Shirishkumar Devchand Kapadia vs Pradeep J Nabar

Gujarat High Court

Shirishkumar Devchand Kapadia vs Pradeep J Nabar on 25 June, 2025

                                                                                                             NEUTRAL CITATION




                             C/FA/4493/2008                                JUDGMENT DATED: 25/06/2025

                                                                                                             undefined




                               IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                                              R/FIRST APPEAL NO. 4493 of 2008


                       FOR APPROVAL AND SIGNATURE:


                       HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK

                       =======================================
                              Approved for Reporting          Yes       No
                                                              Yes        -
                       =======================================
                                    SHIRISHKUMAR DEVCHAND KAPADIA
                                                   Versus
                                             PRADEEP J NABAR
                       =======================================
                       Appearance:
                       MS KJ BRAHMBHATT(202) for the Appellant(s) No. 1
                       MS VARSHA BRAHMBHATT(3145) for the Appellant(s) No. 1
                       RULE SERVED for the Defendant(s) No. 1
                       =======================================

                         CORAM:HONOURABLE MR. JUSTICE HEMANT M.
                               PRACHCHHAK

                                                       Date : 25/06/2025

                                                       ORAL JUDGMENT

1. Present appeal is filed by the appellant - original applicant under Section 276 of the Indian Succession Act, 1925 (hereinafter be referred to as "the Act") challenging the impugned judgment and order dated 08.01.2008 passed by the learned Principal Senior Civil Judge, Surat (hereinafter be Page 1 of 17 Uploaded by V.R. PANCHAL(HC00171) on Thu Jun 26 2025 Downloaded on : Thu Jun 26 23:56:10 IST 2025 NEUTRAL CITATION C/FA/4493/2008 JUDGMENT DATED: 25/06/2025 undefined referred to as "the trial Court") in Probation Application No. 75 of 2006 whereby the trial Court has rejected the application filed by the appellant.

2. Brief facts of the present case are that the appellant has filed probate application before the trial Court to obtain probate in respect of the last will and testament dated 24.03.2003 executed by one Dr. Jashwantlal Nanchand Shah in vernacular Gujarati language and registered in the office of Sub Registrar at Mumbai vide registration No. 2946/2003 on 29.03.2003. That Dr.Jashwantlal was the maternal uncle of the appellant who died on 27.05.2003 at Surat and his wife Ansuyaben died on 11.04.1997 at Surat. Out of the wedlock, they have no any child and they died without any child and there are sixteen legal heirs and nearest relatives mentioned in the last will and testament dated 24.03.2003. According to the appellant, Dr.Jashwantlal was serving in Municipal Corporation at Mumbai and he executed said will and testament, which was registered before the Sub Registrar at Mumbai. The appellant is the beneficiary as per the said will and testament of deceased and, therefore, he had filed the probate application to obtain the probate in respect of the property. According to the appellant, the deceased submitted an application to the Post Master, Haji Ali Post Office at Mumbai in respect of withdrawal of the amount from SB account under the signature of one Pradeep. J. Nabar, respondent herein and the deceased was expecting early payment from such account. The deceased inquired from the said Post Office through Shri S. S. Page 2 of 17 Uploaded by V.R. PANCHAL(HC00171) on Thu Jun 26 2025 Downloaded on : Thu Jun 26 23:56:10 IST 2025 NEUTRAL CITATION C/FA/4493/2008 JUDGMENT DATED: 25/06/2025 undefined Sanzagiri, who in turn informed that the cheque will be drawn after 02.06.2003 and Shri Sanzagiri was informed by the appellant that Dr.Shah died on 27.05.2003 and therefore, Shri Sanzagiri wrote a letter addressed to the appellant stating that Dr. Shah was no more, therefore, there was no reason in taking cheque from Post Office in the name of Dr. Shah and under the circumstances, the Post Office was informed to cancel the withdrawal slip and to return the pass-book. According to the appellant, Shri Sanzagiri wrote a letter to the appellant requesting him to send copy of death certificate. It transpires from the said letter that he informed the respondent to contact him as and when he came to Mumbai and he shall tell him to contact the appellant. Thereafter, Shri Sanzagiri informed the appellant that the said accounts were transferred in favour of the respondent and the cheque for Rs.6,25,000/- was drawn by the postal authority keeping the balance of Rs.35,972/-. Shri Sanzagiri informed regarding the cheque but the respondent was not willing to deposit the said cheque and even the respondent was not ready to co-operate to transfer the said amount in favour of the appellant, who is the only beneficiary under the last will of Dr. Shah. That the appellant addressed a letter to the postal authority, Mumbai to make payment from the said SB A/c. No. 4211821 of Dr. J.N. Shah to the appellant. The letter written by Shri Sanzagiri to the appellant was verified by the postal authority of Surat, putting the endorsement checked and verified by the Public Relation Officer, Head Office. The appellant requested the respondent to cooperate and to see that the Page 3 of 17 Uploaded by V.R. PANCHAL(HC00171) on Thu Jun 26 2025 Downloaded on : Thu Jun 26 23:56:10 IST 2025 NEUTRAL CITATION C/FA/4493/2008 JUDGMENT DATED: 25/06/2025 undefined amount would be received by the appellant as he is the only beneficiary under the last will of Dr. Shah. The total amount of Rs. 6,67,517/- lying in the Post Office SB A/c. No.4211821 issued by the Post Master, Haji Ali Branch Mumbai. Further, some amount of time deposit accounts were also lying in the said post office. Thus, the appellant is entitled to receive the aforesaid amount from the Post Office Haji Ali, as he is only the beneficiary under the last will of Dr. Shah. Hence, the appellant has filed the probate application to get probate to the last will and testament dated 24.03.2003 duly registered on 29.03.2003 in the Office of Sub-Registrar Mumbai executed by Dr. Jashwantlal Nanchand Shah in favour of the appellant. After hearing the respective parties and considering the evidence on record, the trial Court has rejected the application filed by the appellant.

