Bombay High Court
Bakul Chandulal Mehta vs Yogesh C. Maniyar And Mrs.Jyotsna ... on 23 June, 2016
Bench: G.S. Patel
MANIYAR & MANIYAR V MEHTA
904-CST114-14+.DOC
ATUL
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
TESTAMENTARY AND INTESTATE JURISDICTION
CHAMBER SUMMONS NO. 114 OF 2014
IN
TESTAMENTARY SUIT NO. 22 OF 1990
IN
TESTAMENTARY PETITION NO. 509 OF 1989
JYOTSNA RASIKLAL MANIAR
D/o Late Shri Prabhudas Chhaganlal Mehta,
Residing at Flt No. 1, Ganga Grukh, Sir Vithaldas
Nagar, Sarojini Road, Santacruz (W), Mumbai
400 054 ...Applicant
In the matter between
YOGESH CHUNILAL MANIYAR
an Inhabitant of Mumbai, residing at Krishna
Nivas, Laxmi Narayan Lane, Kandivali West,
Mubmai 400 067 ...Plaintiff
Versus
BAKUL CHANDULAL MEHTA
adult Indian Inhabitant of Mumbai, residing at 1st
Floor, Shanti Sadan 183-parekh Lane, Kandivali
West, Mumai 400 067 ...Defendant
WITH
ORDINARY ORIGINAL CIVIL JURISDICTION
Page 1 of 11
23rd June 2016
::: Uploaded on - 28/06/2016 ::: Downloaded on - 28/06/2016 23:57:46 :::
MANIYAR & MANIYAR V MEHTA
904-CST114-14+.DOC
CHAMBER SUMMONS NO. 422 OF 2014
IN
SUIT NO. 690 OF 1987
JYOTSNA RASIKLAL MANIAR
D/o Late Shri Prabhudas Chhaganlal Mehta,
Residing at Flt No. 1, Ganga Grukh, Sir Vithaldas
Nagar, Sarojini Road, Santacruz (W), Mumbai
400 054 ...Applicant
In the matter between
BAKUL CHANDULAL MEHTA
adult Indian Inhabitant of Mumbai, residing at 1st
Floor, Shanti Sadan 183-Parekh Lane, Kandivali
West, Mumai 400 067 ...Plaintiff
Versus
YOGESH CHUNILAL MANIYAR
an Inhabitant of Mumbai, residing at Krishna
Nivas, Laxmi Narayan Lane, Kandivali West,
Mubmai 400 067 ...Defendant
Mr. Rajesh Shah, i/b Mr. Atul Tungare, for the Plaintiff in TS/22/90
& for the Defendant in S/690/1987.
Mr. Induprakash Tripathi, with Ms. Bhagyashree Gawas, i/b Mr.
C.K. Tripathi, for the Applicant in both the matters.
CORAM: G.S. PATEL, J
DATED: 23rd June 2016
Page 2 of 11
23rd June 2016
::: Uploaded on - 28/06/2016 ::: Downloaded on - 28/06/2016 23:57:46 :::
MANIYAR & MANIYAR V MEHTA
904-CST114-14+.DOC
ORAL JUDGMENT:
1.
These two Chamber Summonses are filed by one Jyotsna
Rasiklal Maniar ("Jyotsna"). She claims to be the daughter of one
Prabhudas Chaganlal Mehta ("Prabhudas"), the predeceased
brother of the Testator, Shantilal Chaganlal Mehta ("Shantilal").
There are two Testamentary Suits: Testamentary Suit No. 22 of
1990 and Testamentary Suit No. 136 of 2015. I may note, in passing,
that the latter, Testamentary Suit No. 136 of 2015, has come to be
numbered in the quite peculiar circumstances that are set out in my
order dated 27th July 2015.
