Bombay High Court
Sonali W/O Trushant Walde vs Babita Wd/O Girish Badole on 16 October, 2025
1610WP262-25.odt 1 Judgment
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO. 262 OF 2025
Sonali Trushant Walde, aged about 32 years,
Occu: Household, R/o B-905, Samrat Gokul Dham,
Hirawadi, Nashik-422003. PETITIONER
VERSUS
Babita Girish Badole, aged about 28 years,
Occu: Household, R/o Delanwadi Ward, Bramhapuri,
Tahsil Bramhapuri, District Chandrapur. RESPONDENT
______________________________________________________________
Shri R.S. Kalangiwale, Counsel for the petitioner.
Shri A.A. Dhawas, Counsel for the respondent.
--------------------------------------------------------------------------------------------------
CORAM : PRAFULLA S. KHUBALKAR, J.
DATE ON WHICH THE ARGUMENTS WERE HEARD : AUGUST 20, 2025
DATE ON WHICH THE JUDGMENT IS PRONOUNCED: OCTOBER 16, 2025
JUDGMENT
RULE. Rule made returnable forthwith. Heard finally by consent
of the learned counsels for parties.
2. This writ petition under Article 227 of the Constitution of India
deals with challenge to the order dated 20.12.2024 passed by the trial
Court, rejecting the petitioner's application under Order I Rule 10 of Code
of Civil Procedure, 1908 (for short, 'the Code').
3. The factual set up, in which the instant controversy arose, is
succinctly put below :-
(i) The petitioner is real sister of deceased Girish Badole and daughter
of Vijay and Kunda Badole. The respondent is wife of deceased Girish.
(ii) The dispute in between the sister and wife of deceased Girish arose
in the background of a devastating car accident which took place on
16.04.2023. In the said car accident, the mother, brother and sister of the
petitioner died on 16.04.2023 itself, whereas the father of the petitioner
died on 22.04.2023.
1610WP262-25.odt 2 Judgment
(iii) Deceased Girish was having a life insurance policy bearing number
990660510, from Life Insurance Corporation of India, in which mother of
the petitioner was a nominee.
(iv) After death of Girish, his wife, i.e. respondent herein filed an
application under section 372 of Indian Succession Act, 1925 before the
Court of Civil Judge (Senior Division) Chandrapur, which is registered as
M.J.C. No. 369 of 2023 for grant of succession certificate, wherein she
claimed for the amount under the said policy. In this application, the
respondent added herself as applicant and nobody was arrayed as non-
applicant/respondent.
(v) During pendency of the said succession proceedings, the petitioner
herein filed an application at Exhibit 16 under Order I Rule 10 of the Code
claiming that she is entitled to be joined as necessary party. By this
application, the petitioner claimed that after the death of deceased Girish,
his mother being his Class 1 Legal heir acquired right and share in all the
properties of deceased Girish and after her death, all her legal heirs,
including the petitioner acquired right and share in the movable and
immovable properties of deceased Girish through the share of his nominee
i.e. his mother deceased Kunda.
(vi) The applicant in the succession proceedings i.e. the respondent
herein filed reply to the intervention application and categorically denied
any kind of right of the intervener. As regards the claim of the intervener
of having a right in the property of deceased Girish, it was stated that the
petitioner not being Class 1 heir of deceased Girish, was not entitled to
assert any right and as such, had no locus to file the application, much less
to be a necessary party.
1610WP262-25.odt 3 Judgment
(vii) The trial Court passed order dated 20.12.2024 below Exhibit 16
and the application filed by the petitioner-Intervenor came to be rejected.
(viii) Assailing this order, the petitioner has filed the instant petition
invoking supervisory jurisdiction of this Court under Article 227 of the
Constitution of India.
4. Shri R.S. Kalangiwale, learned counsel for the petitioner strenuously
argued that the impugned order is patently illegal and unsustainable in
law. He submitted that the petitioner being daughter of deceased Kunda
had got a right in the property of deceased Girish to the extent of share of
late Kunda in view of Section 10 of the Hindu Succession Act, 1956 (for
short, 'the Act of 1956'). By inviting attention to Sections 8, 10 and 15 of
the Act of 1956, learned counsel for petitioner submitted that the petitioner
had got a right in the share of her deceased mother and she cannot be
deprived of the right which accrued to her by operation of law. He
therefore submitted that the petitioner being a necessary party to the
succession proceedings, the trial Court has utterly failed to consider the
purport of the provisions of Sections 8, 10 and 15 of the Act of 1956 and
the impugned order is grossly unsustainable.
