1 wp6620-10 jpc IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL WRIT PETITION NO.6620 OF 2010 Amar Vijaysinnh Renanavare .. Petitioner Versus Prataprao Shankarrao Rananavare (Since deceased through- Smita P. Prataprao Rananaware) and others ... Respondents Mr. S. G. Deshmukh i/by Mr. Manish Jain for the petitioner Mr. N.V. Bandiwadekar for respondent no.1 CORAM : R. Y. GANOO, J. DATED : 27th September, 2011 P.C. 1. Rule. Rule made returnable forthwith. Learned Advocate Mr. Bandiwadekar waives service of notice on behalf of respondent no.1, who is contesting respondent. By consent, the petition is taken for hearing. 2. Respondent no.1 filed a Suit in the Court of learned Civil Judge, Senior Division, Gadhinglaj being Special Civil Suit No.22 of 1997 for partition against one Balasaheb Shankarrao Rananavare including the present petitioner. By the orders passed earlier, the petitioner, in his 2 wp6620-10 capacity as defendant no.4, has not been able to file written statement. According to the petitioner, after the death of Balasaheb, the property could be enjoyed by one Suvarnamala and after the death of Suvarnamala, the said property is devolved on the present petitioner on account of the Will purported to be executed by Balasaheb, original defendant no.1. The present petitioner filed application Exh.232 before the learned Trial judge seeking permission to join him as an heir of the original defendant no.1- Balasaheb. That application was rejected on 19/1/2009. Thereafter, fresh application has been filed by the petitioner at Exh.242 for the same relief. This application is rejected by the learned Civil Judge, Senior Division, Gadhinglaj by order dated 13th October, 2009. Against these orders, the present petition is filed. 3. I have heard learned advocates on both the sides. 4. The petitioner claims to be a heir of Balasaheb on the basis of will and on that ground the petitioner is claiming right in respect of the property which is the subject matter of the aforesaid Special Civil Suit. The question whether the petitioner is a heir of Balasaheb will also fall for determination in the trial. The learned Judge has rejected the said application. In my view, it was necessary for the learned Judge to allow the petitioner to be joined as party defendant by relying on the text of the 3 wp6620-10 Will as it is, so that the petitioner, at the time of trial, would prove that he is heir of Balasaheb on the strength of the Will. Once the petitioner is permitted to join as heir of Balasaheb subject to proving the Will of Balasaheb, the petitioner should get a chance to file written statement, which would have been done by Balasaheb, if he would have been alive. In view of above discussion, the petitioner can be joined as party defendant. 5. Hence, the application at Exh.242 can be granted. The petitioner would be able to file the written statement after such joining, to raise the contentions, which Balasaheb would have raised, if he would been alive. As the petitioner is being joined not in his personal capacity, but on account of his claim that he has succeeded to the estate of Balasaheb, the cross examination which the petitioner will be conducting would be also restricted from that angle. The trial Court shall make a note of this observation. 6. For the reasons mentioned aforesaid, following order is passed to dispose of the present petition. i. The order dated 31st October, 2009 passed below Exh.242 in Special Civil Suit No. 22 of 1997, by the learned Civil Judge, Senior Division, Gadhinglaj is set aside. Consequently, the order dated 19th January, 2009 passed below Exh.232 is set 4 wp6620-10 aside. Application at Exh.242 is granted subject to clarification made in the order. ii. There shall be no order as to costs. iii. It is made clear that this court has not gone into the merits of the claim of the petitioner that the Will purported to be executed by Balasaheb in his is favour is genuine or not. All questions are kept open. iv. Looking to the fact that the Suit is of 1994, I hope, the learned senior Judge, Senior Division, Gadhinglaj shall take steps to dispose of the aforesaid Suit as early as possible. He accordingly shall give top priority to this suit. (R. Y. GANOO, J.)