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Shakuntalabai and Others V/S Premsingh Gangramsingh Bisen and Others.

    Writ Petition No. 1183 of 2014

    Decided On, 17 October 2016

    At, In the High Court of Bombay at Nagpur

    By, THE HONORABLE JUSTICE: R.K. DESHPANDE

    For Petitioner: A.V. Muley, Advocate And For Respondents: A.R. Deshpande, Advocate.



Judgment Text


1. Rule made returnable forthwith.

Heard the matter finally by consent of the learned counsels appearing for the parties.

The challenge in this petition is to the common order dated 12.11.2013 passed by the trial Court below Exh Nos. 66, 80 and 81. The trial Court has directed the plaintiff to evaluate the subject matter of the suit as per mark

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et value of the properties covered by Wills dated 07.07.1983 and 21.01.1985. It is further the order passed that the plaintiff to add all the legal heirs of Gangaramsingh Mulsingh Bisen and beneficiaries of the said disputed three Wills as party to the suit.

2. The suit in question claims a relief as under;

[1] Suit of the plaintiff may decreed and it may kindly be declared that the plaintiff are the lawful owners of the suit field by virtue of will deed Dt. 07.07.1983 and the alleged will deed Dt. 21.01.1985 may be declared as bogus, brought up, fraudulent and forge.

[2] Defendant may kindly be restrain from interfering the peaceful possession of the plaintiff and defendants may kindly be restrained from creating any third party interest in the suit fields in any mode or manner.

[3] Cost of the suit kindly be awarded as per the circumstances with any other relief, which the Hon'ble Court deems proper and appropriate"

3. It is not the suit claiming the possession of the properties, but a simplicitor suit claiming declaration along with prohibitory injunction restraining the defendants from interfering with the possession of the plaintiff over the suit property and creating any third party interest in it in any manner. Obviously, the suit is governed by Section 6(iv)(d) of the Maharashtra Court Fees Act. The suit is valued as a suit for declaration and accordingly the court fee has been paid. In the absence of any relief of possession being claimed, the trial Court was not justified in directing the petitioners to evaluate the suit as per the market value of the properties mentioned in the Wills.

4. Be that as it may, the suit property is described in paragraph 1 of the plaint and it was not necessary for the plaintiff to evaluate the suit and pay the Court fee in respect of the properties which are not the subject matter of the suit, though included in the Will dated 07.07.1983. It is urged that the plaintiff is claiming a declaration that the Will deed dated 21.01.1985 be declared as bogus. However, in respect of the properties covered by the said Will also, there is no decree for possession claimed. In view of this, the order passed by the trial Court directing the plaintiff to evaluate the suit as per the market value of the properties mentioned in both the Wills cannot be sustained.

5. It is not disputed that there was no application under Order I, Rule 10 of C.P.C. But, in spite of that, the Court has directed the plaintiff to add legal heirs of Gangaramsingh Mulsingh Bisen and beneficiaries of the disputed three Wills as party to the suit. Such question can be adjudicated either upon any such application being made or by framing an issue on the basis of such stand taken in the written statement. The said order also, therefore, cannot be sustained and it will have to be set aside. In the result, the writ petition is allowed. The order dated 12.11.2013 is hereby quashed and set aside. The Civil Applications at Exh. Nos. 66, 80 and 81 are all dismissed. So far as joinder or misjoinder of parties are concerned, the Court is at liberty to adjudicate such issue either on such application being made by any of the parties or by framing an issue in that regard.

Rule made absolute in above terms. No order as to cost.

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