Bombay High Court
Minu Yusuf Patel And Anr vs The State Of Maharashtra And Anr on 25 February, 2019
Author: A.M.Badar
Bench: A.M.Badar
(3)APEALNo.3132019.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.313 OF 2019
Minu Yusuf Patel & Anr. ... Appellants
V/s.
The State of Maharashtra & Anr. ... Respondents
.....
Mr.Mihir Gheewala with Mr.Santosh G. Pawar, Advocate for the
Appellants.
Mr.P.H.Gaikwad-Patil, APP for the Respondent No.1/State.
Mr.A.H.H.Ponda with Mr.Vinod Kashid, Advocate for the
Respondent No.2.
....
CORAM : A.M.BADAR J.
DATED : 25th FEBRUARY 2019.
P.C. :
1 This is an appeal under Section 454 of the Code of
Criminal Procedure challenging the Order passed by the learned
trial Court on 18/02/2019 under Section 452 of the Code of
Criminal Procedure thereby ordering disposal of the property.
2 Heard the learned Counsel appearing for the
appellants. He argued that the appellants are Executor of the Will.
Probate Petition is pending before this Court. The appellants are
Gaikwad RD 1/4
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having fiduciary rights as Executor and bequeath is not fully in
favour of the respondent No.2. Therefore, the learned trial Court
erred in awarding entire property to the respondent No.2 though it
is with the direction to execute the bond. The learned Counsel
placed reliance on the Judgment of the Honourable Apex Court in
the matter of Bharat Sanchar Nigam Limited v.
Suryanarayanan & Ors.1.
3 The learned Counsel appearing for respondent No.2
vehemently opposed the prayer for grant of interim relief by
arguing that the learned trial Court was competent to dispose of
the property till disposal of the Probate Proceeding. The learned
Counsel appearing for the respondent No.2 relied on the
Judgment of the Honourable Apex Court in the matter of Syed
Askari Hadi Ali Augustine Imam & Anr. v. State (Delhi
Administration) & Anr.2 to contend that mere pendency of
Probate Proceeding is not enough. It is argued that Criminal
Proceedings are always given primacy over Civil Proceedings and
in the wake of Order regarding disposal of property by the learned
trial Court, Section 41 of the Indian Evidence Act is not applicable
in the case in hand. He placed reliance on Judgment of the
Honourable Apex Court in the matter of Kishan Singh (dead)
Through LRs. v. Gurpal Singh & Ors.3.
1 2019 (1) SCALE 287.
2 (2009) 5 Supreme Court Cases 528.
3 (2010) 8 Supreme Court Cases 775.
Gaikwad RD 2/4
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4 I have considered the submissions so advanced. The
appellants/accused are convicted of the offences punishable under
Sections 408, 418 and 420 read with Section 34 of the Indian
Penal Code by the learned trial Court and thereafter the impugned
Order regarding disposal of property under Section 452 of the
Code of Criminal Procedure came to be passed. The learned trial
Court observed that it has no right to decide the issue of
ownership and title of the property so also the issue as to who is
the legal heir of the deceased. It is further observed that Probate
Petition is pending before this Court. The learned trial Court has
observed that the custody of the property is being handed over to
the First Informant/respondent No.2 as being legal heir of
deceased.
5 It is seen that as per stand of the appellants/accused
deceased Ramzan Thanawala had executed a Will on 13th day of
October 2014 and petition for grant of probate of last will and
testament of Ramzan Thanawala is pending before this Court.
According to the recitals in the Will Deed, the learned Counsel for
the appellants submitted that the entire property is not
bequeathed to the First Informant.
6 It is thus seen that arguable points are made out and
the matter deserves consideration. Subject matter of the lis is
required to be protected. Therefore, the Order :
Gaikwad RD 3/4
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ORDER
(i) Admit.
(ii) Hearing expedited.
(iii) In the meanwhile, interim relief in prayer clause (c) (A.M.BADAR J.) Gaikwad RD 4/4 ::: Uploaded on - 25/02/2019 ::: Downloaded on - 21/03/2019 13:29:29 :::