5. Per contra, Shri A.A. Dhawas, learned counsel for the respondent
vehemently opposed the petition. He submitted that the petitioner is not
at all a necessary party to the succession proceedings. He submitted that
the petitioner's brother deceased Girish and mother deceased Kunda had
expired in the same accident and there is no question of accrual of any
right in favour of the petitioner. By inviting attention to the documents of
the final report and the First Information Report of the said accident, he
attempted to submit that the mother of the petitioner had died before the
brother. He submitted that considering the time and sequence of death of
1610WP262-25.odt 4 Judgment
the mother and brother of the petitioner, the petitioner cannot claim any
right since her mother had predeceased her brother. He, therefore,
submitted that since mother Kunda had predeceased her brother Girish,
the petitioner is not entitled to claim any right in her share. He invited my
attention to the provisions of Section 21 of the Act of 1956 which deals
with presumption in cases of simultaneous deaths. He, therefore,
submitted that there is no conclusive material about petitioner's right to
claim share in the property of her mother. As such, he submitted that the
petitioner is not a necessary party in the succession proceedings.
6. Rival contentions now fall for my consideration.
7. It is crucial to note that the controversy involved in the instant
petition is with respect to entitlement of the petitioner to participate in the
succession proceedings initiated by the respondent, i.e. wife of deceased
Girish. The petitioner has claimed herself to be a necessary party to the
succession proceedings based on a right in her favour to the extent of
share of her mother. None of the parties had laid any evidence with
respect to the fact as to who had predeceased the other, i.e. mother or son
and, therefore, the said controversy is not yet adjudicated. Thus the
primary issue which falls for my consideration is whether the petitioner
need to be allowed to participate in the succession proceedings on the
basis of a possible right claimed by her in the property of the deceased to
the extent of her mother's share.
8. Undisputedly, the petitioner is not a Class I heir of deceased Girish,
who has died intestate. As regards the right claimed by the petitioner in
the property of deceased to the extent of share of her mother, the
provisions of the Act of 1956 needs to be given due consideration. The
1610WP262-25.odt 5 Judgment
provision with respect to general rules of succession in the case of a male
is provided in Section 8 of the Act of 1956 which is reproduced below:-
"8. General rules of succession in the case of males.- The
property of a male Hindu dying intestate shall devolve according
to the provisions of this Chapter:-
(a) firstly, upon the heirs, being the relatives specified in class I of
the Schedule;
(b) secondly, if there is no heir of class I, then upon the heirs,
being the relatives specified in class II of the Schedule;
(c) thirdly, if there is no heir of any of the two classes, then upon
the agnates of the deceased; and
(d) lastly, if there is no agnate, then upon the cognates of the
deceased."
9. The provision with respect to the distribution of property amongst
hairs in Class 1 of the schedule is contained in Section 10 of the Act of
1956, which is reproduced below:-
"10. Distribution of property among heirs in class I of the
Schedule.- The property of an intestate shall be divided among
the heirs in class I of the Schedule in accordance with the
following rules:--
Rule 1.- The intestate's widow, or if there are more widows than
one, all the widows together, shall take one share.
Rule 2.- The surviving sons and daughters and the mother of the
intestate shall each take one share.
Rule 3.- The heirs in the branch of each pre-deceased son or each
pre-deceased daughter of the intestate shall take between them
one share.
Rule 4.- The distribution of the share referred to in rule 3:--
(i) among the heirs in the branch of the pre-deceased son shall
be so made that his widow (or widow together) and the surviving
sons and daughters get equal portions; and the branch of his pre-
deceased sons gets the same portion;
(ii) among the heirs in the branch of the pre-deceased daughter
shall be so made that the surviving sons and daughters get equal
portions."
