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Bombay High Court

SUNIL GORAKHNATH JAREversusSHAMRAO DAMODAR AAWTADE

Disposal
Allowed

Holding

The respondent is not a necessary and proper party; the order impleading him in the probate proceeding is set aside.

Summary

The petitioner, Sunil Gorakhnath Jare, is a legatee under a will executed by Shakuntala on 19 June 2018, which bequeaths him one‑quarter of her father’s ancestral property. The respondent, the husband of the deceased testator, filed an application to be impleaded in the probate proceeding (C.M.A. No.77 of 2021) seeking a claim over the subject matter. The petitioner challenged the order dated 18 November 2022 that allowed the respondent’s impleadment, arguing that the probate suit does not adjudicate substantive rights and that, under Section 15 of the Hindu Succession Act, the deceased was an absolute owner, leaving no independent right for her husband. The Court examined whether the respondent is a necessary and proper party to the probate proceeding and found no basis for his inclusion. Consequently, the Court allowed the writ petition, set aside the order impleading the respondent, and rejected the respondent’s application.

Issues considered

  • Whether the husband of a deceased testator is a necessary and proper party in a probate proceeding concerning the testator’s will.
  • Whether Section 15 of the Hindu Succession Act renders the deceased an absolute owner, precluding any independent right of the husband over the property.

Legislation cited

Subjects

  • probate
  • will
  • Hindu Succession Act
  • impleadment
  • legatee
  • civil procedure

Judgment

                                                                                   34-WP-950-2023=.doc



                                    IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                             CIRCUIT BENCH AT KOLHAPUR
                                            CIVIL APPELLATE JURISDICTION

                                              WRIT PETITION NO. 950 OF 2023

                       Sunil Gorakhnath Jare                                    … Petitioner
                                        Vs.
          Digitally
          signed by
UDAY
          UDAY
          SHIVAJI
                       Shamrao Damodar Aawtade                                  … Respondent
SHIVAJI   JAGTAP
JAGTAP    Date:
          2026.09.24                              ………….
          17:55:41
          +0530        Mr. Anant Vadgaonkar a/w Sagar P. Patil, Hrishikesh Khupsare for the
                       Petitioner
                                                  ………….
                                                        CORAM : SHAILESH P. BRAHME, J.

                                                        DATE        : 23rd SEPTEMBER, 2026.
                       P. C. :

                       .         Heard.

                       2.        None appears for the respondent despite service of notice

                       indicating final disposal of the matter.

                       3.        The petition takes exception to the order dated 18.11.2022 passed

                       below Exh.30 thereby impleading the respondent in a probate proceeding

                       being C.M.A. No.77 of 2021.

                       4.        The petitioner is a legatee under the Will executed by Shakuntala

                       on 19.06.2018 bequathing 1/4 of the share of her father’s ancestral

                       property. The respondent, who is the husband of the deceased testator

                       has come out with an application for impleadment seeking claim to the




                       Uday S. Jagtap                      1 of 2
                                                           34-WP-950-2023=.doc



subject matter.

5.       The probate proceedings are not the adjudication on substantive

rights and liabilities of the parties. Prima facie, a will has been executed

by deceased Shakuntala in favour of the petitioner bequathing only 1/4

share. By implication of Section 15 of the Hindu Succession Act, she can

be said to be absolute owner of the property in which her husband can

have no independent right.

6.       It is not demonstrated as to how the respondent is necessary and

proper party. The impugned order overlooks above aspect of the matter.

It is unsustainable.

7.       The Writ Petition is allowed in terms of prayer clause (a) and the

Application Exh.30 shall be rejected.



                                            ( SHAILESH P. BRAHME, J. )




Uday S. Jagtap                     2 of 2


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