WP/8269/2010 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.8269 OF 2010 Suhas Mahadev Potdar ... Petitioner V/s. Vilas Mahadev Potdar & Ors. ... Respondents Mr. U.R. Mankapure for the Petitioner. Mr. A.A. Joshi for Respondent Nos.3 and 4. CORAM : B.R. GAVAI, J. DATE : 14 TH MARCH, 2011. P.C. : 1. By the present Petition, the petitioner challenges the order dated 18th August, 2010 passed by the learned Civil Judge, Junior Division, Atpadi, below Exhibit­82 in Regular Civil Suit No.14 of 2005, by which the application filed by Defendant No.4 for getting him transposed as Plaintiff in the Regular Civil Suit No.14 of 2005 came to be allowed. 2. A Suit came to be filed by the original Plaintiff namely Mahadev Maruti Potdar, wherein all his four sons were the Defendants. It was the contention of the original Plaintiff that the suit property was his self acquired property. It was his contention that all his sons, except Defendant No.1, had no opposition to this WP/8269/2010 2 position. The Defendant No.1 was refusing to accept that it was the self acquired property of the original Plaintiff and as such he filed a Suit for declaration that the suit property was a self acquired property and that it was nominally purchased in the name of Defendant No.4. The Suit was resisted by Defendant No.1 who is the petitioner herein. During the pendency of the Suit, the original Plaintiff died and as such an application came to be filed on behalf of Defendant No.4 for transposing him as Plaintiff on the ground that the deceased Plaintiff had bequeathed the properties to Defendant No.4 vide Will executed on 2nd September, 2005. The said application is allowed. Hence, the present Petition. 3. Mr. Mankapure, the learned Counsel appearing on behalf of the Petitioner, submits that all the four sons of the deceased Plaintiff had equal right in the properties of the deceased father and, therefore, the application which is allowed has been erroneously allowed. It is, therefore, submitted that the impugned order is not sustainable. 4. Mr. Joshi, the learned Counsel appearing on behalf of Respondent No.4, on the contrary submits that the learned trial Court has rightly allowed the application and as such no interference is warranted. WP/8269/2010 3 5. The learned trial Court on the basis of the judgement of this Court in the case of Jyoti W/o. Jagdish Singhal Vs. State of Maharashtra, reported in 1979 Mh.L.J. 308, and the judgment of the Supreme Court in the case of Clarence Pais and Ors. Vs. Union of India, reported in JT 2001(3) S.C. 82, has held that probate is not necessary if place where the Will is executed does not come within the original civil jurisdiction of Bombay High Court in view of Sections 57 and 213(1) and (2) of the Indian Succession Act. 6. No perversity is noticed in the approach adopted by the learned trial Court. In that view of the matter, no interference is warranted under the extra ordinary jurisdiction of this Court under Article 227 of the Constitution of India. 7. The Writ Petition is rejected. [B.R. GAVAI, J.]