e
                    Mr. V. S. Badakh, Advocate for respondent Nos. 4 to 7
                                                     ....

                                       CORAM : Y. G. KHOBRAGADE, J.

DATE : 06 MAY 2024 PER COURT :-

1. After advancing the argument for quite some time, the

learned Counsel for the appellant/original plaintiff seeks leave to

withdraw the present appeal with liberty to file application under

Section 263 of the Indian Succession Act., before the same Court

which has granted probate certificate.

2. Needless to say that the appellant/plaintiff filed R.C.S.

No.202 of 2003 and prayed for decree of declaration that the will

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deed dated 01.07.1995 allegedly executed by deceased Janardhan

Kulkarni, the father of the appellant/plaintiff in favour of his nephew

defendant No.1 Ajinath Shashikant Kulkarni as well as order dated

16.10.1997 passed by the learned Civil Judge Senior Division,

Ahmednagar in Probate Application No. 10 of 1997 in favour of

defendant No.1 is null and void.

3. It is submitted that, since the Civil Judge Senior Division,

Ahmednagar passed an order in probate proceeding and granted

probate in favour of the defendant, therefore, only remedy is

available to the plaintiff under Chapter 3 of the Indian Succession

Act. However, the plaintiff filed separate suit seeking declaration that

the order passed in probate proceeding is null and void. On

16.10.1997, the learned Civil Judge Senior Division, Ahmednagar

passed the judgment and dismissed the suit of the plaintiff. Further,

the first appellate Court upheld the judgment and order of the trial

Court vide it's judgment and order dated 19.12.2017 passed in R.C.A.

No.362 of 2011.

4. Section 299 provides appeal from order of District Judge.

Since under Section 263 of Indian Succession Act, the appellant

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having remedy for seeking revocation of succession certificate,

therefore, I do not find that both the Courts have committed any

illegalities.

5. Since the plaintiff sought withdrawal of the appeal with

permission to file application under Section 263, therefore, leave

granted as prayed for. However, the point of limitation is kept open

and it can be decided on its own merit.

6. Accordingly, Second Appeal is dismissed as withdrawn

with liberty as prayed for.

7. Pending civil application is disposed of.

[ Y. G. KHOBRAGADE, J. ]

SMS

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