Devashree Dhananjay Thite v. Amit Anant Thite & Anr.

Mr. Ashok B Tajane for the Petitioner CORAM : R M SAVANT, J. DATE : 30th November 2011 P.C. 1 The above Petition takes exception to the order dated 22/7/2011 passed by the learned 14th Joint Civil Judge, Junior Division, Pune by which order the objection as regards valuation of the suit has been rejected by the trial Court. 2 The dispute in question is as regards administration of the estate of one Narayan Laxman Thite. The said Narayan Laxman Thite had executed a will on 1/10/1979 in respect of the property bearing City Survey No.1187/35 situated at Shivajinagar Pune together with the two storied building standing thereon i.e. ground + first floor. The Defendant No.1 i.e. Purva Arun Prabhune was appointed as an executor of the will of the said Narayan Laxman Thite along with one Dattatraya Heramb Gorhe. The said Dattatraya Heramb Gorhe has already expired, and therefore the Defendant No.1 remained the sole executor.

The record discloses that the sole executor did not carry out her obligations by distributing the property in question as per the Will. The 2 wp-8586.11.sxw Plaintiff, who is the grand son of the said Narayan Laxman Thite, therefore has filed a suit being Regular Civil Suit No.786/2010 for administrating the said Will in respect of the above mentioned property. The Plaintiff was compelled to file the said suit on account of the default committed by the Defendant No.1 in administration of the Will pursuant to the death of the said Narayan Laxman Thite. 3 Reluctance of the Defendant No.2 is not far to seek, as it appears that a part of the property in question in terms of the Will is to go to the Plaintiff who is the grandson of the testator Narayan Thite. The Plaintiff has therefore filed the said suit. The main substantive relief is prayer clause (b). The prayers in the said suit are reproduced herein under :- (a) The defendant No.1 may kindly be directed to administer the said will of deceased Narayan dated 01.10.1979 under the decree of this Hon’ble Court.

(b) The defendant No.1 may kindly be further directed to ascertain the sahre of the plaintiff in the estate as per the said Will and after taking accounts, debts etc, a preliminary decree to that effect may kindly be passed. (d) The defendant No.1 may kindly be further directed to take accounts in respect of legacy or share that may be payable/deliverable to the plaintiff and be further directed by final decree to distribute the assets or estate as per said Will among heirs entitled thereto proportionately under the said Will” 4 The Defendant No.2 raised a preliminary objection as regards valuation by filing the Application-Exhibit 24 invoking Order 7 Rule 11(b) of the Code of Civil Procedure r/w Section 8 of the Bombay Court Fees Act, 1959 and prayed that Issue No.3 as regards valuation be decided as a preliminary 3 wp-8586.11.sxw issue. 5 The trial Court decided the said preliminary issue against the Defendant No.1 and rejected the said Application.

The trial Court considering the reliefs sought was of the view that the same were not capable of monetary valuation and would therefore be covered by Section 6(iv)(j) of the Bombay Court Fees Act, 1959. 6 In my view, the reasons of the trial Court in arriving at the said conclusion cannot be faulted with. Considering the reliefs sought and Section 6(iv)(j) of the Bombay Court Fees Act, the said Application filed by the Defendant No.2 seems to be an attempt to stall the beneficiary under the said Will to get his share, and therefore, the objection as regards valuation seems to have been raised. This cannot be countenanced in the writ jurisdiction of this Court under Article 227 of the Constitution of India. In that view of the matter, no case for interdiction is made out. The above Writ Petition is accordingly dismissed.

[R.M.SAVANT, J]