Bombay High Court
Savita W/O Naresh Kheria And Vijaykumar ... vs Vikas Vijay Seksaria on 2 November, 2020
Author: B. P. Colabawalla
Bench: B. P. Colabawalla
IAL.3739.2020.doc
dik
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
TESTAMENTARY AND INTESTATE JURISDICTION
Digitally
signed by
Dhanappa
Dhanappa I. Koshti INTERIM APPLICATION (L) NO. 3739 OF 2020
IN
I. Koshti Date:
2020.11.02
12:46:53
TESTAMENTARY PETITION (L) NO. 3195 OF 2020
+0530
Mrs. Savita w/o Naresh Kheria ...Applicant/orig.caveator
vs
Mr. Vikas s/o late Vijaykumar P. Seksaria ...Resp./Orig.Petitioner
and
Mrs. Savita w/o Naresh Kheria ...Applicant/Org.Caveator
.....
Mr A.M.Saraogi for the applicant
Rina H. Pujara and Randhir Kale for the Petitioner.
.....
CORAM : B. P. COLABAWALLA, J.
(Through Video Conferencing) 2nd NOVEMBER, 2020.
P.C. :
The Registry has placed this matter on board today to point out that there is a mistake in the order dated 5 th October, 2020, namely, that though an Interim Application was fled, the same is referred to as a Chamber Summons in the said order.
2 It is accordingly ordered that, wherever the words "Chamber Summons" appear in the said order, the same shall be substituted with the words "Interim Application". No other Pg 1 of 4 IAL.3739.2020.doc correction is sought. The aforesaid correction shall be carried out in the original order as well as in the order uploaded on the server. 3 This order shall be digitally signed by the Private Secretary/Personal Assistant of this Court. All concerned shall act on production by fax or e-mail of a digitally signed copy of this order.
(B. P. COLABAWALLA ,J.) THE CORRECTED ORDER READS THUS:-
IN THE HIGH COURT OF JUDICATURE AT BOMBAY TESTAMENTARY AND INTESTATE JURISDICTION INTERIM APPLICATION (L) NO. 3739 OF 2020 IN TESTAMENTARY PETITION (L) NO. 3195 OF 2020 Mrs. Savita w/o Naresh Kheria ...Applicant/orig.caveator vs Mr. Vikas s/o late Vijaykumar P. Seksaria ...Resp./Orig.Petitioner and Mrs. Savita w/o Naresh Kheria ...Applicant/Org.Caveator .....
Mr A.M.Saraogi for the applicant Rina H. Pujara and Randhir Kale for the Petitioner.
.....
CORAM : B. P. COLABAWALLA, J.
(Through Video Conferencing)
5th OCTOBER, 2020.
Pg 2 of 4
IAL.3739.2020.doc
P.C. :
This Interim Application has been fled by the applicant/ caveator in the above Testamentary Petition seeking the following reliefs ;
"(a) that pending the hearing and final disposal of the probate petition/ proceedings filed by the original petitioner, the original petitioner be restrained by an order and injunction of this Hon'ble Court from in any manner creating any third party rights and parting with possession in respect of movable and immovable properties as mentioned in the list in any manner whatsoever;
(b) that pending the hearing and final disposal of the present probate proceedings, the Court Receiver, High Court, Bombay be appointed as Receiver in respect of the properties mentioned in the list annexed with the present application appearing at Exhibit-D to the present application, save and except Flat No. 103, 1st Floor, Wing A/11, Siddharth Nagar, Bldg.
No.3 CHS Ltd. Western Express Highway, Borivali (E) Mumbai - 400 066 with a direction to divide all the income generated out of the same between the applicant and the original petitioner in the ratio of 50:50 with such further direction as this Hon'ble Court may deem fit and proper in the matter."
2 On going through the Interim Application, I fnd that the prayers sought for cannot be granted in the Testamentary Petition. This has been clearly held by a single Judge of this Court in the case of Rupali Mehta Vs Tina Narinder Sain Mehta reported in 2006(6) Mh.L.J. 786 as well as by a Division Bench of this Court in the case of Ramchandra Vs Vithalrao reported in 2011(4) Mh.L.J. 50. As held in these two judgments, the Probate Court is only concerned with the Pg 3 of 4 IAL.3739.2020.doc question as to whether a will of the deceased is genuine and that it has been made voluntarily. It cannot grant interlocutory relief in respect of the property which form part of the estate of the deceased prior to the grant of the probate. In view of the aforesaid two decisions no relief can be granted in the above Interim Application. The applicant/ caveator is free to seek these reliefs in any substantive proceedings. Mr. Saraogi, the learned counsel appearing on behalf of the applicant/ caveator states that they have already fled their substantive proceedings before the City Civil Court, Dindoshi. The applicant/ caveator herein, who is the plaintiff before the City Civil Court, Dindoshi, will be at liberty to seek these reliefs in those proceedings. If such reliefs are sought for, the same shall be decided by the City Civil Court, Dindoshi on its own merits and in accordance with law. With the aforesaid clarifcation, the Interim Application is dismissed. No order as to costs.
3 This order shall be digitally signed by the Private Secretary/ Personal Assistant of this Court. All concerned shall act on production by fax or e-mail of a digitally signed copy of this order.
(B. P. COLABAWALLA ,J.) Pg 4 of 4