Bombay High Court
Dilip Johnson Solomon Wilfred vs Madhukar Subhash Petkar on 4 April, 2016
Bench: A.B. Chaudhari
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
FIRST APPEAL NO.990/2010
Dilip Johnson s/o Soloman Wilfred,
aged about 61 years, Occ. Retired,
Plot No. 18, Raj Nagar, Katol Road,
Nagpur. .....APPELLANT
...V E R S U S...
1. Madhukar Subhash Petkar,
aged about 45 years, Occ. Service,
r/o Gopal Nagar, Nagpur (recorded address)
but actual address is Senior Technician,
W.C.L. Urjagram, Chandrapur.
2. Mrs. Vimla w/o Deopriyam Madhura,
aged about 58 years, Occ. Household,
r/o Plot No.18, Rja Nagar, Nagpur.
3. Vijay s/o Soloman Wilfred,
aged about 63 years, Occ. Retired,
r/o D/901, Rail Vihar, 9th Floor,
Sector 57, Sushant Log III,
Gurgaon, Haryana 122 003. ...RESPONDENTS
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Mr. Dilip Jonson, appellant-in-person.
Mr. Abbasi, Advocate for respondent no.1.
Mr. Raju Dhoble, Advocate for respondent no.2.
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CORAM:- A. B. CHAUDHARI, J.
Date of Reserving the Judgment:
01.04.2016
Date of Pronouncing the Judgment:04.04.2016
::: Uploaded on - 18/04/2016 ::: Downloaded on - 29/07/2016 20:55:46 :::
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J U D G M E N T
1. Being aggrieved by judgment and order dated
23.07.2010 in Probate Case No. 169/2005 passed by 3 rd Jt. Civil
Judge Junior Division, Nagpur, granting probate in favour of the
respondent-original applicant-Madhukar Subhash Petkar based on
Will dated 14.06.2004 as Executor, the present First Appeal has
been filed by the appellant-Dilip Johnson.
FACTS:
2. Late Mr. Soloman Andrew Wilfred, r/o Nagpur left
behind him two sons Dilip Johnson and Vijay Wilfred and one
daughter Mrs. Vimla w/o Deopriyam Madhura. According to the
respondent-Madhukar Petkar, who is a Hindu, the deceased
Soloman Andrew Wilfred appointed him as Executor of the
registered will which he made on 14.06.2004. There is only one
property namely; Plot No. 18 admeasuring 2700 Sq. ft. with a
house standing thereon at Raj Nagar, Mouza Jaripatka. It was a
self acquired property of the deceased Soloman, the testator.
During the lifetime of the deceased, he had filed Special Civil Suit
No.333/2004 for cancellation of the alleged gift deed dated
15.03.2004 as fraudulently obtained allegedly by Dilip Johnson.
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There is one more Special Civil Suit No.333/2004, which is also
pending. In his application, the applicant Madhukar alleged that
the will was executed in presence of the attesting witnesses
Prakash Badram Badole and Ku. Smriti Michael Thomas and was
then presented for registration before the Sub Registrar, Nagpur.
Under the will dated 14.06.2004, the testator-Solomon
bequeathed two rooms on ground floor to his grand children
Abhishek and Abha, son and daughter of his daughter Mrs. Vimla
and the open portion described in the will was to be used by all
the legatees. The applicant Madhukar stated that except for the
fact that he was appointed as Executor of the will, he was not
given any interest in any property of the deceased Soloman nor he
is claiming it. Soloman died on 04.01.2005 and that is why after
his death, the probate was sought by respondent no.1-Madhukar.
3. The learned trial Judge, thereafter, tried the application
since it was contested by the appellant and others. After recording
evidence, he held that the applicant was appointed as Executor of
the Will and was entitled to have a probate to represent in the
pending suits etc.
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SUBMISSIONS:
4. In support of the appeal, the appellant-Dilip Johnson
appeared in persona and argued his appeal. He submitted that the
Will was fraudulently obtained by the applicant-Madhukar and his
sister Mrs. Vimla when Soloman was not in sound physical and
mental condition. He then submitted that there are documents on
record including bed-head-ticket of the Government Medical
College, Nagpur relating to the month of December-2004 when
the deceased was admitted in the hospital in December-2004 as he
was not in a fit physical and mental condition. Referring to the
application Exh.87 filed by Soloman himself in the pending suit
and particularly paragraphs 2 and 3 thereof, the appellant
contended that Soloman had stated in his application about his
worsening health and unsound physical and mental condition.
The appellant then contended that apparently there is no reason
why Madhukar was chosen as Executor when he had no
relationship with the deceased Soloman nor there is any claim that
he was a man of confidence of the deceased Soloman. According
to him, there is no pleading in the application as to why Madhukar
was chosen as Executor in the absence of any relationship between
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the testator and the applicant-Madhukar. He then contended that
various suits are pending. He fairly invited my attention to the
order passed by this Court in the earlier proceedings in which it is
stated that in the suit, decree should be passed only after probate
is granted or produced before the Court dealing with the civil
suits. He, therefore, prayed for setting aside the impugned
judgment and order.
5.
Per contra, Mr. Abbasi and Mr. Dhoble, learned counsel
for respondent nos. 1 and 2 supported the impugned judgment
and order and submitted that the deceased was of sound health,
mentally as well as physically and had appointed Madhukar as
Executor of the will. The interest of the applicant-Madhukar is
nothing beyond acting as Executor under the will. In fairness,
counsel for the respondents stated that since the property under
the will stand bequeathed in favour of the grandchildren or rather
son and daughter of Mrs. Vimla, the interest of applicant
Madhukar as well as Mrs. Vimla is only to protect the said claim.
