Final Order 1

Order Details: Notice of Motion
Pdf Text: NM 713-19 in Suit no. 2697-13
1 Date : 03.09.2019
IN THE BOMBAY CITY CIVIL COURT FOR GREATER MUMBAI
NOTICE OF MOTION NO. 713 OF 2019
IN
SUIT NO. 2697 OF 2013
(CNR NO.MHCC010018502019)
Ms. Shila Kantilal Mehta .. Plaintiff
Versus
Shri. Atul Kantilal Mehta .. Defendant
Appearances :
Adv.S.K.Chaturvedi for plaintiff present.
Defendant and his advocate absent.
Coram : His Honour Judge
Shri. A.H.Laddhad
Additional Judge
CR No. : 7
Date : 03.09.2019
1. The defendant has filed instant notice of motion for rejection
of plaint under Order VII rule 11 on the ground that in view of bar
contained u/s 213 of Indian Succession Act, 1925, the present suit
is not maintainable till Plaintiff obtained probate of alleged will.
2. It is contended by the defendant that the Plaintiff filled
instant suit for claiming 50% share in the partnership business of
M/s Kantilal Chandulal & co, shop no.10, Shree Shreepal Bhavan,
50 Nagdevi Street, Mumbai, One half share of the deceased in the
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goodwill and tenancy right of the said firm of Gala admeasuring
about 200 sq. feets on the ground floor of the building know as
Pathawarwala Building , Anantwadi, Mumbai and One half share
of the deceased in the ownership of the suit shop no.10, Shree
Shreepal Bhavan, 50 Nagdevi Street, Mumbai. The aforesaid claim
made by the plaintiff is on the basis of alleged will dated
19.06.2009. The Plaintiff filed probate petition no. 1114 of 2011
and defendant has filed caveat opposing the probate. Thus, in view
of bar contained u/s 213 of the Indian Succession Act, no suit can
be filled unless Plaintiff obtained probate. The learned advocate
for defendant in support of his submissions relied on the judgment
of Mr. Justice D.K.Deshmukh in case of Rupali Mehta V/s. Tina
Narinder Sain Mehta.
3. Per contra Plaintiff opposed the motion by filling say and
contended that the defendant in order to delay the matter, after
laps of five years, filled instant motion only with view to avoid
crossexamine the plaintiff witness. Hence, Plaintiff prayed for
rejection of the motion.
4. Heard both the side, perused notice of motion, say and
pleadings of the parties. The Plaintiff filled instant suit against the
defendant interalia praying for following reliefs :
(a) the plaint be rejected under Order 7 Rule 11 of the
Code of Civil Procedure, 1908.
(b) costs of Notice of Motion be provided for and;
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(c) such further and other reliefs as the nature and
circumstances of the case may require be granted.
5. On perusal of the entire claim of the Plaintiff no doubt that
she is claiming her share on the basis of alleged will dated
19.06.2009 of which the probate petition is pending before
Hon'ble High Court. As per section 213, No right as executor or
legatee can be established in any court of Justice, unless a court of
competent jurisdiction has granted probate of the will under which
the right is claimed. The Hon'ble Bombay High Court in case of
Ramniklal Amritla Shah V/s. Bhupendra Implex (P) Ltd (2001)
2 Mhj 536 held that " Section 213 of the Indian Successions Act is
merely a bar to a person "establishing his right as an executor or
legatee in an action. The bar is really one against passing of a
decree without probate certificate and not entertainment of the
suit itself.
6. Thus, in view of the aforesaid judgment the bar is not against
the filling of the suit. Hence, in my view, the Plaint cannot be
rejected on the ground of bar under Indian Succession Act. In view
of the pendancy of the probate Petition, this court cannot passed
the final decree. Hence, in view of the above observation, in my
view, there is no merit in the motion and same needs to be
dismissed. Thus, I proceed to pass the following order :
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4 Date : 03.09.2019
ORDER
1. Notice of Motion No. 713 of 2019 is dismissed with cost.
2. Notice of Motion No. 713 of 2019 is disposed of accordingly.
(A.H.Laddhad)
Additional Judge
Bombay City Civil Court
Dated : 03.09.2019
Dictated on : 03.09.2019
Typed on : 03.09.2019
Operative Part uploaded on CIS : 03.09.2019
Draft Submitted on : 03.09.2019
Checked on : 21.09.2019
Signed on : 21.09.2019
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5 Date : 03.09.2019
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
21/09/2019 at 3.00 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
03/09/2019
JUDGMENT/ORDER signed by P.O.
on
21/09/2019
JUDGMENT/ORDER uploaded on 21/09/2019
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