3. Being aggrieved and dissatisfied with the impugned judgment and order passed by the trial Court, the appellant has preferred the present appeal.

4. Head Ms.K. J. Brahmbhatt, learned counsel appearing for the appellant. Though served, the respondent has chosen not to appear before the Court.

5. Ms.Brahmbhatt, learned counsel appearing for the appellant has submitted the same facts which are narrated in the memo of appeal and has also submitted that the impugned judgment and order passed by the trial Court is illegal, unjust Page 4 of 17 Uploaded by V.R. PANCHAL(HC00171) on Thu Jun 26 2025 Downloaded on : Thu Jun 26 23:56:10 IST 2025 NEUTRAL CITATION C/FA/4493/2008 JUDGMENT DATED: 25/06/2025 undefined and contrary to the facts and law. She has submitted that the deceased Dr.Jaswantlal, originally resident of Mumbai, was residing with his nephew at Surat and deceased had sold his property at Mumbai and come to reside permanently at Surat prior to his death. She has submitted that the beneficiary of the will being resident of Surat, the trial Court has jurisdiction to decide such issue. Ms.Brahmbhatt, learned counsel has submitted that the trial Court has committed an error in not appreciating the fact that the deceased testator and his wife had no any child and the appellant being the only beneficiary under the last will of the testator. She has submitted that the trial Court has not considered the fact that the respondent in his letter had clearly stated that he has not interested in the property and he has not raised any objection to the claim of the appellant. She has submitted that the trial Court has not considered the document at Exhibit 72 wherein the testator and the respondent both have signed the letter stating that they were shifting their residence out of Maharashtra and requested for premature withdrawal of the amount. She has submitted that the trial Court ought to have considered the letter at Exhibit 76 wherein the testator has stated having shifted his residential accommodation to Surat at his nephew's house. She has submitted that as per Section 272 (2) of the Act, the testator had permanently shifted to Surat before his death and had no residence at Mumbai. She has submitted that when the respondent does not have any objection in claiming the amount under the will then the same would have to be allowed rather than rejecting the claim on the Page 5 of 17 Uploaded by V.R. PANCHAL(HC00171) on Thu Jun 26 2025 Downloaded on : Thu Jun 26 23:56:10 IST 2025 NEUTRAL CITATION C/FA/4493/2008 JUDGMENT DATED: 25/06/2025 undefined ground of jurisdiction. According to Ms.Brahmbhatt, learned counsel, the appellant being the beneficiary of the will and he is residing at Surat and the testator having shifted permanently to Surat, it cannot be said that the trial Court at Surat has no jurisdiction. She has also submitted that the trial Court has committed an error in coming to the conclusion that since, the amount as claimed is lying at Mumbai, the trial Court at Surat has no jurisdiction to decide the application and, therefore, the question of granting the probate in the name of appellant does not arise. She has further submitted that trial Court has not considered the provision of Section 371 of the Act and the fact that the testator having shifted permanently at Surat and, therefore, the trial Court, Surat had jurisdiction to decide the probate application.

