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Judgment
Shri A.H. Joshi
This appeal from order is arising out of final order passed on application Exh.D-30 seeking removal of Smt. Shakuntala R. Paingankar (then alive) from her status as head of family and Exh. D-32 for injunction. The application was allowed and in her place present respondent no.1 Shri Rohit R. Paingankar was appointed as Head of family.
During pendency of this appeal, the appellant no.1, Smt. Shakuntala R. Paingankar, who was removed, from the position of Head of the family died on 27.12.2007.
Appellant no. 2 to 6 are continuing with this appeal and are pursuing the challenge to removal of Smt. Shakuntala, as well as challenge to the appointment of Shri Rohit R. Paingankar.
Heard learned Advocates at length and perused the records, as produced with appeal from order.
It is not in dispute that:
a) The Head of family was being removed for act of selling movable property.
b) Head of family had opposed the grounds of removal pleading that she had power to sell the property .
c) Prayer for appointment of Shri Rohit as Head of family was opposed by raising factual and legal grounds of objections.
d) In reply to application for her removal as well as reply to application of Shri Rohit R. Paingankar for his appointment as Head of family Smt. Shakuntala had offered to lead evidence.
e) Case was heard only on oral submissions before the parties could be permitted to lead oral evidence and rebuttal thereof if any.
In the admitted background, that the Head of family was not given opportunity to lead evidence on both applications, this Court had indicated to the parties that the case is made out by the appellant for remand upon setting aside impugned order, with direction to hear and decide the case expeditiously
Both learned Advocates do not dispute that if this court records reasons and refers to rival contentions, some observations on facts and law may follow, and such observations are likely to influence the prospects of the parties as to merit of the case.
In the aforesaid background, both learned Advocates agree that recording reasons for remand can be dispenses with, and be dispensed with.
Hence there shall be following order in Appeal from Order No.58/2007:
a) Impugned order dated 30.04.2007 passed below Exh.30-D and Exh.32-D is hereby set aside, and case is remanded for hearing and disposal of these applications.
b) Due to the fact of death of Smt. Shakuntala, parties are free to apply for appropriate amendment in pleadings if they are so advised.
c) Parties agree that they shall appear before trial Court on 20.08.2009 and are directed to do so.
d) If any one or more amongst appellants apply for appointment of Head of family, such application be decided along with respondent no.1''s application for appointment as Head of family.
e) In order to take care of properties of the family, the appointment of the respondent no.1 as Head of family shall continue only for a period of six months from today, or on ad-hoc basis until trial court continues his appointment if hearing and disposal before trial courtis delayed.
f) The applications for appointment and also Exh.30-D for limited purpose as to whether Smt. Shakuntala Paingankar was liable to be removed for her acts narrated in the application be decided expeditiously and as nearly as possible within six months from 20.08.2009.
g) All questions arising between the parties are kept open.
h) Parties are directed to bear their own costs.