1610WP262-25.odt 6 Judgment
Apart from these two provisions, another relevant provision which needs
to be given due consideration is with respect to the general rules of
succession in the case of female Hindus, which is provided in section 15 of
the Act of 1956, which is reproduced below:-
"15. General rules of succession in the case of female Hindus.-
(1) The property of a female Hindu dying intestate shall devolve
according to the rules set out in section 16,-
(a) firstly, upon the sons and daughters (including the children of
any pre-deceased son or daughter) and the husband;
(b) secondly, upon the heirs of the husband;
(c) thirdly, upon the mother and father;
(d) fourthly, upon the heirs of the father; and
(e) lastly, upon the heirs of the mother.
(2) Notwithstanding anything contained in sub-section (1),-
(a) any property inherited by a female Hindu from her father or
mother shall devolve, in the absence of any son or daughter of the
deceased (including the children of any pre-deceased son or
daughter), not upon the other heirs referred to in sub-section (1) in
the order specified therein, but upon the heirs of the father; and
(b) any property inherited by a female Hindu from her husband or
from her father-in-law shall devolve, in the absence of any son or
daughter of the deceased (including the children of any pre-
deceased son or daughter) not upon the other heirs referred to in
sub-section (1) in the order specified therein, but upon the heirs
of the husband."
10. Thus, while considering Section 8 of the Act of 1956, it is clear that
the property of a male Hindu dying intestate shall devolve firstly upon the
heir as specified in Class I of the Schedule. After considering the Schedule
to the Act of 1956 and considering the fact that deceased Girish had died
intestate, mother of the petitioner, viz. Kunda is a Class 1 heir along with
the respondent who is wife of deceased Girish. Further, in view of
Section 10 of the Act of 1956, the remaining sons, daughters and mother
of the intestate shall take one share and therefore the mother of
1610WP262-25.odt 7 Judgment
petitioner i.e. deceased Kunda became entitled to the property of her son
Girish. The contention of the petitioner in this regard is that Girish, the
brother of petitioner has predeceased her mother, and therefore, after his
death the succession opened and as such all the Class 1 legal heirs
including his mother acquired right in the property of deceased Girish.
After giving thoughtful consideration to the provisions of Section 8 and 10
of the Act of 1956 with respect to facts of the instant case and on
consideration of Section 15 of the Act of 1956, it becomes clear that
prima-facie the petitioner can raise a claim that she had got right in the
property of her mother who also died intestate, which will be tested
during adjudication.
11. As such, in view of the above provisions of the Act of 1956, it prima
facie appears that the petitioner is entitled to raise a claim and assert a
right in the property of deceased Girish at least to the extent of share of
her mother deceased Kunda.
It is also crucial to note that there is no evidence as on today about
the time and sequence of death of the brother and mother of the
petitioner. Therefore, learned counsel for respondent has invited my
attention to Section 21 of the Act of 1956, which contains a provision with
respect to presumption in cases of simultaneous deaths. For further
consideration of the contentions in this regard, the provision of Section 21
of the Act of 1956 is reproduced below:-
"21. Presumption in cases of simultaneous deaths.- Where two
persons have died in circumstances rendering it uncertain whether
either of them, and if so which, survived the other, then, for all
purposes, affecting succession to property, it shall be presumed,
until the contrary is proved, that the younger survived the elder."
1610WP262-25.odt 8 Judgment
A perusal of this provision clearly shows that in case two persons have
died in circumstances rendering it uncertain whether either of them,
and if so which, survived the other, then, for all purposes, affecting
succession to property, it shall be presumed, until the contrary is proved
that the younger survived the elder. In view of this presumption, learned
counsel for respondent submitted that in view of documents on record, it
appears that the mother of the petitioner had predeceased her brother,
and therefore, the petitioner cannot claim any right in the property of the
brother, even to the extent of share of her mother.
