DESAI RANJANA, J.

( 1 ) RULE. By consent of the parties taken up for hearing forthwith.

( 2 ) RESPONDENT 1 filed R. C. S. No. 7/94 in the Court of C. J. J. D. Ajra against one ramchandra Undage original defendant 1, kondubai Undage, original defendant 2, vishnu Undage original defendant 3, and the petitioner herein for partition and separate possession of his share claiming that the suit properties are ancestral properties and he has one fourth share therein. For the sake of convenience parties are referred to in this judgment as per their status in the trial Court.

( 3 ) AT the trial defendant 3 remained absent. The suit proceeded ex parte against him. Defendants 1 and 2 filed their written statement. It appears that during the pendency of the suit defendant 2 died and in her place defendants 2 (1) and 2 (2) were brought on record.

( 4 ) ON 29-4-2000 the suit was partly decreed. It was declared that the plaintiff, defendant 1, defendant 3 are having 6/20th share each and defendant 2 (1) and 2 (2) are having 1/20th share each in the suit properties. It was directed that partition of landed properties be effected by metes and bounds through the Collector of the district as per section 54 of the Civil Procedure Code. Preliminary decree was ordered to be drawn accordingly.

( 5 ) THEREAFTER defendant 1 Ramchandra undage died on 2-10-2000. It is the case of the petitioner/defendant 3 that deceased ramchandra had executed a registered Will dated 16-8-96 under which he had bequeathed his share to him. The petitioner/ defendant 3, therefore, made application exh-1 in Regular Darkhast No. 80/02 inter alia praying that he may be allotted share of the deceased father in pursuance of the registered Will dated 2-10-00 executed by his father. The executing Court held that there is no compliance of section 213 of the indian Succession Act, 1925, which requires that no right can be established in any Court of justice unless a Court of competent jurisdiction grants probate of the will under which the right is claimed. Since there is no probate the petitioner cannot claim under the Will. The Court also held that legality of the Will cannot be decided under Section 47 of the Code of Civil procedure. The executing Court, therefore, rejected the petitioners application and hence this writ petition.

( 6 ) I have heard the learned Counsel for the petitioner/defendant 3. I have heard the learned Counsel for respondent 1-plaintiff.

( 7 ) MR. Lagu appearing for the petitioner contended that the executing Court erred in rejecting his application. He submitted that the Will was executed in Kolhapur in respect of property which does not fall in the limits of area covered by the Ordinary original Jurisdiction of this Court and therefore, it is not covered by Section 213 of the Indian Succession Act, 1925. Hence there was no question of obtaining any probate for the said Will. He submitted that the executing Court also misconstrued and misinterpreted the provisions of Section 47 of the Code of Civil Procedure.

( 8 ) IN support of his submission, the learned Counsel relied on (Kantabai Mahipal sonavane v. Nimba Onkar Patil), 2000 (1) bom. C. R. 417, (Bhagwanji Karsanbhai rathod v. Surajmal Anandraj Mehta), 2003 (5) Bom. C. R. 228 and (Prabhakar Chinappa Chavan v. State of Maharashtra), 2004 (Supp. 2) Bom. C. R. 737.

( 9 ) I have also heard the learned Counsel for respondent 1 at great length.

( 10 ) IN my opinion, the executing Court erred in holding that the present Will is covered by Section 213 of the Indian succession Act. Section 213 of the Indian Succession Act so far as it is relevant for the present case reads as under:"section 213. Right as executor or legatee when established.- (1) No right as executor or legatee can be established in any court of Justice, unless a Court of competent jurisdiction in (India) has granted probate of the Will under which the right is claimed, or has granted letters of administration with the Will or with a copy