2. As previously noted, two Wills are propounded, both said to
have been made by Shantilal. Yogesh Chunilal Maniar, the Plaintiff
in Testamentary Suit No. 22 of 1990, propounds a Will dated 27th
May 1983; Dr. Bakul Chandulal Mehta, a neighbour of Shantilal
Mehta, propounds a Will dated 19th July 1987 in Testamentary Suit
No. 136 of 2015. I have previously directed that the Suit relating to
the later Will will, i.e., where Dr Bakul Mehta is the Plaintiff, must
be tried first. In addition, Dr. Bakul Mehta has also filed a specific
performance Suit No. 690 of 1987.
3. Now Jyotsna seeks in these Chamber Summonses that she be
made a party-Defendant to both Suits. She has also filed a
substantially similar Chamber Summons in Suit No. 690 of 1987,
also seeking to be joined as a party-Defendant. Her claim is based on
the assertion that she is Shantilal's heir, his predeceased brother's
23rd June 2016
MANIYAR & MANIYAR V MEHTA
904-CST114-14+.DOC
daughter, Shantilal having no children of his own, and, as such, is
entitled to succeed to his estate.
4. These two Chamber Summonses were first considered by this
Court on 8th October 2014 (R.S. Dalvi, J.). The learned Judge
found, prima facie, that the documents then produced by Mrs.
Jyotsna did not inspire confidence and did not establish her heirship,
i.e., that she had not shown that she was an heir who could succeed
to any part of Shantilal Mehta's estate. Some of her documents were
considered. Then, in paragraph 8, the learned Judge directed as
follows:
"8. In view of the aforesaid controversy, oral
evidence shall have to be led by the Applicant to prove
her heirship and she shall have to be cross-examined
by the Petitioner/Plaintiff in the above suit and both the
above petitions. The Applicant shall also have to explain
the delay of 25 years in taking out this application for
challenging the respective wills in the above suits."
5. The trial in Dr. Bakul Mehta's suit, one that was to proceed
first, has remained at this stage ever since. For the past two years,
without any progress.
6. Mr. Shah, who appears for Yogesh Maniar, submits that these
Chamber Summonses are only an attempt to delay the progress of
the two competing testamentary actions. There is no valid
explanation for the delay on Jyotsna's part. He also points out that
although Shantilal Mehta had no biological children, he did have an
adopted daughter, Usha Mehta. That adoption has never been
23rd June 2016
MANIYAR & MANIYAR V MEHTA
904-CST114-14+.DOC
challenged in any proceeding. Jyotsna herself has never brought suit
to have that adoption invalidated. In his submission, so long as that
adoption remains unchallenged, it is Usha, the adopted daughter,
who alone who can succeed to Shantilal Mehta's estate upon
intestacy. She alone will have a caveatable interest. I believe he is
correct.
7. Mr. Tripathi, who represents Jyotsna, submits that no
adoption deed has been produced. Jyotsna has now placed
additional documents explaining more fully her claim to heirship;
for instance, how it is that she came to be taking her schooling in
Fort, Mumbai though living at Kadivali at the relevant time, a point
on which Mrs Dalvi J expressed doubt in her order. He also submits
that Jyotsna learnt of these suits only in 2013 when, in response to a
public notice that she issued proposing to sell the property, both
Yogesh Maniar and Dr. Bakul Mehta sent in written objections. It is
only thereafter that she was able to file these Chamber Summonses.
8. Finally, he submits that in view of the directions in paragraph
8 of the order of 8th October 2014, the Chamber Summonses itself
must be tried as would a suit. I take this submission to mean that, in
the Chamber Summonses, not only must issues be struck and
directions given for a full-dress trial, but that the Chamber
Summons itself can possibly be used to try, determine and yield a
substantive relief to Jyotsna Maniar, although she has filed no
substantive civil proceedings at any time to assert those rights or
establish those claims. I regret that I am unable to see how this can
be done under our procedure, either under the Code of Civil
Procedure, 1908 ("CPC") or the Original Side Rules ("Rules").