12. Even while considering this argument, it has to be noted that the
presumption as provided under Section 21 of the Act of 1956 is not a
conclusive presumption and it is qualified by the words until the contrary
is proved. As such, until the evidence is laid to establish the time and
sequence of death of deceased Girish and Kunda, nothing can be
concluded as to who has predeceased whom. Thus, at this stage, in
absence of any evidence to conclusively establish that petitioners mother
had expired before her brother, the petitioner cannot be deprived of her
right to assert a claim over the property of her deceased brother to the
extent of share of her mother. It is pertinent to note that the petitioner
has contended in her application that her brother had expired while on
way to the hospital and mother had expired in the Government Hospital
premises. As such, the petitioner has come up with a case that her brother
has predeceased her mother. Despite repetition, it is mentioned here that
no evidence is yet laid to conclusively prove the sequence of death of
1610WP262-25.odt 9 Judgment
those persons. In view of the above factual and legal aspects, I am of the
firm view that the petitioner has been able to establish a prima facie right
to participate in the succession proceedings.
13. While considering the contentions of the petitioner to intervene in
the succession proceedings, the position of law with respect to provisions
of Order I Rule 10 of the Code needs to be considered. As regards the
position of law, it is fruitful to refer to the authoritative pronouncement of
the Hon'ble Supreme Court in Kasturi Versus Iyyamperumal & Others
[(2005) 6 SCC 733], on which the counsel for petitioner has heavily
relied. While dealing with the provisions of Order I Rule 10(2) of the
Code, the Supreme Court observed that the test to determine as to who is a
necessary party is that there must be a right to some relief against such
party in respect of controversies involved in the proceedings; or no
effective decree can be passed in the absence of such party. By inviting
attention to paragraph 13 of this judgment learned counsel for the
petitioner submitted that the petitioner is a necessary party to the
succession proceedings and her right to participate in such proceedings
cannot be taken away. Said paragraph 13 is reproduced below:-
"13. From the aforesaid discussion, it is pellucid that necessary
parties are those persons in whose absence no decree can be
passed by the court or that there must be a right to some relief
against some party in respect of the controversy involved in the
proceedings and proper parties are those whose presence before
the court would be necessary in order to enable the court
effectually and completely to adjudicate upon and settle all the
questions involved in the suit although no relief in the suit was
claimed against such person."
1610WP262-25.odt 10 Judgment
14. Further, as regards the issue as to whether the petitioner can be
allowed to intervene in the proceedings with respect to claim for insurance
policy, counsel for petitioner has relied upon the judgment in Jilubhai
Nanbhai Khachar & Others Versus State of Gujarat & Another [1995
Supp (1) SCC 596] and submitted that the amount of life insurance policy
is also a property in which the petitioner is entitled to stake her right. It
must however be observed that as regards the right of petitioner to the
property of her deceased brother, the entitlement to the amount of life
insurance policy, will have to be adjudicated by considering provisions of
Section 39 of the Insurance Act, 1938 and the position of law laid down in
this regard. In the facts of this case, in view of semblance of right, shown
by the petitioner, at this stage, she cannot be deprived from participating
in the succession proceedings.
15. On careful consideration of the contentions advanced by the
counsel for the respective parties, there is no manner of doubt that the
petitioner cannot be deprived of her right to participate in the succession
proceedings. Another issue, as to whether the petitioner would have a
share in the property of diseased Girish, either to the extent of share of
her mother or otherwise, would finally become clear after the adjudication
of the controversy. At this stage, looking into the case for the purpose of
entertaining application under Order I Rule 10 of the Code, I am of the
firm opinion that the petitioner's application ought to have been allowed
by the trial Court. While passing the impugned order, trial Court has only
observed that the petitioner, not being a Class I heir of deceased Girish,
1610WP262-25.odt 11 Judgment
cannot have any share in the property of the deceased. However, the
impugned order is passed by completely ignoring the purport of the
provisions of Sections 8, 10 and 15 of the Act of 1956. As such, the
impugned order is apparently unsustainable and deserves to be quashed
and set aside.
16. In view of the abovementioned factual and legal aspects, the instant
writ petition succeeds. The impugned order dated 20.12.2024 is quashed
and set aside. The application filed by the petitioner under Order I Rule
10 of Code of Civil Procedure at Exhibit 16 in M.J.C. No.369 of 2023 is
allowed. Rule is made absolute in above terms. No costs.
(PRAFULLA S. KHUBALKAR, J.)
APTE
Signed by: Apte
Designation: PS To Honourable Judge
Date: 18/10/2025 15:12:06
