1 FARAD CONTINUATION SHEET No. IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR Writ Petition No. 1495/2008 (Girdhari Pahalomal Bhojwani VERSUS Vimladevi Ashok Kumar Isharka) - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -- Office Notes, Office Memoranda of Coram, Court's or Judge's orders appearances, Court's orders of directions and Registrar's orders - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -- Mr. I.S. Charlewar, counsel for the petitioner. CORAM : SMT. VASANTI A. NAIK, J. DATE : APRIL 16, 2008. Heard. By this petition, the petitioner impugns the order passed by the Joint Civil Judge (Junior Division), Gondia on 01.11.2007 in Regular Darkhast No.22/1989, whereby the objection of the petitioner at Exh.78 was rejected with costs of Rs.100/-. According to the petitioner, one Kashibai had instituted Regular Civil Suit No.139/1989 against the petitioner and others. The suit was decreed on 27.01.1986 and the petitioner and the other defendants were directed to handover the possession of the suit property to Kashibai and also pay the mesne profits to the decree holder. The possession of the suit property was delivered to Kashibai some time in the year 1990. The Regular Darkhast bearing no.22/1989 was filed by Kashibai for recovery of the amount of Rupees 3,06,603.05/- which was 2 payable towards damages by the petitioner and the other defendants. During the pendency of the Regular Darkhast No.22/1989, Kashibai died. It is the case of the petitioner that Kashibai was issue less and her husband had predeceased her, and therefore, she had not left behind her, any Class-I heir enumerated in the schedule to the Hindu Succession Act, 1956. After the death of Kashibai, the respondent had filed an application Exh.69 for addition of her name as legal representative of Kashibai on the basis of a will which was allegedly executed by Kashibai on 06.03.1999. The factum of execution of two wills dated 15.09.1989 and 06.03.1999 was disputed by the petitioner and the petitioner raised an objection before the executing Court in that regard. The respondent was permitted to prove the will by tendering evidence in the execution proceedings. The petitioner objected to the same on the ground that there may be some agnates and cognates or other Class-II heirs of Kashibai and even if there were none, the State was a necessary party while considering the question as to whether the respondents had succeeded to the property in pursuance of the alleged will executed by Kashibai. It was submitted on behalf of the petitioner before the 3 Executing Court that the respondent ought to have obtained a probate of the will. The objection, however, came to be overruled by the learned Joint Civil Judge (Junior Division) by the impugned order dated 01.11.2007. Shri Charlewar, the learned counsel for the petitioner, submitted that the executing Court was not justified in rejecting the objection raised by the petitioner as the respondent was liable to prove the will by filing independent civil proceedings and by joining the other legal heirs of deceased Kashibai. The counsel for the petitioner then relied on the provisions of Order 22 Rule 12 of the Code of Civil Procedure to point out that the provisions of Order 22 of the Code of Civil Procedure did not apply to execution proceedings. The counsel also relied on a decision of the Hon'ble Supreme Court which is reported in AIR 1996 SC 1807 to substantiate his submission. I have perused the objection raised by the petitioner before the executing Court and the order passed by the Joint Civil Judge (Junior Division) on 01.11.2007. It is necessary to note that the petitioner had himself submitted before the executing Court and it is also the case of the petitioner that Kashibai was issue less and the husband of Kashibai had predeceased her. 4 The executing Court rightly considered the fact that the application was filed by the respondent to permit her to prosecute the execution proceedings as a legal representative of deceased Kashibai as a legal representative is a person who in law represents the estate of the deceased person. Since the executing Court desired to verify the claim of the respondent to entitle her to represent the claim of deceased Kashibai in the executing proceedings, the respondent was called upon to adduce evidence in that regard. The executing Court rightly considered that the probate was not necessary in view of Section 57 of the Hindu Succession Act and in view of the law laid down in the decision reported in 2004(1) Mh.L.J. 62. It is also necessary to note that the petitioner did not claim to be related to deceased Kashibai and did not claim to be her legal representative as he was merely the tenant of the property disputing the claim of the respondent. In the facts and circumstances of the case, the impugned order cannot be said to be unjust. The decision reported in AIR 1996 SC 1807 is inapplicable to the case in hand. 5 For the reasons aforesaid, the writ petition is dismissed with no order as to costs. JUDGE APTE