Shri. Nitesh S/O Shashikant ... vs Shri. Anil S/O Marotrao Khobragde ...
2016 Latest Caselaw 1316 Bom

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         IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH




                                                                                       
                                 NAGPUR.

                       FIRST   APPEAL     NO.   1118     OF     2015




                                                               
    Nitesh Shashikant Khobragade,




                                                              
    aged 41 yrs., Occu. Service, 
    R/o Ballyshop Railway Colony,
    Qr. No. L/98/1, Bexonbagh,
    Nagpur.                                                                 APPELLANT.




                                               
                              ig               VERSUS

    1] Anil Marotrao Khobragade,
    aged Major, Occu. Service,
    R/o0 Plot No. 10, Nawab Area,
                            
    Tilaknagar, Ravinagar, 
    Ambazari, Nagpur. 

    2] Sanjay Marotrao Khobragade,
      

    aged Major, Occu. Service, R/o
    Urjanagar, M.S.E.B. Colony,
   



    Qr. No. D/43/6, Post Urjanagar,
    Distt. Chandrapur.                                                      RESPONDENTS.


    Shri C. R. Bhagwani, Advocate for the appellant.





    Shri M. R. Joharapurkar, Advocate for the respondent no.1.
    Shri    Manke, Advocate for the respondent no. 2. 


                                     CORAM:     A. S. CHANDURKAR  J.





                               
                                      Dated    :   APRIL  07, 2016.

    ORAL JUDGMENT: 


                  In   view   of   notice   for   final   disposal   issued   on   04.01.2016   the

    learned counsel for the parties have been heard at length.  

    2]            Admit.  Taken up for final disposal with consent of parties.  




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    3]            This   appeal   has   been   filed   under   Section   299   of   the   Indian




                                                                                       
    Succession Act, 1925 (for short, the said Act) challenging the order dated




                                                               
    27.07.2015 passed by the learned Joint Civil Judge, Senior Division, Nagpur

    in   Probate   Petition   No.   6   of   2012   thereby   dismissing   the   proceedings   for




                                                              
    issuance of probate and granting liberty to the appellant to have the claim

    adjudicated before the competent Civil Court.  

    4]            Facts

in brief are that the appellant claims entitlement to a plot of

land alongwith property constructed thereon on the basis of will executed by

Smt Manoramabai Khobragade and Shri Marotrao Khobragade on

24.09.2003. According to the appellant he had been named as executor in

the said will. The appellant therefore filed a petition under Section 276 of

the said Act for grant of probate.

The respondents herein were duly served. They filed their reply

to the aforesaid proceedings. The respondent no.1 pleaded that the appellant

had no right whatsoever under the said will and thus disputed his

entitlement. The respondent no. 2 however also claimed entitlement on the

basis of will dated 24.09.2003.

5] The appellant thereafter led his evidence in the probate

proceedings. On 08.10.2013 as the respondent no.1 and his counsel were

absent the right to cross-examine the appellant was forfeited. Thereafter on

18.09.2014 the respondent no.1 and his counsel was absent and hence the

side of the respondent no.1 was closed. On 15.11.2014 the respondent no.1

filed an application below Ex. 66 for permission to lead evidence. He also

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filed an application below Ex. 67 in which a prayer for dismissal of the

proceedings was made. In the said application it was stated that in view of

the provisions of Section 213 of the said Act, the proceedings itself were not

competent and that the requirements of Section 57 of the said Act were not

satisfied. It was then stated that as the proceedings were being contested,

the same ought to have been converted into a suit.

6] The aforesaid application was opposed by the appellant by filing

reply at Ex. 69. Reference was made to the provisions of Section 28-A(1) of

the Bombay Civil Courts Act, 1869 with regard to the manner in which

contentious proceedings were required to be decided. It was also stated

that the appellant had examined himself and one witness and had closed his

side. The respondent no.2 had thereafter filed his evidence on affidavit and

at that stage the respondent no.1 had filed the application for dismissal of the

proceedings. It was therefore stated that the proceedings ought to be treated

as contentious proceedings and decided on merits.

By the impugned order dated 27.07.2015 the learned Judge of

the trial Court held that in view of the provisions of Section 213 read with

Section 57(c) of the said Act it was not necessary to obtain probate of the

will. The application below Ex. 67 was therefore allowed and the

proceedings came to be dismissed after granting liberty to the appellant to

file appropriate proceedings for adjudication of his claim before the

competent civil Court.

7] Shri C. F. Bhagwani, the learned counsel for the appellant submitted

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that the trial Court was not justified in dismissing the proceedings for grant

of probate. He submitted that as the prayer for grant of probate was being

contested by the respondent no. 1, the procedure as prescribed by Section

295 of the said Act was required to be followed. He submitted that in fact

the appellant had led his evidence in support of the prayer for grant of

probate and after the side of the respondent no.1 was closed, the application

for dismissal of the proceedings was filed. It was then submitted that even if

it was not necessary for executor to establish his right under Section 213 of

the said Act, once the proceedings for grant of probate had been filed and the

same became contentious the proceedings were required to be decided by

following the procedure prescribed by Section 295 of the said Act. The

learned counsel placed reliance upon the judgment of the Division Bench in

Gajanan Chandrarao Sawant Vs. Mrs. Chandrabhaga Chandrarao Sawant

and others 2001(1) Civil LJ 332 and the judgment of learned Single Judge of

the Gujrat High Court in Chandravadan Manubhai alias Manwantrai Mehta

Vs. Nalini Navin Bhagwati and others AIR 1996 Gujarat 123. He therefore

submitted that the present proceedings itself can be permitted to be

converted into civil suit for being tried by the competent Court.