Mr. Abbasi, learned counsel for respondent no.1, cited two
judgments before me. First is the Supreme Court judgment and
another is of Single Judge of this Court and contended that in the
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proceeding for probate, the genuineness of the will as to the
disposal of the property is not to be seen as the Court has only to
find out whether the probate should be granted to the Executor or
not. The citations are; Chiranjilal Shrilal Goenka (deceased)
through LRs...vs.Jasjit Singh and others; (1993) 2 Supreme
Court Cases 507; Baban Rambhau Jagdale..vs..Hanmant
Rambhau Jagdale; 2003 (1) Mh.L.J. 113.
6.
In the alternative, therefore, counsel for the
respondents stated that the civil suits are pending before the
Courts in the same subject matter of property and there should be
a direction to decide the suits as early as possible since the suits
are pending for over 10 years at the trial stage only and liberty be
granted in favour of the respondent no.2-Vimla or her children
named in the will to prosecute and defend the suits, if necessary
by transposition.
CONSIDERATION:
7. Upon hearing learned counsel for the parties, the
following points, therefore, arise for determination.
(i) Whether the impugned judgment and order
dated 23.07.2010 passed by learned trial Judge
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granting probate in favour of respondent no.1-
Madhukar is legal, correct and proper?
...No.
(ii) Whether the beneficiary under the will i.e.
grandchildren of deceased Soloman Wilfred or
children of respondent no.2-Vimala should be allowed
liberty to prosecute/defend various suits being the
interested parties, if necessary by transposition?
...Yes.
7. I have carefully read the application under Section 276
of the Indian Succession Act for grant of probate made by
applicant-Madhukar. I have carefully read his evidence also. It is
seen from the reading of the pleadings in the application as well as
from the evidence, I find that there is a total absence of any
pleading about relationship of the applicant-Madhukar Petkar with
the deceased Soloman as to why he would be appointed as the
Executor. According to me, what minimum is required is that, an
ordinary and prudent person would not appoint 'any' person as an
Executor unless such a proposed Executor is a man of close
confidence who would, in the opinion of the testator, take care of
the wishes of the testator honestly acting as an Executor. The
applicant-Madhukar neither pleaded nor stated a word in his
evidence as to under what circumstances, he was appointed as
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executor of the will. Mr.Abbasi, learned counsel for respondent
no.1 faintly tried to point out from the cross-examination of
appellant-Dilip that father of Madhukar was friend of the deceased
Soloman which is obviously without any foundation in pleadings
in the application. Even otherwise, looking to the cross-
examination, it is too vague and it is not possible for me to rely on
it. In my opinion, when Mrs.Vimala and her children are
beneficiaries under the will in question, there was no reason to
appoint the applicant-Madhukar as Executor of the Will in the
absence of any material to show as to why applicant-Madhukar
was chosen. On the contrary, the appellant has contended that the
applicant-Madhukar never stayed at Nagpur and he was for almost
forty years serving at Chandrapur and hardly had any close
acquaintance with the deceased Soloman. I do not think that the
probate should be granted merely at the askance. Since the
applicant-Madhukar has not established as to the circumstances
under which he was appointed as Executor, he did not discharge
his initial burden of proof. In my opinion, therefore, the probate
could not have been issued in his favour as probate cannot be
mechanically granted by the Court without being satisfied about
the reason to appoint any particular person as Executor. Hence, I
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answer the question no.1 in the negative.
8. Having answered point no.1 in the negative, in my
opinion, since it is the trite law as held in the aforesaid two cited
judgments that the probate Court does not decide any question of
title or existence of property itself, as appellate Court, I do not
decide in the genuineness, validity and legality of the will in
question as to the bequeath of the property etc. in favour of the
beneficiaries all the more so because various civil suits are pending
in the civil courts.
9. In that view of the matter, as prayed by learned counsel
for the respondents, liberty as stated in point no.2 framed by me
will have to be granted in favour of the beneficiaries under the will
i.e. respondent no.2 or her children with a further liberty to apply
for transposition according to law in the pending suit. Hence, I
answer point no.2 in the affirmative.
10. The next prayer made by both; appellant as well as
respondents; is to expedite hearing of the pending suits. I think
period of a decade has already passed. It would be appropriate to
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issue direction for disposal of the suits expeditiously. They are
said to be:
(i) Special Civil Suit No.200246/2004 pending on the file of 2 nd
Jt. Civil Judge Senior Division, Nagpur.
(ii) Special Civil Suit No.200333/2004 pending on the file of 2 nd
Jt. Civil Judge Senior Division, Nagpur.
(iii) Regular Civil Suit No.200302/2008 pending on the file of 2nd
Jt. Civil Judge Junior Division, Nagpur.
(iv) Regular Civil Suit No.202356/2012 pending on the file of 3 rd
Jt. Civil Judge Junior Division, Nagpur.
11. In that view of the matter, following order is passed.
ORDER
(i) First Appeal No.990/2010 is partly allowed.
(ii) The impugned judgment and order dated
23.07.2010 in Probate Case No.169/2005 passed by
3rd Jt. Civil Judge Senior Division, Nagpur granting
probate in favour of respondent no.1-Madhukar
Subhash Petkar is set aside.
(iii) Liberty as stated in the judgment for joining
party/transposition is reserved in favour of
beneficiaries under will dated 14.06.2004, son and
daughter of Mrs. Vimla and respondent no.2-Mrs.
Vimla.
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(iv) Liberty is also granted to apply for
consolidation of the various suits viz. Special Civil Suit
No.200246/2004, Special Civil Suit No.200333/2004,
Regular Civil Suit No.200302/2008 and Regular Civil
Suit No.202356/2012. The trial Judge is directed to
complete the trial and decide the suits named above,
within a period of two years from today.
JUDGE
kahale