5.1 In support of her submissions, Ms.Brahmbhatt, learned counsel has relied upon the decision of the Hon'ble Supreme Court in the case of Smt. Raj Rani Wd/o. Late Raizada Bansi Lal Vs. Raizada Mool Raj and others reported in AIR 1962 Punjab 62 and the decision of the Madras High Court in the case of Mohanlal Futnani @ Mohanlal D. Futnani and another Vs. Vishanji D. Futnani reported in 1991 (3) Current Civil Cases 239.

5.2 Ms.Brahmbhatt, learned counsel has urged to allow the present appeal and to quash and set aside the impugned judgment and order passed by the trial Court.

NEUTRAL CITATION C/FA/4493/2008 JUDGMENT DATED: 25/06/2025 undefined

6. Having considered the material on record and the facts of the case and gone through the impugned judgment and order passed by the trial Court, it transpires that the appellant has filed probate application under Section 276 of the Act for probate in respect of the last will and testament dated 24.03.2003 executed by one Dr. Jashwantlal Nanchand Shah in vernacular Gujarati language and registered in the office of Sub Registrar at Mumbai vide registration No. 2946/2003 on 29.03.2003. Though the appellant has shown the details of the legal heirs of near relatives since the deceased was died without any legal heirs and wife of the deceased was passed away prior to his death and since the appellant is the nephew of the deceased has filed the application where he has shown all sixteen near relatives of deceased Dr.Jaswantlal. Out of sixteen relatives, only one respondent at Sr.No.15 Pradeep. J. Nabar has filed objection in the application, however, he has not objected the application so far as the entitlement of the appellant is concerned and if the amount is withdrawn by the appellant which is kept in the fixed deposit at Haji Ali Post Office at Mumbai in respect of the withdrawal of the amount shown in para - 4, the description of which is as under:-

Account No. Date of Deposit Amount of Deposit 8880346 09-01-1998 36000 8880347 09-01-1998 36000 8880595 16-08-1999 48000 8880596 16-08-1999 48000 8880705 04-05-2000 36000 8880706 04-05-2000 30000 Page 7 of 17 Uploaded by V.R. PANCHAL(HC00171) on Thu Jun 26 2025 Downloaded on : Thu Jun 26 23:56:10 IST 2025 NEUTRAL CITATION C/FA/4493/2008 JUDGMENT DATED: 25/06/2025 undefined 8880756 19-08-2000 276000 8880777 27-10-2000 90000 Total 600000 6.1 The deceased Dr.Jaswantlal was expecting early payment from the said fixed deposit, the total of which was that relevant point of time was Rs.6,00,000/-. Before actual realization of the said fixed deposit, Dr.Jaswantlal was passed away and, therefore, the appellant has moved an application before the concerned trial Court on the ground that after death of the wife, Dr.Jaswantlal was staying at the address mentioned in the details. Though nobody objected the application, the trial Court has rejected the same on the ground as stated in para - 12 that the application for probate filed by the appellant whereby probate was asked for movable property i.e. fixed deposit lying in Haji Ali Post Office at Mumbai and, therefore, the trial Court has no jurisdiction and the application was rejected. In fact, it is misconception or incorrect interpretation of Section 276(2) of the Act by the trial Court and the same in the opinion of this Court is absolute incorrect and misinterpretation on the part of the trial Court. On the contrary Section 276(2) of the Act is very clear which reads as under:-

