1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.5616 OF 2007 Rajaram Shankar Bharati .. Petitioner Versus Parshuram Rajaram Bharati .. Respondent Mr.R.A.Thorat & Prabhanjan Gujar for petitioner Mr.G.S.Godbole with Nitin Mulye for respondent CORAM : S.C.DHARMADHIKARI, J. DATE : 18th January 2008 P.C. . This petition challenges an order passed by the Civil Judge, Senior Division, Satara dated 13th June 2007 rejecting an application (Exh.90). The application Exh.90 was preferred by the 2 petitioner original opponent Rajaram Shankar Bharati praying that the order of status quo be vacated. 2. It is the case of the petitioner that the respondent Parshuram Bharati has filed probate application for grant of probate in terms of the will of deceased Pushpamala. She is mother of Parshuram and wife of petitioner Rajaram. 3. Parshuram’s application for grant of status quo/temporary injunction was allowed and order of status quo has been passed. It is the case of the petitioner that on 13th July 1998, an amount of Rs.81,000/- was deposited in F.D.Account for three years in the joint name of petitioner and his wife Pushpamala. The F.D. is with State Bank of India. The F.D. has been renewed from time to time. Deceased Pushpamala expired on 3rd November 2004. The F.D. is in the name of former or survivor. After the 3 maturity it was necessary that the amount is handed over to the petitioner by the State Bank. However, in the light of the order of status quo passed, the petitioner cannot withdraw or claim the said amount. 4. The application was opposed by Mr.Parshuram. It is his case that until the probate is decided, no orders be passed on the application to vacate the stay as that would prejudice the case of said Parshuram. This application was heard along with another application Exh.93 and by a common order, the application preferred by the petitioner (Exh.90) has been rejected. 5. Mr.Thorat learned Counsel appearing for petitioner submits that in the light of the clear assertion in the application and the relevant documents evidencing the fact that the deposit is in the name of former or survivor, then, the 4 amount having been invested jointly by himself and his wife, Pushpamala, the order ought to have been passed permitting the petitioner to utilise the same. He submits that appropriate conditions could have been imposed by the trial court but rejecting the application outright has prejudiced him enormously. 6. Mr.Mulye appearing for respondent has supported the impugned order. In his submission, considering the bitter relations between the parties and the fight/dispute over the will of the deceased, this is a fit case where the order of status quo should be continued and at the most hearing of probate application be expedited. 7. The matter was heard yesterday and to enable the parties to take instructions, it was placed today. Mr.Thorat after taking instructions makes a statement that the petitioner is agreeable to abide by such 5 conditions as may be imposed by this Court but the order be modified and/or vacated. Mr.Mulye points out that in case the amount is allowed to be withdrawn at this stage and utilised by the petitioner, it would prejudice the son, inasmuch as during the lifetime of Pushpamala she had also objected to the amount being handed over to the petitioner exclusively. 8. In the impugned order at para 6 the learned Judge has observed that the dispute is between the father and son. However, the learned Judge observed that it is undisputed that the name of the present petitioner appears insofar as the amounts are concerned. However, he has claimed share in the amount of P.F., Pension and Medical Reimbursement which is with State Bank and he will suffer irreparable loss if the amounts are allowed to be withdrawn. 9. The undisputed position appears to be 6 that the amount was invested by the said deceased and the petitioner in their joint names. The petitioner is joint holder of the F.D. and is not the nominee. It is clear from the impugned order that the learned Judge has not adverted to this fact, although, the Bank appeared and filed an affidavit. There is a clear observation by the learned Judge that the Bank has appeared and produced the relevant documents. I have perused a copy of the affidavit filed by the Bank. Its annexure "C" at page 42-45 of the petition paperbook. The Bank has clearly stated that the F.D.Receipt bearing No.364449 is a joint receipt in the name of Pushpamala and Petitioner Rajaram. The receipt is dated 12th July 1998 and is still in force, inasmuch as, it has been renewed. The details of the renewals are set out in the affidavit. The endorsement on the receipt is former and survivor. It has also adverted to the prevailing policies of handing over the monies to the survivor. In such circumstances, the bank 7 pointed out that it will be obliged to hand over the monies to Rarajam. The said Rajaram was about to complete the formalities for withdrawal of money at which time the order of status quo came to be served on the bank. The bank has not made any grievance and has not opposed the application. On the other hand, it has been pointed out that as on 1st August 2005 a sum of Rs.1,69,433.06 is lying to the credit of the said F.D. account. 10. In the above facts and circumstances, this application could have been allowed by the trial court by imposing appropriate conditions. To my mind, merely because the petitioner is allowed to take away the sums by imposing conditions does not mean that any adjudication has been done in the pending probate application. That application must be decided de hors any observations and prima facie findings in the impugned order. In such circumstances, 8 application Exh.90 is allowed. The impugned order stands quashed and set aside to that extent. The Bank is directed to deposit the sum lying in its F.D. within a period of four weeks from the date of receipt of this order. Upon the amount being deposited in the trial court, the petitioner is allowed to withdraw the same subject to furnishing security to the satisfaction of the trial court. Writ petition is allowed in the above terms. No costs. 11. In the peculiar facts of this case and considering that the petitioner is over 65 years of age hearing of probate application No.2 of 2005 is expedited and the trial court to endeavour and dispose of the same by 31st December 2008. 9 (S.C.Dharmadhikari, J)