8] Shri M. R. Joharapurkar, the learned counsel for the respondent

no.1 on the other hand supported the impugned order. He submitted that as

the proceedings for grant of probate were not maintainable in view of

provisions of Section 213 read with Section 57 of the said Act, there was no

question of converting the proceedings for being tried as a suit. He referred

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to the provisions of Section 264(2) of the said Act and submitted that no

Notification had been issued by the State Government conferring jurisdiction

on the District Judge to grant or revoke probate in Nagpur district. It was

submitted that as the proceedings itself were not maintainable there was no

question of seeking its conversion for being tried as a civil suit. In support of

his submissions the learned counsel placed reliance upon the judgments in

Vishnu Ramchandra Undage Vs. Ganapati Ramchandra Undage & others

2005(4) Maharashtra Law Journal 1108 and Madhukar Rajanna Darbhe Vs.

Union of India and others 2008(2) Bom. C. R. 418. He therefore submitted

that the proceedings were rightly dismissed by the trial Court.

9] Shri Manke, the learned counsel appearing for respondent no.2

however supported the submissions made on behalf of the appellant. Relying

upon the judgment of the Hon'ble Supreme Court in the case of Balbir Singh

Wasu Vs. Lakhbir Singh and others (2005) 12 Supreme Court Cases 503, it

was submitted that considering the observations made in para 5 of the said

judgment it was open for the Court to entertain an application for grant of

probate even if the matter was not covered by Section 213 of the said Act.

9] I have given due consideration to the respective submissions and

I have also gone through the records of the case. The point that arises for

determination is:

Whether the trial Court instead of dismissing the proceedings ought to have converted the same for being tried as a civil suit?

10] The facts on record indicate that the appellant is seeking probate

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with regard to the will executed on 24.09.2003 in which the appellant has

been shown as an executor. In these proceedings the respondent no.1 by

filing reply has opposed the prayer for grant of probate. In view of such

opposition, the proceedings have become contentious in view of the

provisions of Section 295 of the said Act. The question however is on such

proceedings becoming contentious whether the same deserve to be dismissed

by relying upon the provisions of Section 213 read with Section 57(b) of the

said Act.

11] In Balbir Singh Wasu (supra) probate proceedings were filed

before the Court which had no jurisdiction to entertain the same. In that

context while considering the provisions of Section 213 of the said Act and

the situation where probate proceedings have been filed at a place not

covered by Section 213 of the said Act, in para 5 of the said judgment it was

observed thus:

"5. The appellant's counsel then contended that Section 213 of the Succession Act which requires an executor

to obtain probate before establishing his claim under the Will was not applicable outside the Presidency Towns of Calcutta, Madras and Bombay. Assuming this to be correct, we do not read Section 213 as prohibiting the executor from applying for probate as a

matter of prudence or convenience to the courts in other parts of the country not covered by Section 213. Those courts are competent to entertain such applications if made."

The aforesaid observations indicate that the proceedings for grant of probate

were permitted to be continued despite the same having been filed in a Court

which was not covered by Section 213 of the said Act. Thus if the probate is

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sought as a matter of prudence in a Court that is not covered by the

provisions of Section 213 of the said Act, such Court would be competent to

entertain the application for probate. In the present case, though the

provisions of Section 213 of the said Act would not apply to seek grant of

probate, the proceedings would have to be entertained on merits.

12] Admittedly, the appellant had already led his evidence in support

of the application as made. Though the right of the respondent no.1 to lead

evidence was forfeited, an application for setting aside said order was also

moved by the respondent no.1. In these facts therefore if the present

proceedings are permitted to be converted into a suit as the same have

become contentious, the same would result in avoiding multiplicity of

proceedings. Similar course was followed in the case of Chandravadan Mehta

(supra) by the Gujarat High Court. Similarly, the Division Bench in Gajanan

Chandrarao (supra) permitted the proceedings to be tried as a suit after

noticing the contest between the parties.

13] The judgment of learned Single Judge in the case of Vishnu

Ramchandra Undage (supra) relied upon by the learned counsel for

respondent no.1 refers to the proceedings for probate being filed in a city not

covered by Section 213 of the said Act. It was held that the executing Court

was not correct in holding that the will in question required probate. Said

decision is on the aspect of requirement of obtaining probate which issue

does not arise in the present case. Similarly, the decision in Madhukar

Rajanna Darbhe (supra) considers challenge to the validity of the provisions

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of Section 57 of the said Act. Said provision has been held to be

constitutionally valid. This decision also does not assist the case of the

respondent No.1. Considering the observations of the Hon'ble Supreme

Court in Balbir Singh Wasu (supra) as a matter of prudence if a party applies

for grant of probate even in a Court not covered by Section 213 of the said

Act, such proceedings can be entertained.

14] The trial Court relied upon the provisions of Section 213 read

with Section 57(c) of the said Act while dismissing the proceedings.

Considering the observations of the Hon'ble Supreme Court in Balgir Singh

Wasu (supra) in the facts of the present case if the present proceedings are

permitted to be converted into a civil suit for adjudication as the same have

become contentious, such course would serve the ends of justice. The point

as framed is answered by holding that the trial Court ought to have itself

converted the proceedings into a civil suit for being tried on merits instead of

dismissing the same.

15] Accordingly following order is passed:

1] The order dated 27.07.2015 passed below Ex. 67 and the

consequential order passed below Ex. 1 is quashed and set aside.

2] The probate proceedings are restored on the file of the trial

Court. The trial Court shall pass appropriate order in terms of Section 295

of the said Act for treating the proceedings as contentious. The proceedings

shall be decided on their own merits without being influenced by any

observations in this order. It would be open for the parties to raise

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appropriate defences in accordance with law. The record of the proceedings

be sent to the trial Court forthwith.

3] The First Appeal is allowed in aforesaid terms with no order as

to costs.

JUDGE

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