.. 1 .. IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER STAMP NO. 9067 OF 2009 WITH CIVIL APPLICATION STAMP NO. 9068 OF 2009 Malji Ravji Vaijal .... Appellant V/s. Smt. Tulsibai claiming to be Wd/o Shankar Warli @ Vaijal & Ors. .... Respondents Mr. N.V. Walawalkar, Senior Counsel i/b Mr. S.A. Sawant for the appellant. Mr. P.K. Dhakepalkar, Senior Counsel i/b Mr. Abhay L. Patki for the respondent nos. 1 to 6. CORAM : R.V. MORE, J. DATED : 4TH MAY 2009. P.C. Heard Mr. Walawalkar and Mr. Dhakephalkar, learned senior counsel for the respective parties. 2. The appellant is the original defendant and respondents are original plaintiffs. One Shankar was the owner of the suit property. The appellant is nephew of the said Shankar. The respondent no. 1 & 2 to 5 claims to be wife and children respectively of deceased Shankar. Shakar died intestate. The appellant thereafter filed Testamentary Petition no. 509 of 2004 in this Court and obtained letters of administration. The respondents, after getting knowledge about these letters of administration, filed Misc. Petition no. 50 of 2008 for revocation of the letters of administration. The said Misc. Petition was disposed of with liberty to respondents to file suit for appropriate relief. In exercise of this liberty, respondents filed S.C. No. 679 of 2009 for declaration as to relationship with deceased Shakhar. In this suit, Notice of Motion No. 161 of 2009 was filed by the respondents for interim stay SKT/- .. 2 .. to the effect and mutation of the order of grant/letters of administration in favour of appellant. 4. The Learned Judge of the City Civil Court by the impugned order in the appeal restrained appellant from exercising rights in pursuant of letters of administration dated 18th January 2006 in Testamentary Petition No. 509 of 2004 in respect of the suit property till final disposal of the suit. 5. Mr. Walawalkar, learned senior counsel for the appellant submitted that there are several circumstances on record which falsify the claim of the respondent no. 1 that she is wife of deceased Shankar. He has submitted that respondent no. 1 supressed some relevant documents. He also submitted that the allegation of the respondents that the letters of administration obtained by fraud will have to be proved by adducing evidence in trial. In this circumstances, the interim relief could not have been granted in favour of the respondents. Mr. Dhaphalkar, learned senior for the respondents on the contrary supported the impugned order and submitted that in order to protect the interest of the respondents, the learned Trial Judge has rightly passed the impugned order. 6. Having heard learned senior counsel for the respective parties and having gone through the impugned order alongwith the documents relied upon by the respective parties, I do not find merits in the Appeal from Order. The appellant in the proceedings before Tahasildar admitted that respondent no. 1 is the second wife of deceased Shankar. The learned Trial Judge in paragraph no. 10 of the impugned order considered documents like ration card, mutation entries in respect of some of the suit property in names of which respondent no. 1 and respondent nos. 2 to 5 are recorded. Thus, there is sufficient evidence on record to come to prima facie conclusion that the respondent no. 1 was the wife and other respondents are their children. If interim relief is refused to the repondents in that case, the appellant will dispose of the suit property thereby causing great prejudice to the SKT/- .. 3 .. respondents. On the contrary no prejudice will be caused to the appellant by the impugned order in as much as he is already in possession of the suit property. The respondent’s allegation that the appellant obtained letters of administration by practicing fraud and appellant’s contention that respondent no. 1 is not wife of the deceased Shankar will have to be decided on the basis of evidence in trial. However, in my opinion, the respondents have proved prima facie case. The balance of confidence also lies in favour of the repsondents. I, therefore, do not find any error in the impugned order. Appeal from Order is accordingly disposed of. 7. Needless to mention that the observations hereinabove are prima facie observations and the Trial Court shall dispose of the suit expeditiously without being influenced by this order as well as observations made in the impugned order. 8. Mr. Walawalkar, learned senior counsel for the appellant, at this stage, makes request for continuation of the ad-interim order passed in the above Appeal from Order for a reasonable period. The request is opposed by Mr. Dhaphalkar, learned senior counsel for the respondents. 9. By the interim order, ad-interim stay was granted to the impugned order and if this order is continued, the appellant will try to dispose of the suit property, which will defeat the rights of the respondents and therefore, I am not inclined to continue the ad-interim order. 10. In view of disposal of the appeal, the Civil Application does not survive and the same is also disposed of. (R.V. MORE, J.) SKT/-