"276. Petition for probate.--(1) Application for probate or for letters of administration, with the will annexed, shall be made by a petition distinctly written in English or in the language in ordinary use in proceedings before the Court in which the application is made, with the will or, in the cases mentioned in sections 237, 238 and 239, a copy, draft, or statement of the contents thereof, annexed, and stating--

NEUTRAL CITATION C/FA/4493/2008 JUDGMENT DATED: 25/06/2025 undefined

(a) the time of the testator's death,

(b) that the writing annexed is his last will and testament,

(c) that it was duly executed,

(d) the amount of assets which are likely to come to the petitioner's hands, and

(e) when the application is for probate, that the petitioner is the executor named in the will.

(2) In addition to these particulars, the petition shall further state,--

(a) when the application is to the District Judge, that the deceased at the time of his death had a fixed place of abode, or had some property, situate within the jurisdiction of the Judge; and

(b) when the application is to a District Delegate, that the deceased at the time of his death had a fixed place of abode within the jurisdiction of such Delegate."

6.2 It is abundantly clear that the application can be filed at the place where testator was lastly resided. It is specific case of the appellant that the deceased Dr.Jaswantlal was lastly resided at Surat. The trial Court has completely ignored such fact merely on a ground that since the property is lying in the different State, therefore, the application is not maintainable, which is absolutely incorrect. Even the respondent who has objected the application, despite of the fact that his objection was also recorded by the trial Court. The trial Court has also committed serious error of facts and law in interpreting and analyzing the documents at Exhibit 72, 73, 74 and 75 as discussed in para - 10 where it has been observed that in the said documents, the fact was mentioned that the deceased was shifted to Surat and he was died at Surat and his death certificate of Surat came on record. Even a letter at Exhibit 76 written by the testator to the Branch Page 9 of 17 Uploaded by V.R. PANCHAL(HC00171) on Thu Jun 26 2025 Downloaded on : Thu Jun 26 23:56:10 IST 2025 NEUTRAL CITATION C/FA/4493/2008 JUDGMENT DATED: 25/06/2025 undefined Manager, State Bank of India, Mumbai dated 21.05.2003 in which the address of the testator was mentioned at Surat. From the documents / correspondences at Exhibit 81 to 85 and 88 to Pradipbhai and application at Exhibit 89 made by the testator to the Post Master, Haji Ali Post Office, Mumbai wherein the address was mentioned of Surat. So, all this documentary evidence were produced on record which suggests that the deceased was lastly shifted to Surat and from where he has written all these documents. Certain movable property was also at Surat and immovable property was situated at Mumbai and only because of that, the trial Court has come to the conclusion that the Court, in which the application was filed, has no jurisdiction, is completely erroneous, illegal and unjust findings. The objector - Pradipbhai has filed an objection and the objectionable first part of the objection which has been mentioned by the trial Court in para - 12 which reads thus:-

"12. In Ex.47, Mr.Pradeep J. Nabar has stated in para - 4 that, ".....Dr. J. N. Shah had described him as an ordinary resident of Mumbai in the Will under reference. Further, had he been ordinarily residing in Surat. He would have been opened the accounts also with any Bank or Post Office at Surat. In fact Dr. J.N.Shah left Mumbai only in first week of May 2003 and passed away in Surat on 22-05- 2003. Except for the last few days of his life he had all along stayed in Mumbai. Besides this Will was also executed and registered in Mumbai. The petitioner is trying to misguide the court by stating that Dr.J. N. Shah was an ordinary resident of Surat. Therefore, the petitioner should have filed the petition for probating the Will before a Court jurisdiction in Mumbai."

