Shakuntala Narendra JoshiVs1b. Meena Jairam Pethe and Ors.

Date: 22-02-2019
Business: Adv. for plff. present and has filed reply to N/M No.745/19 t.o.r
Adv. for D/1(b) present and has filed registered N/M No.745/19 along with supporting affd. t.o.r
Matter is adjd. to. 12.03.2019 for hearing on N/M No.745/19.
Next Purpose: NM FOR HEARING
Next Hearing Date: 12-03-2019

Date: 12-03-2019
Business: Adv. for plff. present.
Deft. in person present.
On request of Adv. for plff. Matter is adjd. to. 19.03.2019 for hearing on N/M.
L.O. at 3.45 p.m
Adv. for plff. present absent.
Adv. for D/3 and 4 present.
Matter is already adjd. to. 19.03.2019 for hearing on N/M.
Next Purpose: NM FOR HEARING
Next Hearing Date: 19-03-2019

Date: 19-03-2019
Business: Adv. P.G. Lad for plff. present.
Adv. Saraf for D/1(b) present.
Rest of the defts are absent.
On request of Adv. for D/1(b) Matter is adjd. to. 29.03.2019 for hearing on N/M No.745/19.
Next Purpose: NM FOR HEARING
Next Hearing Date: 29-03-2019

Date: 29-03-2019
Business: Adv. for plff. present.
Adv. for deft. present.
As court is busy in hearing on Suit No.799/17 and 912/17,  Matter is adjd. to. 10.04.2019 for hearing on N/M No.745/19.
Next Purpose: NM FOR HEARING
Next Hearing Date: 10-04-2019

Date: 10-04-2019
Business: Matter is adjd. to. 17.07.2019  for framing issues.
Next Purpose: NM FOR HEARING
Next Hearing Date: 17-07-2019

Date: 17-07-2019
Reason For Adjournment: court time is over
Next Purpose: NM FOR HEARING
Next Hearing Date: 19-07-2019

Date: 19-07-2019
Business: CA of Plaintiff present.
Advocate Mr. B. G. Saraf for Defendant present
L.O.
Advocate Ms. Sayli Apte for Plaintiff present and submitted that she has already filed NM reply however she is required to leave the court immediately as she is required to donate blood for her close relative. Considering submissions adjourned.
Case is adjourned to 19/08/2019 for NM hearing.
Next Purpose: NM FOR HEARING
Next Hearing Date: 19-08-2019

Date: 19-08-2019
Business: Advocate Ms. Sayli Apte h/f Adv. P. G. Laad for Plaintiff present
Advocate Mr. Rohan Bansal for Defendant no.1b and 3a present
Heard advocate Mr. Rohan Bansal in respect of Notice of Motion no.745/19.  It is argued that this is the suit filed for partition however suit property referred in the plaint is subject matter of the Will dated 22/08/1974 executed by Chintaman Jayram Pethe and hence, bar of section 3 of City Civil Court Act 1948 will operate against this suit.  It is further argued that the probate proceeding for obtaining probate for said Will was initiated by filing testamentary petition no.60/1989 which was later on numbered as testamentary suit no.3/94.  It is argued that in said suit probate was granted in favour of original Defendant no.1.  However, later on Hon\''ble High Court directed Defendant no.1 to surrender said probate Accordingly said probate is surrendered by Defendant no.1 to the court.  He also submitted that testamentary suit no.3/94 is disposed off by Hon\''ble High Court by passing order dated 18/08/2009 observing that the executor expired on 25/01/2009. The Chamber Summons for bringing legal heirs of executor was dismissed on 28/07/2009.
    In view of this the present suit as well as the petition stand dismissed with liberty.
Advocate for Defendant argued that above order passed by Hon\''ble High Court is exhibited as Exh.31 in this suit at the time of cross examination of DW-1.  It is argued that in view of said order of Hon\''ble High Court Defendants have filed testamentary suit no.125/19.  According to Defendant\''s advocate Hon\''ble High Court has granted liberty to Defendants to file fresh testamentary suit, hence testamentary suit no.125/19 is filed and therefore as per section 3 of City Civil Court Act, the partition suit filed by Plaintiff is not maintainable as the order which will be passed in testamentary suit will directly and substantially affect the findings of this suit.  He also referred the case between Ashok Kumar Ray Vs Smt. Reba Biswas and Ors, reported in Indian Kanoon. http/indiankanoon.ors/doc/179767066.  Defendant\''s advocate argued that in the case of Ashok Kumar Ray the case of Nirmala Devi is referred and relying upon decision of Hon\''ble Apex Court given in Nirmala Devi\''s case Judgment of the case of Ashok Kumar Ray is pronounced.  Hence, according to Defendant\''s advocate Notice of Motion is necessary to be made absolute in view of facts of the suit and case laws cited by him.
Heard advocate for Plaintiff who submitted that this suit is filed for partition and not for testamentary relief.  Cause of action for filing this suit approved on 04/08/1989 and suit is filed in October 1989.  It is argued that as probate granted in favour of Defendant no.1 is surrendered as ordered by Hon\''ble High Court and as testamentary suit no.3/94 is dismissed section 213 of Indian Succession Act will not come into play against relief claimed in this suit.  Hence, section 3 of City Civil Court Act will not operate as barred to this suit. Plaintiff\''s advocate pointed out that testamentary suit no.125/19 is yet to be admitted in Hon\''ble High Court and merely lodging of said suit is not sufficient to hold that the liberty was granted by Hon\''ble High Court to Defendants to file fresh testamentary suit, hence Notice of Motion is necessary to be dismissed.
Case is adjourned to 29/08/2019 for NM order.
Next Purpose: NM  ORDERS
Next Hearing Date: 29-08-2019

Date: 29-08-2019
Business: Advocate Sayli Apte for Plaintiff present
None present for Defendant.
F.R.S.R. following order has passed-
                                     ORDER
Notice of Motion no.745 of 2019 stands disposed off/dismissed.
Case is adjourned to 17/10/2019 for hearing on application.
Nature Of Disposal: DISMISSED
Disposal Date: 29-08-2019

Main Case No: SUIT/0110312/1990
Main Cnr: MHCC010004431990
Main Filing No: 111447

Registration Number: 100745/2019
Transfer Date: 11-04-2019
From Court: 4 - IC REGISTRAR CITY CIVIL COURT MUMBAI
To Court: 9 - COURT 09 ADDL SESSIONS JUDGE

Filing Number: 102209/2019
Filing Date: 21-02-2019
First Hearing Date: 22nd February 2019
Decision Date: 29th August 2019
Court Number And Judge: 9-COURT 09 ADDL SESSIONS JUDGE