{1} CA 4742 OF 2020 & ANR

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD

11 CIVIL APPLICATION NO.4742 OF 2020

IN SA/306/2006

WITH CA/3164/2021 IN CA/4742/2020

BEGUMBEE ABDUL GAFOOR DIED THRO. LRS MOHAMAD AND

ORS.

VERSUS

ABDUL RAHIM ABDUL KARIM AND ORS

...

Advocate for Applicants : Mr.Kiran M. Nagarkar

Advocate for Respondent No.2/1 to 2/6 in CA/3164/2021 :

Mr.Mujtaba Gulam Mustafa

…

CORAM : M.G.SEWLIKAR, J.

DATE: 1^st April, 2021

PER COURT:-

1.

Heard.

2.

Mr.K.M.Nagarkar, learned counsel for the applicants

submits that delay of almost seven years is committed in

preferring these applications for bringing legal heirs on record.

According to him, original plaintif – Begum Bee W/o.Abdul Gafoor

died on 29-11-2013. The legal heirs of the said Begum Bee have

filed applications for bringing legal heirs on record as they weere

not aweare of pendency of the Second Appeal. Some of the

proposed legal heirs are also senior citizens. On account of their

health issues and that they weere not even aweare of the name of

{2} CA 4742 OF 2020 & ANR

Advocate, they could not prefer application for bringing legal

heirs on record. It is alleged in the applications that they have

made sufcient cause for condonation of delay and for bringing

legal heirs on record.

3.

Mr.Mujtaba Mustafa, learned counsel for respondent No. 2/1

to 2/6 argued that the appeal weas presented through Poweer of

Attorney, weho died in the year 2011 and original plaintif died in

the year 2013. Except the bare statements of the applicants,

there is nothing on record to showe that they had no knoweledge of

pendency of the Second Appeal. On the contrary, the record

showes that they weere very much aweare of the pendency of the

Second Appeal. Learned counsel for respondent No.2/1 to 2/6

submits that applications deserve to be rejected in their entirety.

He submits that, if the Court comes to the conclusion that delay

deserves to be condoned, applicant No.1/1 cannot be impleaded

as he is son and he is excluded from succeeding to the property

of the deceased. He placed reliance on Section 69 of the

Mohammedan Lawe. He, therefore, prayed for rejection of the

applications in their entirety.

4.

On perusal of the applications, it seems that applicant

Nos.1/2, 1/4 and 1/5 are senior citizens. Applicant 1/3 is 53 years

{3} CA 4742 OF 2020 & ANR

old. Therefore, having regard to the age, it can be said that the

applicants have made out a sufcient cause for condonation of

delay. So far as applicant No.1/1 is concerned, at this stage, it is

difcult to state that he is excluded from succeeding to the

property of deceased plaintif. The argument, wehich learned

counsel for respondent Nos.2/1 to 2/6 has advanced, can be

advanced at the stage of final argument and if he is found dis-

entitled, the appeal weill be dismissed as against applicant No.1-1.

5.

In this viewe of the matter, I am inclined to allowe the

applications. Hence, the applications are alloweed. Legal heirs be

brought on record. Leave to amend is granted. Amendment be

made on or before 22-04-2021.

( M.G.SEWLIKAR )

JUDGE

SPT