1 mst IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.8986 OF 2009 Splendid Mercantile Pvt.Ltd. and others Petitioners versus Anant Sakharam Kale, since deceased through LRs. Respondents Mr.G.S.Godbole i/by Nitin Mulye for petitioners. S.M.Gorwadkar for respondents 4 to 7. CORAM : A.S.OKA, J. DATE : 15th April 2010 PC : 1. Heard learned counsel for the petitioners and learned counsel for 4th to 7th respondents who are the contesting parties for the purposes of this writ petition under Article 227 of the Constitution of India. 2. As the petition arises out of an application of execution of the decree in a suit filed in the year 1976, the same is taken-up for final disposal. One Dhanabai Kale is the original plaintiff. It is the case of the petitioners that after execution application was filed by the said original plaintiff Dhanabai, a will was executed by the deceased Dhanabai on 9th February 1989 in favour of her daughter Indumati, whose name after marriage became Shama Hasan Shaikh. In the year 1992, the said Dhanabai died. The case of the petitioners is that the said Shamabi 2 became entitled to intestate the said Dhanabai not only on the basis of the will but on the basis of law of Intestate Succession being the only legal representative of said Dhanabai. The petitioner nos.1 to 7 claimed on the basis of a sale deed dated 14th March 1996 executed by said Shamabi who is respondent no.8. On the application made by the petitioners, the Executing Court has added the present petitioners as decree holder nos.2 to 9. 3. An application was made by the petitioners at Exhibit-153 seeking a direction of the Trial Court in accordance with section 54 of the Code of Civil Procedure, 1908 (hereinafter referred to as "the said Code"). An application was made by respondent nos.4 to 7 at Exhibit-159 raising objections under section 47 of the said Code. It was contended that though Indumati @ Shamabi was the only legal representative of the deceased Dhanabai, as she had converted herself into Mohamedan religion, she had lost her right of heirship from her mother. In the said application there is a challenge to the will allegedly executed by Dhanabai in favour of the said Shamabi. The said application was opposed by the petitioners. By the impugned order dated 1st September 2009, the learned Trial Judge purported to frame an issue on the question of validity of the impugned will. This is the order subject matter of challenge of this writ petition under Article 227 of the Constitution of India. It must be noted here that there is already a direction issued by this Court that the application for execution shall be decided before the end of September 2009. 3 4. I have heard the submissions of the learned counsel for the petitioners and learned counsel for 4th to 7th respondents. Admittedly the original decree holder is Dhanabai. The petitioners are claiming to have became owners of the share of Dhanabai on the basis of a sale deed executed in their favour by said Indumati @ Shamabi. There are two contentions raised in application at Exhibit-159. The first is that though the said Indumati @ Shamabi was the only legal representative of the deceased, on account of her conversion to Mohammaden religion, she became disentitled to inherit the property of her mother. The second contention is that the will allegedly executed by Dhanabai in favour of the said Indumati @ Shamabi is not valid and legal. There is a challenge to the said will. There is another objection raised in para 3 of the application at Exhibit-159. 5. Even assuming that the decree will be governed by section 54 of the said Code, the objections raised by 4th to 7th respondents will have to be decided by the Civil Court in view of the mandate of section 47 of the said Code. There was no necessity for the Trial Court to have framed a specific issue. In view of the mandate of section 47 of the said Code, all objections raised in application at Exhibit-159 will have to be decided by the Trial Court after giving an opportunity to the parties to adduce the evidence relevant to the objections which are raised. The impugned order needs modification to that extent. In view of the earlier order of this Court, the adjudication contemplated by section 47 will have to be expedited. 4 6. Hence, the writ petition is disposed of by passing following order :- A) The impugned order dated 1st September 2009 is quashed and set aside; B) The Trial Court shall decide the objections raised by the respondent nos.4 to 7 in application at Exhibit-159 in accordance with law after giving an opportunity to the parties to lead evidence which is relevant to the objections; C) This exercise shall be completed by the Trial Court as expeditiously as possible and in any event on or before 31st August 2010; D) The application made by the petitioners at Exhibit-153 will have to be also decided along with the objections raised in application at Exhibit-159; E) The Trial Court shall hold an inquiry and shall pass orders on both the applications on or before 31st August 2010. The parties are directed to co-operate with the learned Trial Judge for expeditious disposal of the matter; F) All contentions of the parties are expressly kept open. (A.S.OKA, J.) 5 mst FARAD CONTINUATION SHEET IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPLICATION NO.1049 OF 2010 IN WRIT PETITION NO.8986 OF 2009 Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions and Registrar’s orders Court’s or Judge’s orders CORAM : A.S.OKA, J. DATE : 15th April 2010 PC :- 1. Heard learned counsel for the applicants and learned counsel for respondents 4 to 7. In view of the averments made in the civil application, the same is allowed in terms of prayer clause (a). (A.S.OKA, J.) 6 mst FARAD CONTINUATION SHEET IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPLICATION NO.1050 OF 2010 IN WRIT PETITION NO.8986 OF 2009 Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions and Registrar’s orders Court’s or Judge’s orders CORAM : A.S.OKA, J. DATE : 15th April 2010 PC :- 1. Heard learned counsel for the applicants and learned counsel for respondents 4 to 7. In view of the averments made in the civil application, the same is allowed in terms of prayer clauses (a) to (c). (A.S.OKA, J.) 7 mst FARAD CONTINUATION SHEET IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPLICATION NO.1051 OF 2010 IN WRIT PETITION NO.8986 OF 2009 Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions and Registrar’s orders Court’s or Judge’s orders CORAM : A.S.OKA, J. DATE : 15th April 2010 PC :- 1. Heard learned counsel for the applicants and learned counsel for respondents 4 to 7. In view of the averments made in the civil application, the same is allowed in terms of prayer clauses (a) to (c). (A.S.OKA, J.) 8 mst FARAD CONTINUATION SHEET IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPLICATION NO.1053 OF 2010 AND CIVIL APPLICATION NO.1052 OF 2010 IN WRIT PETITION NO.8986 OF 2009 Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions and Registrar’s orders Court’s or Judge’s orders CORAM : A.S.OKA, J. DATE : 15th April 2010 PC :- 1. Heard learned counsel for the applicants and learned counsel for respondents 4 to 7. In view of the averments made in the civil application, the same is allowed in terms of prayer clauses (a) to (c). Amendment to be carried out within four weeks from today. (A.S.OKA, J.)