VENKAT, RAJANNA DARBHE Vs. LAXMANRAO RAJANNA DARBHE

JUDGEMENT

(1.) Both Writ Petitions are filed by original defendants in two different civil suits instituted by present Respondent No. 3 for possession of property on the ground that his father Rajanna has left "will" dated 28/2/1980 bequeathing the same in his favour. Both Petitioners are real brothers of Respondent No. 3. Petitioners filed applications at exhibit 44 in Regular Civil Suit no. 814/1994 (Laxmanrao vs. Venkat) and at exhibit 56 in the regular Civil Suit No. 3340/2001 (Laxmanrao vs. Madhukar) raising preliminary objection that unless and until Will was probated, Civil Suits were not maintainable. By common order dated 28/3/2003, 8th Joint Civil Judge, Junior Division, Nagpur, has rejected that contention and applications filed by Petitioners in these Suits. This common order has been challenged in these 2 writ Petitions on the ground that provisions of Section 57 (a) and (b) of Indian Succession Act, 1925, violate Article 14 and 19 of the Constitution of India with prayer to hold that Probate is required for every Will as per Section 213 (1) thereof.

(2.) It is admitted position that as this Court did not grant any interim relief to Petitioners, both Civil Suits have been decreed in favour of Respondent No. 3 and Regular Civil Appeals filed by respective Petitioners are pending. It is further stated by respondent No. 3 that he has received vacant possession from petitioner Madhukar in W. P. No. 2356/2003 and hence said Writ petition has become infructuous. Learned Counsel for said petitioner has however stated that he has no instructions from said Petitioner and has no objection if said writ petition is disposed of as infructuous after recording said statement of respondent No. 3.

(3.) We have heard Advocate B. N. Mohta for the petitioners, Advocate Sundaram for Union Of India and for attorney General of India, and Advocate N. A. Vyawahare for respondent No. 3. Advocate B. N. Mohta for the Petitioners had stated that notice was not issued to Attorney General of India. Accordingly, we issued notice at the time of hearing to Attorney general of India and upon request Advocate Sundaram appearing for Union Of India has waived the service and appeared for attorney General of India also.