Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 Ord. in NM no. 569 of 2020 Suit no. 7330 of 2001
MHCC010014972020
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
ORDER IN NOTICE OF MOTION NO. 569 OF 2020
CNR NO.MHCC010014972020
IN
SUIT NO.7330 OF 2001
(High Court Suit No. 2176 of 2001)
Arun Nanalal Kothari ...Applicant/ Defenedant no.1
Vs
Mrs. Sudha Kishore Kothari & Ors. ...Nonapplicant/ Plaintiffs
CORAM : HIS HONOUR JUDGE
SHRI VIRENDRA D. KEDAR
(COURT ROOM NO. 01)
DATE : 30th DAY OF JULY, 2022
: Appearances:
Adv. Rahul Karnik for defendant no.1
None for plaintiff.
ORAL ORDER
The defendant no.1 has taken out the present notice of
motion thereby prayed to stay the proceedings of the present suit and
all orders therein pending the disposal and decision of probate of the
Will in Testamentary petition no. 566/03 in the Hon'ble Bombay High
Court or in alternative to return the suit to the plaintiff to be club
with above testamentary petition and for other reliefs.
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2. It is contention of defendant no.1 that the plaintiff has
filed suit for administration of the property of late Shri Nanalal
Kothari. The plaintiff and defendants are brother. Nanalal Kothari
was their father. The deceased Nanalal Kothari has executed a Will
dated 16/03/1999 in favour of defendant no.1. This fact is very well
within knowledge of plaintiffs. The defendant has filed probate
petition bearing Testamentary petition no. 566/03, before the Hon'ble
Bombay High Court and it is pending for adjudication. Thus till
decision of the testamentary petition the present suit to be stayed.
3. The plaintiff failed to file reply to the present notice of
motion.
4. Heard the learned advocate Mr. Rahul Karnik for
defendant no.1. None presents for plaintiffs. Perused the record.
5. The learned advocate Shri. Karnik for defendant no.1
argued that the plaintiff has filed present suit against defendants for
administration of the property left by deceased father Nanalal
Kothari. Plaintiffs have also referred regarding the Will dated
16/03/1999 in their plaint. The deceased father Nanalal Kothari died
on 17/01/2001. During his life time Nanalal Kothari had executed
Will dated 16/03/1999 and the property would be administered and
bequeathed to the legatees entitled as per the Will. The defendant
no.1 has filed proceeding for probate bearing testamentary petition
no. 566/03.
6. It is further argued that in view of section 3 and 3(a) of
the Bombay City Civil Court 1948 this Court has no jurisdiction to
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entertain and try the suit and it is required to be heard by the Hon'ble
Bombay High Court in its testamentary jurisdiction.
7. The learned advocate for the defendant no.1 further
argued that plaintiffs are well aware about Will dated 16/03/1999 as
well as testamentary proceedings initiated by defendant no.1. The
original Will now in custody of the Hon'ble Bombay High Court
Testamentary and intestate Succession department since year 2003.
Plaintiffs are claiming that deceased father Nanalal Kothari died
intestate though they are referring about execution of Will dated
16/03/1966 in their plaint. Thus, such type of dispute came in the
ambit of the Court having testamentary and intestate jurisdiction
which is exclusively within the ambit and scope of the Hon’ble
Bombay High Court.
8. It is further argued that the defendant no.1 has to
establish his right as a legatee to properties left by deceased father
Nanalal Kothari before the competent Court of jurisdiction which can
grant probate of the Will, therefore the defendant no.1 has filed
testamentary petition no 566/03 before the Hon'ble Bombay High
Court. Thus till the decision of the question of proof of Will by the
Hon'ble Bombay High Court, the present matter needs to be stayed.
9. The learned advocate for the defendant no.1 relied on
the authorities reported in case of Nirmala Devi Vs. Arun Kumar
Gupta and Ors. Reported in (2005) 12 Supreme Court Cases 505;
wherein the Hon'ble Supreme Court held that “the decision in probate
proceedings on question of proof of Will having direct impact on related
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suit hence suit transferred it to probate Court and directed to be
disposed of along with it”.
