First Appeal No. 1118 of 2015. Case: Nitesh Shashikant Khobragade Vs Anil Marotrao Khobragade and Ors.. High Court of Bombay (India)
| Case Number | First Appeal No. 1118 of 2015 |
| Counsel | For Appellant: C.R. Bhagwani, Advocate and For Respondents: M.R. Joharapurkar, Advocate |
| Judges | A. S. Chandurkar, J. |
| Issue | Bombay Civil Courts Act, 1869 - Section 28A(1); Indian Succession Act, 1925 - Sections 213, 264(2), 276, 295, 299, 57, 57(b), 57(c) |
| Judgement Date | April 07, 2016 |
| Court | High Court of Bombay (India) |
Judgment:
A. S. Chandurkar, J.
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In view of notice for final disposal issued on 04.01.2016 the learned counsel for the parties have been heard at length.
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Admit. Taken up for final disposal with consent of parties.
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This appeal has been filed under Section 299 of the Indian Succession Act, 1925 (for short, the said Act) challenging the order dated 27.07.2015 passed by the learned Joint Civil Judge, Senior Division, Nagpur in Probate Petition No. 6 of 2012 thereby dismissing the proceedings for issuance of probate and granting liberty to the appellant to have the claim adjudicated before the competent Civil Court.
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Facts in brief are that the appellant claims entitlement to a plot of land alongwith property constructed thereon on the basis of will executed by Smt. Manoramabai Khobragade and Shri Marotrao Khobragade on 24.09.2003. According to the appellant he had been named as executor in the said will. The appellant therefore filed a petition under Section 276 of the said Act for grant of probate.
The respondents herein were duly served. They filed their reply to the aforesaid proceedings. The respondent no. 1 pleaded that the appellant had no right whatsoever under the said will and thus disputed his entitlement. The respondent no. 2 however also claimed entitlement on the basis of will dated 24.09.2003.
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The appellant thereafter led his evidence in the probate proceedings. On 08.10.2013 as the respondent no. 1 and his counsel were absent the right to cross-examine the appellant was forfeited. Thereafter on 18.09.2014 the respondent no. 1 and his counsel was absent and hence the side of the respondent no. 1 was closed. On 15.11.2014 the respondent no. 1 filed an application below Ex. 66 for permission to lead evidence. He also filed an application below Ex. 67 in which a prayer for dismissal of the proceedings was made. In the said application it was stated that in view of the provisions of Section 213 of the said Act, the proceedings itself were not competent and that the requirements of Section 57 of the said Act were not satisfied. It was then stated that as the proceedings were being contested, the same ought to have been converted into a suit.
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The aforesaid application was opposed by the appellant by filing reply at Ex. 69. Reference was made to the provisions of Section 28-A(1) of the Bombay Civil Courts Act, 1869 with regard to the manner in which contentious proceedings were required to be decided. It was also stated that the appellant had examined himself and one...
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