NEUTRAL CITATION C/FA/4493/2008 JUDGMENT DATED: 25/06/2025 undefined Further, he stated in para 11 that:

"If the petitioner is legally entitled to get the amount lying in the erstwhile join account of Dr.J. n. Shah and this opponent, I have no objection in the petitioner claiming such amount from the postal authorities. However, if the Hon'ble Court finds that he is not entitled to claim such amount, the Court may be pleased to pass necessary order directing the postal authorities to hand over the said money to the legally entitled persons. Further the petitioner from harassing me unnecessarily."

i.e. This Pradeep J. Nabar has no interest in the property of the testator. But one fact is certain that, before few days of death, the testator came to Surat and then he died. When he came to Surat? That question is answered by the Will. The Will shows the date 24-03-2003, and then after, he came to Surat. Also, this fact is clear by pass-book of Bank of India joint account with applicant, which was opened on 10-04-2003 and produced vide Ex.71. One un-exhibited document is produced before this Court by applicant at mark 54/3, which shows that the testator has should his property of Mumbai on 23-04-2003 and then, he came to Surat."

6.3 On the basis of the same, the trial Court has come to the conclusion that the Court, in which the application was filed, has no jurisdiction, is completely erroneous and illegal.

6.4 Ms.Brahmbhatt, learned counsel has referred to and relied upon the decision of the Madras High Court in the case of Mohanlal Futnani @ Mohanlal D. Futanani and another Vs. Vishanji D. Futnani reported in (1991) 3 CCC 239 and has submitted that in view of the aforesaid decision, the trial Court ought to have granted probate as prayed for by the appellant as there was no objection on the part of any of the objectors and Page 11 of 17 Uploaded by V.R. PANCHAL(HC00171) on Thu Jun 26 2025 Downloaded on : Thu Jun 26 23:56:10 IST 2025 NEUTRAL CITATION C/FA/4493/2008 JUDGMENT DATED: 25/06/2025 undefined therefore the reasoning given by the trial Court is completely illegal and unjust. In fact, way back in the year 1980, in the case of Rukmani Devi Vs. Narendra Lal Gupta reported in AIR 1984 SC 1866, the Hon'ble Supreme Court has held and observed that the jurisdictional challenge regarding the grant of probate by one Court. Since the Court has rejected an application on a ground of valuable property situated in the jurisdiction. In the said decision, the Hon'ble Supreme Court has observed that the deceased had resided within the jurisdiction and last abode in the said jurisdiction, the jurisdiction to grant probate regardless of property location or value disputes raised post - facto. The relevant observation made in paras - 3 and 4 of the case of Rukmani (supra) are as under: -

"3. Mr. T. S. Krishnamoorthy Iyer, learned counsel, who appeared for the appellants contended that the learned 5th Additional Judicial Commissioner at Ranchi had no jurisdiction to entertain the petition for grant of probate. Developing this contention, he first pointed that Sec. 270 of the Indian Succession Act confers jurisdiction on the District Judge to grant probate upon a petition moved before him if at the time of his death, the testator had a fixed place of abode or any property, movable or immovable, within the jurisdiction of the court. He conceded that deceased Ram Dulari was staying at Mesra as found by the High Court for over 20 years. Therefore, Sec. 270 would be attracted and an application could be made to the court which granted the probate for admitting the will of the deceased to probate. He then referred to the proviso to Sec. 273 and urged that where the property of the deceased is situated in more than one State, the District Judge in whose jurisdiction the deceased had a fixed place of abode would be entitled to grant probate provided he certifies that the value of the property and estate affected beyond the limits of the State does not exceed Rupees 10,000. It was then pointed out that in this Page 12 of 17 Uploaded by V.R. PANCHAL(HC00171) on Thu Jun 26 2025 Downloaded on : Thu Jun 26 23:56:10 IST 2025 NEUTRAL CITATION C/FA/4493/2008 JUDGMENT DATED: 25/06/2025 undefined case the probate is granted by the court of Ranchi in the State of Bihar while the property in respect of which execution is taken out is situated at Katni in the State of Madhya Pradesh and its value exceeds Rupees 10,000/-- and therefore the Court of the 5th Additional Judicial Commissioner at Ranchi had no jurisdiction to grant the probate. It was urged that even if the appellants did not enter a caveat and did not contest the proceedings for grant of probate yet the same having been granted by a court having no jurisdiction, the grant would be invalid and would confer no title on the respondent. Proceeding along it was submitted that if the grant of probate is ab initio void it would be open to the appellants to contest the genuineness of the will when the same is set up in the execution proceedings.

