Laljibhai Velabhai vs Jayantilal Laxmanbhai Khunt

Gujarat High Court

Laljibhai Velabhai vs Jayantilal Laxmanbhai Khunt on 1 October, 2025

                                                                                                             NEUTRAL CITATION




                            C/CRA/184/2021                                  JUDGMENT DATED: 01/10/2025

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                                     IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
                                       R/CIVIL REVISION APPLICATION NO. 184 of 2021


                       FOR APPROVAL AND SIGNATURE:


                       HONOURABLE MR.JUSTICE SANJEEV J.THAKER
                        ================================================================
                                    Approved for Reporting                  Yes           No
                                                                                          No
                       ================================================================
                                                  LALJIBHAI VELABHAI & ANR.
                                                            Versus
                                             JAYANTILAL LAXMANBHAI KHUNT & ORS.
                       ================================================================
                       Appearance:
                       VMP LEGAL(7210) for the Applicant(s) No. 1,2
                       MR. MR BUKHARI(6919) for the Opponent(s) No. 1,2,3,4
                       ================================================================
                          CORAM:HONOURABLE MR.JUSTICE SANJEEV J.THAKER

                                                        Date : 01/10/2025
                                                        ORAL JUDGMENT

1. The present Revision Application has been filed challenging the judgment and order dated 26.04.2021, passed below Exhibit-80, by 11th Additional District and Sessions Judge, Rajkot, whereby the Appellate Court partly allowed Civil Misc. Appeal No.92 of 2007, filed by the defendant, and the judgment and decree, passed by the Senior Civil Judge, Rajkot, in Civil Misc. Application No.41 of 1983, has been quashed and set aside and the matter is remanded to the trial Court to decide the same afresh.

2. For the sake of brevity the parties are refered to as per their original status as that in the proceeding before the trial Court.

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3. The brief facts arising in the present Revision Application are that the applicants filed probate application for obtaining probate with respect to the will of Velabhai Bhadabhai which was executed on 15.04.1978. A public notice was issued with respect to the said probate application, the respondent had appeared in the said probate application and filed objections. It was the case of the applicant that the will executed by Velabhai Bhadabhai was a registered will and duly attested by the witness. The witness of the said will was examined vide Exhibit-38. The trial Court framed issues vide Exhibit-80 as under:-

1. Whether the appellate proves that the Order passed in C.M.A. 41/1983 by the Ld. Principal Sr. Civil Judge, Rajkot, on 01/10/2007, Dismissing the Application of the Plaintiff is perverse, illegal and unjust and requires to be set aside?

2. What order?

4. After considering the oral evidence and documentary evidence and giving findings on all the issues the trial Court came to a conclusion that deceased Velabhai Bhadabhai, had expired on 01.10.1982 and that the applicant No.1 & 2 are, son and daughter-in-law of deceased Velabhai Bhadabhai, the trial Page 2 of 8 Uploaded by MANOJ KR. RAI(HC01072) on Wed Oct 01 2025 Downloaded on : Wed Oct 01 22:55:20 IST 2025 NEUTRAL CITATION C/CRA/184/2021 JUDGMENT DATED: 01/10/2025 undefined Court also held that the deceased Velabhai Bhadabhai had executed a will on 15.04.1978, but in view of the fact that the respondent herein, i.e. original respondent, in Civil Misc. Application No.41 of 1993, had filed Regular Civil Suit No.814 of 1996, with respect to the fact that the properties in dispute, were HUF properties and that the plaintiff and defendant No.3 of Civil Suit No.814 of 1996 proved that there was no partition of the properties that belongs to Velabhai Bhadabhai.

5. The said suit filed by the plaintiff was ultimately dismissed and the probate application filed by the applicant was rejected in view of the fact that Civil Suit No.814 of 1996, was pending before the trial Court, whereby the probate application has been challenged by the applicant by filing of Civil Misc. Appeal No.92 of 2007 and in view of the fact that at the time when the appeal challenging the order passed in Civil Misc. Application No.41 of 1983, was heard with Civil Suit No.814 of 1996, where the dispute was whether the properties that belongs to Velabhai Bhadabhai, were his self acquired property or of property that belonged to Hindu Undivided Family, and therefore, the said matter was remanded back to the trial Court with a direction to decide the matter afresh and said decision is challenged by way of present Civil Revision Application.

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6. Learned advocate for the applicant has argued that if the order passed by the trial Court is taken into consideration, the trial Court while deciding the Civil Misc. Application No.41 of 1983, i.e. application for probate, has held that the applicant has proved the will executed by the deceased Velabhai Bhadabhai and the fact that while deciding Civil Suit No.814 of 1996, the trial Court has dismissed the said suit whereby in Civil Suit No.814 of 1996, it has been confirmed, that the properties that are subject matter of the probate, were self acquired properties of Velabhai Bhadabhai and the appeal to the said judgment and decree passed in Civil Suit No.814 of 1996 i.e. First Appeal No.69 of 2012, having also been dismissed. The said issue has already been decided and confirmed by the appellate Court that the properties that belongs to Velabhai Bhadabhai are self acquired properties, and therefore, there was no question for the appellate Court to remand the said matter in view of the same, the present Revision Application is required to be allowed.

