1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR Civil Revision Application No.34 of 2010 (Dinesh s/o Babulal Sharma v. Ratnaprabha Shivlal Jaiswal and others) ---------------------------------------------------------------------------------------------------- Office Notes, Memoranda of Coram, appearances, Court's orders or directions Court's or Judge's orders and Registrar's order Shri M.I. Dhatrak, Advocate for Applicant. Shri V.M. Deshpande, Advocate for R- 2 to 5 and 7. Coram : K.U. Chandiwal, J. Dated : 21 st June, 2010 1. Heard. 2. The order below Exhibits 1, 73 and 74 in Special Civil Suit No.194 of 2000 passed by the learned Civil Judge, Senior Division, Amravati, is challenged by the aggrieved plaintiff. 3. The order demonstrates that when called repeatedly, both the parties and their Advocates did not appear and no say was filed by the defendants. The learned Trial Judge, on perusing the record, passed the order. The learned Trial Judge found that the suit was 2 filed for specific performance of contract to sale the suit premises, of which the defendants are the owners. In the written statement, the defendants stated that the plaintiff was the tenant concerning the suit premises. The will deed concerning disputed property, by the plaintiff in favour of the applicant was dated 8-11-2001 – a registered document. It was during the pendency of the proceedings. However, I do not see that if during the pendency of the proceedings any bequeath is effected, it will not have its legal effect. The agreement between the plaintiff and defendants did not restrict to plaintiff, prohibiting assignment of his interest. 4. At this stage, passing of the title or no sale in terms of Section 54 of the Transfer of Property Act would not be a predominant factor to adjudicate upon. It may be, the applicant's entitlement to stake to refund of earnest may evolve. He is presently a representative in interest. 5. The learned Trial Judge shall independently deal with the validity and legality of the will and entitlement of the applicant to prosecute the matter, more particularly in the light of Section 15 and the relevant provisions of the Specific Relief Act. For the present, the order below Exhibits 1, 73 and 74 is not sustainable. The same is, therefore, set aside. The observations made in this 3 order are prima facie in nature. 6. The civil revision application is allowed in above terms. No costs. (K.U. Chandiwal), Judge. pdl.