-1- IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION Writ Petition No.6439 of 2007 Kiran Nagappa Diddi ..Petitioner vs. Ravindra Nagappa Diddi and others ..Respondents Shri A.A.Kumbhakoni i/b Shri T.D.Deshmukh for petitioner. Shri Pankaj Das for respondent nos.1 and 2. CORAM: S.C.DHARMADHIKARI J. CORAM: S.C.DHARMADHIKARI J. CORAM: S.C.DHARMADHIKARI J. 31st January, 2008 31st January, 2008 31st January, 2008 P.C. P.C. P.C. 1. The petitioner filed an application before the Civil Judge, Sr.Dn., in Final Decree Proceedings No.4 of 1998. By that application the petitioner placed on record the fact that Special Civil Suit No.54 of 1986 is at the stage of final decree proceedings. The preliminary decree has been passed by which the shares have been determined and ascertained. The petitioner pointed out that one of the parties to the suit was one Gangabai Nagappa Diddi. The petitioner pointed out that the said Gangabai had executed a will on 2nd July, 1998. She expired on 23rd August, 2002. Will states that the property coming to her share should exclusively come to -2- the petitioner Kiran. The petitioner produced copy of the Will. He pointed out that the earlier application for issuance of probate was filed but that application was rejected on the ground that the probate of the Will would not be necessary. 2. The petitioner also pointed out that there is a subsequent Will of 2nd June, 2006 which supersedes and cancels the earlier will of 3rd February, 1998. Thus, his case was that the will of 2nd June 1998 is the last will of the said Gangabai. 3. The prayer in the application was, therefore, that the petitioner should be declared to be succeeding to the estate of Gangabai so also the share that would be coming to her share in the final decree proceedings. This application was filed on 15th December, 2006 and was opposed by the respondents before me. They did not object to the said Gangabai getting her share as per the preliminary decree in the final decree proceedings. However, they dispute that the petitioner alone can succeed to the same and the said will is not genuine and is bogus one. -3- 4. The learned Judge refused to undertake this enquiry at the stage where the matter was pending before him. He has rejected the application by observing that it is permissible to undertake exercise of having the will proved in the proper proceedings. 5. Reliance was placed on the decision of the Hon’ble Supreme Court in the matter of Baliram Atmaram Kelapure Vs. Smt.Indirabai and others (AIR 1996 S.C.2024). That judgment is clearly distinguishable. The facts in that judgment would disclose that the Supreme Court did not approve of this Court accepting the will as a genuine and altering the change in the preliminary decree on that basis. In this case the shares are determined and fixed by the preliminary decree. Shri Kumbhakoni makes a statement that the shares of the parties to the suit need not be altered and changed and even if the petitioner proves the will as a genuine there is no question of any changes being made in the shares. He wants the issue as to whether he alone could succeed to the estate of Gangabai or others as well decided in the present proceedings. He submits that the petitioner -4- would prove the will in accordance with law and even if the said will is proved and the petitioner succeeds in that behalf, the share as determined by the preliminary decree need not be altered. 6. In my view, in the light of the statement made and considering that ruling of the Supreme Court is distinguishable on facts, interest of justice would be subserved if the enquiry sought by the petitioner under the subject application is directed to be undertaking by the Trial Court in the final decree proceedings. However, merely permitting such an enquiry to be held does not mean that the Court has pronounced the genuineness or otherwise of the Will and all pleas and contentions in that behalf are kept open. Needless to state that the petitioner having made the above statements which are recorded and accepted by this Court as the opportunity as sought by him is granted in the peculiar facts of this case. There will be no question of shares being altered or modified in any event. Petition is disposed of. 7. The parties are agreeable to appear before the Trial Court on 12th February, 2008. After -5- the parties so appear the Trial Court to take up for consideration the subject application (Exh.23) and endeavour and dispose of the same as expeditiously as possible and within a period of six weeks from the date of appearance. The Trial Court also to endeavour and dispose of the final decree proceedings thereafter expeditiously. (S.C.DHARMADHIKARI J.) (S.C.DHARMADHIKARI J.) (S.C.DHARMADHIKARI J.)