In Balbir Singh Wasu Vs. Lakhbir Singh and Others
reported in (2005) 12 Supreme Court cases 503; the Hon'ble
Supreme Court held that “though the decision in Civil Court could not
conclude the probate proceedings, it would still be relevant, since
question should be granted or not would still be left to the determined
by the probate court. Hence, since a large number of issues would
overlap, probate proceedings and civil suit clubbed, to be heard together
by District Judge”.
In G. V. Iyengar and Another Vs. A.R. Sampathkumar
and Others reported in 2008 SCC Online Bom 249: The Hon'ble
Bombay High Court held that “Jurisdiction of City Civil Court in
testamentary and intestate matter is excluded”.
In Worli Adarsh Nagar Sagar Darshan Coopearative
Housing Society Ltd. Vs. Deepak Anaji Dhumale and Others
reported in 2013 SCC OnLine Bom 614 Bombay High Court; The
Hon'ble Bombay High Court held that “jurisdiction of the City Civil
Court is ousted visavis the testamentary matters”.
In Virendra Gupta Vs Nitendra Gupta & Others 1987
SCC Online DEL 105; Dr. Pramila Srivastava Vs. Asha Srivastava
& Ors. ILR (2014) I Delhi 201 and Adarsh Kumari Oberoi Vs.
Adarsh Kumar Oberoi & Ors. 2014 SCC Online DEL 7485; the
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Hon'ble Delhi High Court held that “there is no legal bar to be tried
together the probate petition and Civil suit by one Court”.
10. At the outset, I want to submit that there is no dispute in
respect of relationship in between the parties. Deceased Nanalal
Kothari was the father of plaintiffs and defendant no.1. It is submitted
that deceased Nanalal Kothari during his life time has executed Will
on 16/03/1999 thereby bequeathed his property to his legatees
entitled as per Will. Now there is dispute in between plaintiffs and
defendants regarding the administration of property left by deceased
Nanalal Kothari. Plaintiffs in the present suit are claiming that
deceased Nanalal Kothari died intestate and he never executed
alleged Will dated 16/03/1999. Thus they have referred in the plaint
regarding execution of alleged Will dated 16/03/1999. They have
challenge the authenticity and genuineness of the Will.
11. It is to be noted that the defendant no.1 has filed
testamentary petition no. 566/03 before the Hon'ble Bombay High
Court for seeking probate. The matter is pending for adjudication
before the Hon'ble High Court. The issue of Will is involved in the
matter pending before the Hon'ble High Court. Therefore it would not
be proper for this Court to proceed with the matter where the lis
regarding authenticity and genuineness of Will dated 16/03/1999 is
in question before the Hon'ble Bombay High Court. Thus it would be
appropriate to stay proceedings before this Court till the decision of
the testamentary petition no.566/03, pending before the Hon'ble
High Court. Thus, looking to the facts and circumstances of the case
and submission advances on behalf of the defendant no.1, I am of the
considered view that the present suit needs to be stayed till decision
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of testamentary petition no. 566/03. Hence I pass the following
order.
ORDER
Notice of motion no. 569/2020 is allowed in terms
of prayer clause (a)
Notice of motion is disposed off accordingly.
(Virendra D. Kedar)
Judge, City Civil & Sessions
Date:.30.07.2022 Court, Gr.Mumbai (C.R. No.1)
Dictated on : 30.07.2022
Transcribed on ;30..07.2022
Signed on : 30.07.2022
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED JUDGMENT/ORDER.”
UPLOAD DATE:02.08.2022 NAME OF STENOGRAPHER(GI)
Mrs. V. V. Mhatre
TIME:
Name of the Judge (With Court room no.) HHJ Shri Virendra D.Kedar
(Court Room No.1)
Date of Pronouncement of JUDGEMENT/ORDER 30.07.2022
JUDGMENT/ORDER signed by P.O. on 02.08.2022
JUDGEMENT/ORDER uploaded on 02.08.2022
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