23rd June 2016
MANIYAR & MANIYAR V MEHTA
904-CST114-14+.DOC
None are able to show me how such a substantive relief can ever be
obtained in a Chamber Summons. Leaving aside the nice
distinctions between a Chamber Summons and a Notice of Motion
in our Rules, and taking the Chamber Summons to be an application
for interim or interlocutory relief, I am unable to understand how a
substantive final relief can be obtained in any such proceeding
without an underlying substantive, properly brought civil Suit. The
relief that Jyotsna seeks, of her declaration of heirship, can only be a
final relief. That requires her to also obtain an adjudication
invalidating Usha's adoption. These are necessarily reliefs in the
form of final prayers. They are not even sought in the present
Chamber Summonses. The only relief sought in these Chamber
Summonses is being added as a party-defendant. That relief
assumes that Jyotsna has been able to establish her heirship.
Evidently, that cannot be done in a Chamber Summons or any
application for interim relief. In short, what Mr. Tripathi seems to
suggest is that in these Chamber Summonses for impleadment, he
ought to be able to obtain a decree, one that can only be obtained in
a suit, yet without ever having filed, or being required to file, any
such suit. I do not see how Mr. Tripathi could ever seek a decree in
these Chamber Summonses; yet that is precisely what he seeks, by
necessary implication, and that is precisely what he must have
before he can seek impleadment for Jyotsna. That relief is
impossible in a Chamber Summons for impleadment.
9. Am I "bound" by paragraph 8 of the 8th October 2014 order?
What does that paragraph actually do? In my view, whether or not
any party says so, this direction in the order of 8th October 2014 is
an error arising from an accidental slip or perhaps even an omission.
23rd June 2016
MANIYAR & MANIYAR V MEHTA
904-CST114-14+.DOC
There is no known method or process by which these directions can
be put into effect. There is no question of taking the Chamber
Summonses "to trial". To that extent, paragraph 8 of the previous
order is clearly an error, and it seems to me to have arisen by
accident. That paragraph is not in any sense a finding in law. It
determines no rights. It is merely a procedural or ministerial
direction, and one that is incorrect, and ought to have been pointed
out. A procedural direction, one that does not affect the rights of the
parties, can always be corrected. If it were otherwise, and Courts
could not correct course when such a correction was palpably
required, the result would be jurisprudential mayhem. This is the
reason there is the power not only in Section 151 of the CPC but a
plainly worded power in Section 152:
152. Amendment of judgments, decrees or orders:--
Clerical or arithmetical mistaks in judgments, decrees
or orders or errors arising therein from any accidental
slip or omission may at any time be corrected by the
Court either of its own motion or on the application of
the parties.
(Emphasis added)
10. It is settled law that the principle behind this Section is actus
curiae neminem gravabit -- none should be prejudiced by an act of
the Court. This was recognized by the Supreme Court in Niyamat
Ali Molla v Sonargaon Housing Cooperative Society Ltd.1 The
Supreme Court held:
1 (2007) 13 SCC 421
23rd June 2016
MANIYAR & MANIYAR V MEHTA
904-CST114-14+.DOC
18. Section 152 of the Code of Civil Procedure
empowers the court to correct its own error in a
judgment, decree or order from any accidental slip or
omission. The principle behind the said provision is
actus curiae neminem gravabit i.e. nobody shall be
prejudiced by an act of court.
19. The Code of Civil Procedure recognises the
inherent power of the court. It is not only confined to
the amendment of the judgment or decree as
envisaged under Section 152 of the Code but also
inherent power in general. The courts also have duty
to see that the records are true and present the
correct state of affairs. There cannot, however, be any
doubt whatsoever that the court cannot exercise the
said jurisdiction so as to review its judgment. It cannot
also exercise its jurisdiction when no mistake or slip
occurred in the decree or order. This provision, in our
opinion, should, however, not be construed in a
pedantic manner. A decree may, therefore, be
corrected by the court both in exercise of its power
under Section 152 as also under Section 151 of the Code
of Civil Procedure. Such a power of the court is well
recognised.