4. There is no merit in either of the two submissions. Deceased Ram Dulari was staying with her son, the respondent at Mesra, a place within the jurisdiction of the court of the 5th Additional Judicial Commissioner for over 20 years before her death; and therefore the court had jurisdiction to entertain the application as provided by Sec. 270 of the Indian Succession Act. Now the question is whether the property situated at Katni exceeds Rupees 10,000/-- in value. The jurisdiction would depend upon the value of the property in a State other than the State in which the deceased died. If the jurisdiction depends upon a disputed question of fact such as value of the property, it was necessary for the appellants to enter caveat and contest the jurisdiction of the court urging that the Court had no jurisdiction because the grant would affect a property in another State exceeding Rupees 10,000/-- in value. That having not been done it is not open to the appellants to raise that controversy in the present proceedings. Once the grant is made, Sec. 273 provides that the grant shall have effect over all the property and estate, move-able or immovable of the deceased throughout the State and unless otherwise directed the grant has like effect throughout the other States provided the two contingencies set out in the proviso are satisfied. In this case, the court granting the probate was satisfied in the absence of contest that the value of the property effected by the grant and situated beyond the limits of the State does not exceed Rupees 10,000 in value. The point is therefore concluded against the appellants and they cannot be permitted to re-agitate the same."

NEUTRAL CITATION C/FA/4493/2008 JUDGMENT DATED: 25/06/2025 undefined

7. In another decision in the case of Nagraj Chhajer S/o. Budhmalji Chhajer Vs. State of Gujarat reported in 2011 (2) GLR 1350 this Court had an occasion to consider the said issue with regard to the territorial jurisdiction in case of application for probate. In this decision, this Court has held that the District Judge in whose territorial limits deceased resided permanently or the property in respect of which probate was sought has territorial jurisdiction to adjudicate such application. The relevant para - 4.3 of the said decision reads as under:-

"[4.3. About the territorial jurisdiction of the City Civil Court to decide said applications, Mr. Gandhi, Ld. Counsel drew my attention to Sec. 270 of the Act, wherein it has been provided that the District Court has territorial jurisdiction to hear and decide such application where deceased had a fixed place of abode or the place where the property is situated. Mr. Gandhi, therefore, submitted that in the instant case, both the deceased, namely Budhmalji and Bachhrajji had their permanent place of abode in Ahmedabad till they died and hence City Civil Court, Ahmedabad has territorial jurisdiction to hear and decide these applications by virtue of the provisions contained in Sec. 270 of the Act. Mr. Gandhi further submitted that considering proviso [b] of Sec. 273 of the Act, it is provided that in case, if the probate is granted by a District Judge, where the deceased at the time of his death had a fixed place of abode situate within the jurisdiction of such Judge, and such Judge certifies that the value of the property and estate affected beyond the limits of the State does not exceed ten thousand rupees, unless otherwise directed by the grant, the order passed by the District Judge shall have like effect throughout the other States. It is submitted that the Ld. City Civil Judge heavily relied upon these provisions and came to the conclusion that since the valuation of Bombay property is exceeding Rs.10,000/--, he has no territorial jurisdiction. It is submitted that the Ld. City Civil Judge erred in appreciating the provisions contained in Sec. 273 of the Act in isolation as he should have simultaneously considered the relevant provisions Page 14 of 17 Uploaded by V.R. PANCHAL(HC00171) on Thu Jun 26 2025 Downloaded on : Thu Jun 26 23:56:10 IST 2025 NEUTRAL CITATION C/FA/4493/2008 JUDGMENT DATED: 25/06/2025 undefined regarding powers of the District Judge contained in sub-sec. [3] of Sec. 283 of the Act, whereby it is provided that in case if any property is situated in another State, then the copy of the citation [the public notice] is required to be sent to such other District Judge within whose local limits the property is situated and such other District Judge shall publish the same in the same manner as if it were a citation issued by the first District Judge. It is, therefore, submitted that in the instant case, instead of dismissing the applications, the Ld. City Civil Judge should have followed the procedure as contemplated under sub-sec. [3] of Sec. 283 of the Act.]"

