1 pps IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO.323 OF 2009 Mr.P.Laxminarayan Shriniwasan Kudva ..Appellant versus Smt. Vinodini Kamath & Others ..Respondents Mr.Hemant Ghadigaonkar for the appellant Mr.Prakash Mulky i/b. Gopal Poojary for the respondent No.2 CORAM : R.Y.GANOO, J. DATE : 6th JULY, 2009. P.C: 1. The appellant herein instituted suit in the City Civil Court at Bombay being Suit No.4642 of 2002 for a prayer that defendant No.1 i.e. Vinodini D. Kamath should be directed to disclose the particulars of estate left by said P. Ramchandra Kudwa since deceased. He also filed a suit to seek a direction against the defendant NO.1 to pay to the appellant 1/7 th share of the estate of deceased. He also sought an order to have 1/7 th 2 share in the policies which were standing in the name of the deceased. He also sought order of injunction restraining defendant No.1 from utilizing the amounts of the said deceased. He also sought an injunction against the insurance company from disbursing the amount in favour of the defendant No.1. 2. Learned Judge of the City Civil Court, conducted the trial and by judgment and decree dated 9.1.2009 dismissed the suit. 3. Against the said judgment and decree this first appeal is filed. It is to be noted that the appellant admits that the deceased died leaving behind him his mother, namely Mrs. Shambhavi Kudwa, defendant NO.3. The learned Judge has observed that in the plaint there is no specific reference as to by which law the said deceased was governed. However the present appellant had to admit before the learned trial Judge that the appellant is governed by Hindu Succession Act. 3 4. The learned trial Judge, thereafter proceeded to observe that the mother of the deceased i.e. Shambhavi is the heir of the deceased in accordance with the provisions of Hindu Succession Act and that the present appellant is not the heir in accordance with the provisions of Hindu Succession Act. 5. Eventually, he observed that the appellant could not succeed to the estate of the deceased. The learned Judge declined the claim of the appellant on the ground that if he is not the heir of the deceased he cannot get reliefs sought in the suit and that the suit itself is not maintainable. 6. Considering the frame of the suit it is clear that the suit filed by the appellant for diverse reliefs mentioned aforesaid was in the nature of suit of administration of estate of the accused and for seeking specific share from and of the estate of the deceased. 4 7. Before this Court, learned Advocate Mr. Ghadigaonkar tried to say that the suit was filed by him on account of specific averments in the suit and he had right to succeed to the estate of the deceased. Learned Advocate Mr. Ghadigaonkar relied upon number of judgments so as to say who can institute suit for administering of estate of deceased. A reading of these judgments would clearly go to show that the creditor of the deceased or heir would go to administer the estate of the deceased. In the present case it is not the case of the appellant that he was creditor of the deceased. The appellant also could not prove before the learned trial Judge that he was a heir in accordance with the provisions of law. If this be so, the claim of the appellant that the appellant was entitled to succeed to the estate of deceased and to have 1/7 th share is not correct and that the learned Judge declined to grant relief by observing that the suit is not maintainable. 5 8. After having heard arguments on behalf of the appellant, I am inclined to observe that even before this Court the appellant could not show that on the date of institution of the suit i.e. in the year 2002 he was a heir of the deceased. If this be so, his claim to a particular share as set out in the plaint cannot be accepted. The learned trial judge rightly dismissed the suit. Hence no interference is required in the impugned judgment and decree. 9. It is required to be mentioned that there is no material to come to the conclusion that institution of the suit was bonafide. In the peculiar facts and circumstances, I am inclined to saddle the appellant with costs of this appeal and accordingly I am inclined to direct that the appellant should pay the sum of Rs.2000/- to the Respondent No.2. Hence the Order. ORDER First Appeal is dismissed. The appellant to 6 pay to the respondent No.2 costs of Rs.2000/- (Rupees Two Thousand Only). Payment of cost is condition precedent for future proceedings, if any instituted by the appellant. After the aforesaid order is passed, learned Advocate for the appellant in fairness pointed out to the Court that present respondent No.1 has deposited sum of Rs.1,37, 308/- and the sum of Rs. 12,829/- in the City Civil Court at Bombay, pursuant to some orders which were passed in the aforesaid suit. Now, that the appeal has been dismissed, the Registrar, City Civil Court, Bombay shall refund the said amount to respondent No.1 who was the original defendant NO.1. If the said amount is already invested, the Registrar, of the City Civil Court, Bombay shall arrange to redeem the said fixed deposit receipt and proceeds thereof shall be paid to the present respondent NO.1 along with interest if it has accrued. This Order shall be acted upon by the Registrar, City Civil Court, Bombay within a period of two weeks 7 from the date when authenticated copy of this order is produced before the Registrar of the City Civil Court. (R.Y.Ganoo, J.)