Final Order 1

Order Details: Notice of Motion
Pdf Text: NM 680-19 in S.C. Suit no. 4017-10
1 Date : 18.10.2019
IN THE BOMBAY CITY CIVIL COURT FOR GREATER MUMBAI
NOTICE OF MOTION NO. 680 OF 2019
IN
S.C. SUIT NO. 4017 OF 2010
(CNR NO.MHCC01 0017712019 )
Manasseh Samuel Jacob & Ors. .. Plaintiffs
Versus
Ephraim Samuel Jacob .. Defendant
Appearances :
Adv.Rahul Raut for plaintiff present.
Defendant no.1 in person present
Coram : His Honour Judge
Shri. A.H.Laddhad
Additional Judge
CR No. : 7
Date : 18.10.2019
1. The defendant no. 1 has filed instant Notice of Motion
seeking following reliefs :
(a) That the above suit No. 4017 of 2010 be adjourned sine
die till final disposal of Testamentary Suit No. 4 of 2016
and Testamentary Petition (lodging) No. 3384 of 2018
both pending in the Hon’ble Bombay High Court in
respect of suit property.
(b) Interim and adinterim orders in terms of prayer (a)
above.
(c) Cost of the Notice of Motion be provided for.
-- 1 of 5 --
NM 680-19 in S.C. Suit no. 4017-10
2 Date : 18.10.2019
(d) Such other and further relief as this Hon’ble Court may
deem fit and proper be granted.
2. It is contended by the defendant no. 1 that the plaintiff filed
present suit for declaration that they have 3/5th share in the suit
flat bearing No. 1501 on 15th Floor, situated at Mazgaon Tower,
Mazgaon, Mumbai – 400 010 and injunction against defendants.
It is contended by the defendant no. 1 that he has filed Written
Statement mentioning about the fact of ‘Will’ executed by his
parents. He has filed Probate Petition in respect of Will and
Testament of his mother namely Mrs. Sarah Samuel Jacob being
Testamentary Petition No. 1312 of 2015 before Hon’ble Bombay
High Court. The heirs of deceased mother was served with the
said petition and present plaintiff no. 1 has filed Caveat on
14.12.2014. Therefore, the said petition was converted into
Testamentary Petition No. 4 of 2016. Thus, in view of the
pendency of Testamentary Petition the present suit should be
adjourned sine die or stayed till disposal of the Testamentary
Petition. It is further contended by the defendant no. 1 that he has
also filed Testamentary Petition No. 3384 of 2018 in respect of suit
flat which is pending for hearing and final disposal of the suit.
Therefore, simultaneously two suits can not go on for the same
suit property. Therefore, defendant no. 1 for adjourning the
present suit sine die.
3. The Notice of Motion is opposed by the plaintiff no. 1 by
filing say. It is contended by the plaintiff no. 1 that present Notice
of Motion is filed by the defendant no. 1 with sole intention to
-- 2 of 5 --
NM 680-19 in S.C. Suit no. 4017-10
3 Date : 18.10.2019
delay the trial and disposal of the suit. As per law, probate case is
only concerned with the genuineness of the Will. The dispute
about the property mentioned in the Will is not within jurisdiction
of probate Court. The probate Court is also not concerned about
the title of the property. Even assuming the Will is Probate, the
probate Court can not decide the suit. The title of the property can
be decide only by Civil Court.
4. It is further contended by the plaintiff that they have filed
instant suit for entitlement of their share in the suit property.
Therefore, the present suit can not be stayed just because of the
pendency of the Testamentary Petition. Thus, plaintiff prayed for
dismissal of the Notice of Motion.
5. Plaintiff in respect of his submission, relied on the following
judgments AIR 2003 Supreme Court 3669 in case of Delhi
Development Authority V/s. Mrs. Vijaya C. Gurshaney and Anr.
and AIR 2011 Bombay 136 in case of Ramchandra Ganpatrao
Hande @ Handege V/s. Vithalrao Hande & Ors.
6. Heard both the sides. Perused Notice of Motion, reply and
plaint. It is not in dispute that plaintiff filed instant suit for
declaration and injunction in respect of suit property and claiming
their share in the suit property. It is the contention of the
defendant no. 1 that as the probate petition is pending before the
Hon’ble Bombay High Court present suit can not be proceeded till
decision of probate.
-- 3 of 5 --
NM 680-19 in S.C. Suit no. 4017-10
4 Date : 18.10.2019
7. In view of Section 266, 268 and 269 of Indian Succession
Act, jurisdiction of Probate Court is limited to consider the
genuineness of the Will. The question of title of the property can
not be gone into in probate proceeding. It is further well settled
that there is no bar to continue with the Civil proceeding, merely
because the Testamentary Petition is pending. The Civil Court has
to proceed with the suit. The Bar is only with respect to giving
final verdict. Hence, in my view, there is no substance in the
Notice of Motion and same needs to the dismissed. Thus, I
proceed to pass the following order :
ORDER
1. Notice of Motion No. 680 of 2019 is hereby dismissed.
2. Parties to bear their own cost.
3. Notice of Motion No. 680of 2019 is disposed off accordingly.
(A.H.Laddhad)
Additional Judge
Bombay City Civil Court
Dated : 18.10.2019 Greater Bombay.
Dictated on : 18.10.2019
Typed on : 18.10.2019
Draft Submitted on : 18.10.2019
Checked on : 22.10.2019
Signed on : 22.10.2019
-- 4 of 5 --
NM 680-19 in S.C. Suit no. 4017-10
5 Date : 18.10.2019
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
22/10/2019 at 4.00 p.m. (Ms. V.V.Sawant)
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court room
no.)
Shri A.H.LADDHAD
(C.R. No.7)
Date of Pronouncement of
JUDGMENT/ ORDER
18/10/2019
JUDGMENT/ORDER signed by P.O.
on
22/10/2019
JUDGMENT/ORDER uploaded on 22/10/2019
-- 5 of 5 --