8. In one another decision in the case of Girirajsinhji S/o.Maharajkumar Shivrajsinhji Vs. State of Gujarat reported in 2014 (1) GLR 155, this Court has held and observed in para - 16 which reads as under:-

"16. The learned Additional Senior Civil Judge has observed in his order that some of the properties of the deceased are situated at Bombay and he has not passed order in respect of those properties. Learned advocate Mr. Gogia has drawn attention of the Court to the judgment of this Court in Nagraj Chhajer, S/o. Budhmalji Chhajer, 2011(2) GLR 1350. In that case, the Court, inter alia, considering Section 270 of the Indian Succession Act has held that the competent Courts which would have jurisdiction are either the District Court within whose local limits the permanent abode of the deceased was, or the Court within whose jurisdiction the property for which the probate is asked for is situated. Relying upon this decision, it was submitted by Mr. Gogia that the permanent abode of the deceased was Gondal. Therefore, the Court at Gondal would have jurisdiction to decide the application. It is immaterial that the property is situated within the Gujarat State or at Bombay. In view of the decision in the case of Nagraj Chhajer (supra), the aforesaid submission of the learned advocate Mr. Gogia is accepted."

9. The testator lastly resided at the place and having a Page 15 of 17 Uploaded by V.R. PANCHAL(HC00171) on Thu Jun 26 2025 Downloaded on : Thu Jun 26 23:56:10 IST 2025 NEUTRAL CITATION C/FA/4493/2008 JUDGMENT DATED: 25/06/2025 undefined permanent abode, the trial Court has jurisdiction to grant an application for probate. Under such circumstances and in view of the above referred decision, I am of the opinion that the trial Court has committed serious error of facts and law in interpreting Section 276(2) of the Act and, therefore, the impugned judgment and order of the trial Court deserves to be quashed and set aside.

10. It is to be noted that the probate application is for movable property situated at Mumbai and when all the letters exhibited by the trial Court, which shows that the letters were written from Surat by the testator, the findings arrived at by the trial Court in paras - 11 and 12 of the impugned judgment and order is unjust, illegal and erroneous and thus, the same deserves to be quashed and set aside. As the appellant has approached the concerned Court way back in 2006 by filing an application which was decided in 2008 and from 2008 the present first appeal is pending, therefore, it will not be proper to drive the appellant to another Court which would only delay and trial of the proceedings when there was no specific objection with regard to grant of probate in favour of the appellant. The genuineness of the will is also not under challenge and therefore merely upon the jurisdictional issue, the trial Court has rejected the application, which is erroneous, illegal and unjust. Now, considering the impugned judgment and order, I am of the opinion that the trial Court has committed an error of facts and law in rejecting the application and, therefore, the interference is Page 16 of 17 Uploaded by V.R. PANCHAL(HC00171) on Thu Jun 26 2025 Downloaded on : Thu Jun 26 23:56:10 IST 2025 NEUTRAL CITATION C/FA/4493/2008 JUDGMENT DATED: 25/06/2025 undefined required to be called for in the appeal.

11. In the result, the present appeal is allowed. The impugned judgment and order passed by the learned Principal Senior Civil Judge, Surat in Probate Application No. 75 of 2006 dated 08.01.2008 is hereby quashed and set aside. The trial Court is also directed to restore the application to its file and it is expected that the trial Court shall pass necessary order for issuance of probate in accordance with law and as expeditiously as possible. The trial Court is directed to issue a probate in respect of the last will and testator dated 24.03.2003 and in respect of description of the property mentioned in the application in favour of the present appellant. Direct service is permitted.

(HEMANT M. PRACHCHHAK,J) V.R. PANCHAL Page 17 of 17 Uploaded by V.R. PANCHAL(HC00171) on Thu Jun 26 2025 Downloaded on : Thu Jun 26 23:56:10 IST 2025