Bombay High Court
Vijaykumar Dattatraya Rawoot vs Ratnakar Gajanan Dolas on 19 January, 2022
Bench: S.J. Kathawalla, Milind N. Jadhav
Digitally signed
SWAROOP by SWAROOP
SHARAD
SHARAD PHADKE
Kanchan P Dhuri PHADKE Date: 2022.01.19
20:26:35 +0530 1 / 4 2-IAL-645-2022.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
APPEAL (L) NO. 638 OF 2022
IN
MISCELLANEOUS TESTAMENTARY PETITION (L) NO. 14072 OF 2021
Vijaykumar Dattatraya Rawoot ... Appellant
Versus
Ratnakar Gajanan Dolas ... Respondent
WITH
INTERIM APPLICATION (L) NO. 645 OF 2022
INTERIM APPLICATION (L) NO. 647 OF 2022
IN
APPEAL (L) NO. 638 OF 2022
IN
MISCELLANEOUS TESTAMENTARY PETITION (L) NO. 14072 OF 2021
.........
Mr. Prashant Pandey alongwith Aiqan Memon instructed by W3Legal LLP for the
Appellant.
Mr. Ramesh Ramamurthy alongwith Mr. Saikumar Ramamurthy for the Respondent.
Ms. Reshma Takle, present.
Mr. Vijaykumar Rawoot, present.
.........
CORAM : S.J. KATHAWALLA AND
MILIND N. JADHAV, JJ.
DATED : JANUARY 19, 2022.
(through video-conferencing)
P.C. :-
1. Heard the Learned Advocates appearing for the parties. Kanchan P Dhuri 2 / 4 2-IAL-645-2022.odt
2. The above Appeal arises from the Order passed by the Learned Single Judge dated 8th July, 2021 (impugned Order) in Miscellaneous Testamentary Petition (L) No. 14072 of 2021. The said Order reads thus :
"1. This is a miscellaneous petition for leave to appoint the petitioner as guardian of minor Master Varad Vijaykumar Rawoot (hereinafter referred as son) for the purpose of applying for Letters of Administration to the property and credits of one Alka Vijaykumar Rawoot who died on 21/04/2021. Master Varad Vijaykumar Rawoot is the son of Alka (deceased) and petitioner is the father of deceased and maternal grand father of Varad (son).
2. Deceased died leaving behind her husband Vijaykumar Rawoot, respondent and her minor son. It is alleged in the petition that relationship between deceased and respondent was not good and even during life time of deceased, respondent failed and neglected to take proper care of the minor son. After deceased died what the minor son had to go through has been narrated in paragraph no.10 of the petition. It is also alleged that respondent has applied to the Registrar General of this court to pay over services benefit and other government dues as nominee of the deceased and if the amounts are paid, petitioner apprehends respondent will not pay any amount to the minor son.
3. Mr. Ramamurthy states that copy of this petition has been served on respondent. Respondent is not present though served. Therefore, petition is allowed in terms of prayer clause (a). The amounts that will become payable to the legal heir of the deceased shall not be paid over until respondent is heard or until the concerned authority is satisfied that respondent though served has not appeared.
4. Petition accordingly stands disposed."
Kanchan P Dhuri 3 / 4 2-IAL-645-2022.odt
3. The impugned Order was passed by the Learned Single Judge on the basis that despite the notice being served on the Appellant (Original Respondent), the Appellant (Original Respondent) is not present. After going through the relevant documents we have noted that the said statement is incorrect. In view thereof, we pass the following Order by consent :
(a) The Order passed by the Learned Single Judge dated 8th July, 2021 is set aside.
(b) The Miscellaneous Testamentary Petition (L) No. 14072 of 2021 which is now converted to Guardianship Petition No.8 of 2021, shall stand restored to its original status and shall thereupon be heard by the Learned Single Judge taking up Miscellaneous Testamentary Petitions.
(c) The Appellant (Original Respondent) shall file his Affidavit-in-Reply to the Miscellaneous Testamentary Petition (L) No. 14072 of 2021 on or before 21 st January, 2022.
(d) The Respondent (Original Petitioner) shall file his Affidavit-in-Rejoinder to the Miscellaneous Testamentary Petition (L) No.14072 of 2021 on or before 24 th January, 2022.
(e) The Learned Single Judge is requested to hear and dispose off the application for ad-interim reliefs within a period of one week thereafter.
(f ) Without going into the merits of the case, the custody of Master Varad will not be disturbed until the Learned Single Judge passes ad-interim or final order in the Kanchan P Dhuri 4 / 4 2-IAL-645-2022.odt Miscellaneous Testamentary Petition (L) No.14072 of 2021.
(g) Parties shall move before the Learned Single Judge on 20 th January, 2022 at 11.00 a.m. and obtain necessary directions.
(h) The Appellant (Original Respondent) shall be at liberty to make an application before the Learned Single Judge seeking access to his son Master Varad through video-conferencing or otherwise.
(i) All contentions of the parties are kept open including the issue of maintainability.
(j) The above Appeal as well as Interim Applications are accordingly disposed off.
( MILIND N. JADHAV, J. ) ( S.J. KATHAWALLA, J. )