7. Per contra, learned advocate for the respondent has stated that the respondent had challenged the judgment and decree passed in First Appeal No.69 of 2012 and Civil Suit No.814 of 1996, by way of filing Second Appeal. Moreover, if the probate application is taken into consideration the first appellate Court has rightly remanded the matter to the trial Court in view of the Page 4 of 8 Uploaded by MANOJ KR. RAI(HC01072) on Wed Oct 01 2025 Downloaded on : Wed Oct 01 22:55:20 IST 2025 NEUTRAL CITATION C/CRA/184/2021 JUDGMENT DATED: 01/10/2025 undefined fact that all throughout the applicants have tried to canvass their argument and claimed right on the properties that belongs to Velabhai Bhadabhai and the fact remains that though the applicant is claiming probate with respect to the property of Velabhai Bhadabhai but all throughout in the application, i t has been stated that the said properties belongs to Bhadabhai, therefore also the order passed by first appellate Court remanding the matter to be decided afresh is not required to be interfered, and therefore, the Revision Application is required to be rejected.

8. Having heard learned advocate for the parties and having considered the application, the fact remains that the applicant has filed Civil Misc. Application No.41 of 1983, for seeking probate of the will executed on 15.04.1978, for claiming probate of the will, registered on 15.04.1978, of Patel Velabhai Bhadabhai, who expired on 01.10.1982 and the trial Court has held that the will executed by Velabhai Bhadabhai has been proved by the applicant and the said order has become final, in view of the fact that the said findings of the trial Court, whereby the trial Court has held that deceased Velabhai Bhadabhai had executed a will on 15.04.1978, has not been challenged by the opponent, the only dispute that the respondent has taken is that the properties which have been mentioned in the probate application do not belong to Velabhai Bhadabhai and the same Page 5 of 8 Uploaded by MANOJ KR. RAI(HC01072) on Wed Oct 01 2025 Downloaded on : Wed Oct 01 22:55:20 IST 2025 NEUTRAL CITATION C/CRA/184/2021 JUDGMENT DATED: 01/10/2025 undefined belongs to Bhadabhai, therefore, the probate application could not be granted by this Court.

9. If the proceedings of Civil Suit No.814 of 1996 are taken into consideration, which are filed by the opponent, the fact remains that the opponent has not been able to prove that the suit property was not exclusively self acquired property of Velabhai Bhadabhai. The fact remains that while deciding the probate application, the Court will have to consider the fact that the will that was executed by Velabhai Bhadabahi was genuine will and that whether the applicant is entitled for the probate. The only objection that the opponent has raised is with respect to the properties that are stated in the said probate application, the fact remains that a probate can be granted with respect to the will executed by the deceased, subject to all the rights which are to be decided, with respect to the suit property. While deciding the probate application the Court does not decide the rights of the parties with respect to the properties of the deceased, the probate court's jurisdiction is limited to determine the genuineness and due execution of a will, not the title or ownership of the property itself and any dispute over the right to property is a separate matter for a civil court to decide.

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10. In the present case, as the trial Court has already decided that the will of Velabhai Bhadabhai dated 15.04.1978, has been proved by the applicant, the question of whether the properties stated in the probate application belonged to the applicant or the opponent or whether they belonged to Velabhai Bhadabhai can always be subject matter of other proceedings. In the present case, the said proceedings had already been decided by way of judgment and decree in Civil Suit No.814 of 1996 which has been confirmed in First Appeal No.69 of 2012.

11. In view of the said fact, the first appellate Court could not have remanded the matter to the trial Court to decide the same afresh, the fact remains that the First Appeal No.69 of 2012 and Civil Misc. Appeal No.92 of 2007, have been decided on the same date, therefore, while passing an order in First Appeal No.92 of 2007, the first appellate Court was very much aware that all the rights of the opponent with respect to the claim that the properties do not belong to Velabhai Bhadabhai, have already been adjudicated in the suit of the opponent which was dismissed. In view of the same, the first appellate Court could not have remanded the matter to the trial Court to decide the same afresh in view of the fact that all the dispute have been adjudicated.

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12. In view of the same, the present Civil Revision Application is allowed. The judgment and decree of the first appellate Court are quashed and set aside. The petitioner herein is hereby granted the probate of the registered will dated 15.04.1978, subject to the rights of the parties with respect to the properties of Velabhai Bhadabhai to be decided by Civil Court. This Court has taken into consideration only the registered will and the fact that the said will of Velabhai Bhadabhai, dated 15.04.1978, has been executed by deceased Velabhai Bhadabhai. In view of the same, present Civil Revision Application is allowed. Rule is made absolute. No order as to costs.

(SANJEEV J.THAKER,J) Manoj Kumar Rai Page 8 of 8 Uploaded by MANOJ KR. RAI(HC01072) on Wed Oct 01 2025 Downloaded on : Wed Oct 01 22:55:20 IST 2025