11. In State of Punjab v Darshan Singh (also cited in Niyamat Ali
Molla), the Supreme Court said:2
12. Section 152 provides for correction of clerical or
arithmetical mistakes in judgments, decrees or orders
or errors arising therein from any accidental slip or
omission. The exercise of this power contemplates the
correction of mistakes by the court of its ministerial
actions and does not contemplate passing of
2 (2004) 1 SCC 328.
23rd June 2016
MANIYAR & MANIYAR V MEHTA
904-CST114-14+.DOC
effective judicial orders after the judgment, decree or
order. The settled position of law is that after the
passing of the judgment, decree or order, the same
becomes final subject to any further avenues of
remedies provided in respect of the same and the very
court or the tribunal cannot, on mere change of view, is
not entitled to vary the terms of the judgments, decrees
and orders earlier passed except by means of review, if
statutorily provided specifically therefor and subject to
the conditions or limitations provided therein. The
powers under Section 152 of the Code are neither to be
equated with the power of review nor can be said to be
akin to review or even said to clothe the court
concerned under the guise of invoking after the result
of the judgment earlier rendered, in its entirety or any
portion or part of it. The corrections contemplated are
of correcting only accidental omissions or mistakes
and not all omissions and mistakes which might have
been committed by the court while passing the
judgment, decree or order. The omission sought to be
corrected which goes to the merits of the case is
beyond the scope of Section 152 as if it is looking into
it for the first time, for which the proper remedy for the
aggrieved party, if at all, is to file an appeal or revision
before the higher forum or review application before
the very forum, subject to the limitations in respect of
such review. It implies that the section cannot be
pressed into service to correct an omission which is
intentional, however erroneous that may be. It has been
noticed that the courts below have been liberally
construing and applying the provisions of Sections 151
and 152 of the Code even after passing of effective
orders in the lis pending before them. No court can,
under the cover of the aforesaid sections, modify, alter
or add to the terms of its original judgment, decree or
23rd June 2016
MANIYAR & MANIYAR V MEHTA
904-CST114-14+.DOC
order. Similar view was expressed by this Court in
Dwaraka Das v. State of M.P. [(1999) 3 SCC 500] and
Jayalakshmi Coelho v. Oswald Joseph Coelho [(2001) 4
SCC 181].
12. The direction in paragraph 8 seems to me to fall squarely
within this frame. It prejudices the trial of a properly brought brace
of suits (by Bakul Mehta and Yogesh Maniar), and it causes each of
those Plaintiffs the most severe prejudice. It is an erroneous
ministerial direction to conduct a trial in the Chamber Summonses
in aid of a final, substantive relief not sought and incapable of being
granted in any such interim application for impleadment. The
accidental slip or omission lay in not directing or permitting Jyotsna
to file a substantive suit to establish her rights and title, and to assail
Usha's adoption. Absent that adjudication, no application for
impleadment was maintainable.
13. In my view, the Chamber Summonses are not maintainable.
The Chamber Summonses will have to be dismissed. However,
keeping in mind the previous order, all rights, remedies and
contentions raised by Jyotsna Maniar are expressly left open. The
findings in the order of 8th October 2014 will also not operate as
findings against Jyotsna in any such proceeding that she may file,
and that proceeding will have to be decided on its own merits,
unfettered by the observations in the order on the Chamber
Summons or in this order. Jyotsna will be entitled to adopt such civil
proceedings in an appropriate, jurisdictionally competent court, as
she is advised to establish her heirship, as also to challenge the
adoption of Usha Mehta.
23rd June 2016
MANIYAR & MANIYAR V MEHTA
904-CST114-14+.DOC
14. Both the Chamber Summonses are dismissed. No costs. The
two suits are to be listed for directions on 8th July 2016.
(G. S. PATEL, J.)
23rd June 2016
