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
- Hindu Succession Act — s. 15
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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