Lalgar Alias Lalo Narayan Goswami vs Nareshbhai Govindbhai Modi & 11 Other(S)

Sonia Gokani, J

The very petitioner had preferred Special Civil Application No. 17268 of 2016 where this Court (Coram: S.H.Vora, J.) on 18.10.2016 passed the

following order:

[1] By way of present petition filed under Article 227 of the Constitution of India, the petitioner has made prayer to issue a writ, order or direction to

the learned Civil Judge (S.D.), Surat for early disposal of Probate Application No.43 of 2006.

[2] Having heard the submissions made at bar, it appears that Probate Application No. 43 of 2006 is uncontested and it is yet not heard and disposed

of till date and it would meet the end of justice, if the learned trial Judge may be directed to expedite the hearing of Probate Application No.43 of 2006

within stipulated period of time.

[3] In view of the above, the learned trial Judge is hereby directed to expedite the hearing of Probate Application No.43 of 2006 as expeditiously as

possible but not later than three months from the date of receipt of copy of this order. It is clarified that this Court has not examined merits of the

probate application in question and therefore, the learned trial Judge shall decide the same in accordance with evidence and law as may be applicable

to the proceedings in question.

[4] With this observation and direction, present petition stands disposed of. Direct service is permitted.â€​

This Court (Coram: R.M. Chhaya, J. ) on 12.07.2017 passed the following order:-

“Heard Mr. Nirav Sanghavi,learned advocate for the petitioner. By an order dated 18.10.2016 passed by this Court (Coram: Mr. S.H. Vora, J.) in

Special Civil Application no.17268 of 2016, the directions are already given.

It will be open for the petitioner to approach the lower Court with a similar directionn. The petition is therefore not entertained. Accordingly, the

petition is disposed of as withdrawn.â€​

Mr.Panchal, learned advocate appearing for the petitioner and Mr.Dave, learned advocate appearing for the respondent have been heard.

He has also shared with the Court the status of NJDG, which says that next date of hearing is on 31.07.2021 before the Court of learned Principal

Senior Civil Judge. Strangely, the stage of the case is evidence of the applicant and it mentioned the stay of the High Court. There is a need to refer to

the order passed by this Court on 13.10.2014 being Special Civil Application No. 3835 of 2013, which is as under:-

“Heard Ms.S.K.Vishen, learned advocate for the petitioner and Mr.S.P.Majmudar, learned advocate for respondent No.1. It is submitted by

learned advocate for the petitioner that the impugned order dated 18.02.2013, joining respondent No.1 as party opponent to the probate proceedings, is

unsustainable in law as respondent No.1 is the second purchaser of the property that is the subjectmatter of probate. The sale was made during the

pendency of the probate proceedings.

It is submitted that respondent No.1 is a stranger to the probate proceedings and had no connection with the Will of the testator. Learned advocate for

the petitioner has placed reliance upon a judgment of the Supreme Court in Sunil Gupta v. Kiran Girhotra And Others â€" (2007)8 SCC 506, wherein

the Supreme Court has held as below:

“13. A transferee of a property during the pendency of a proceeding is not a necessary party. Citations are necessary to be made to only those

who, inter alia, claim through or under the will or deny or dispute the execution thereof.†On the other hand, learned advocate for respondent No.1

submitted that the said respondent is a necessary party as a judgment in probate proceedings would operate in rem and would affect the rights of

respondent No.1. It is further submitted that respondent No.1 has disputed the genuineness of the ust and proper. Though notices have been issued to

all the respondents, respondents Nos.2 to 6 have not put in an appearance before the Court. Having heard learned counsel for the respective parties

and in view of the submissions advanced at the Bar and the judgment of the Supreme Court in Sunil Gupta v. Kiran Girhotra And Others (supra), this

Court is of the view that the petitioner has made out a good prima- facie case for admission of the petition and confirmation of the ad- interim relief.

Hence, the following order: Issue Rule. The adinterim relief, granted earlier, is confirmed and shall operate as interim relief till t he final decision of the

petition.â€​

Registry may call for the report from learned Principal District Judge as to why the directions issued by this Court have not been complied with. Let

the report reach this Court without fail on or before 09.07.2021.

Let this matter also appear on board on 09.07.2021.