Bombay High Court
Parvatidevi Kantaprasad Kanojia ... vs Jagdishprasad Zapsu Zurai And 6 ... on 7 March, 2016
Bench: A.S. Oka
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
APPEAL NO. 722 OF 2014
IN
MISC.PETITION IN T.& I.J. NO. 58 OF 2010
1.PARVATIDEVI KANTAPRASAD KANOJIA )
An Adult, Aged About 62 Years, )
Indian Inhabitant of Mumbai, )
Occupation : Housewife )
ig )
2. Kailash Kantaprasad Kanojia )
An Adult, Aged about 39 years, )
Indian Inhabitant of Mumbai, )
Occupation : Business, )
both residing at 51-K, BMC Water Pipe Line)
Room No.5, Nava Nagar, Dhobi Ghat, )
Dockyard, Mumbai-400010. )
)
3. Neelam Kantaprasad Kanojia )
An Adult, Aged About 34 years, )
Indian Inhabitant of Mumbai )
Occupation : Professional )
)
4. Sushila Devendra Madan )
Sushila Kantaprasad Kanojia, )
An Adult, Aged about 33 years, )
Indian Inhabitant of Mumbai, )
Occupation: Housewife, )
)
5. Hemlata Kantaprasad Kanojia )
An adult, Aged about 24 years, )
Indian Inhabitant of Mumbai, )
Occupation : Service )
)
6. Rajesh Kantaprasad Kanojia, )
An Adult, Aged about 23 years, )
Indian Inhabitant of Mumbai, )
Occupation : Service )
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all resident at 51-K, BMC Water Pipeline )
Room No.5, Nava Nagar, Dhobi Ghat, )
Dockyard, Mumbai-400010. )...Appellants
Versus
1.JAGDISHPRASAD ZAPSU ZURAI )
An Adult, Aged 46 years, )
Indian Inhabitant of Mumbai, )
Occupation : Business )
)
2. Mahantprasad Zapsu Zurai, )
An Adult, Aged 50 years, )
Indian Inhabitant of Mumbai, )
Occupation: Business )
ig )
3. Jagmohan Zapsu Zurai, )
An Adult, Aged 57 years, )
Indian Inhabitant of Mumbai, )
Occupation : Business )
All residing at Room No.3, )
Ground Floor, Municipal Water Pipe, )
Zapsu Zurai Compound, )
Nawa Nagar, Dhobighat, Dockyard Road )
Mumbai-400010. )
)
4. Raghuvirprasad Zapzu Zurai )
An Adult, Aged 48 years, )
Indian Inhabitant, )
Occupation : Service, residing at )
Village & Post: Patti, Narendrapur )
Tehsil Shahgunj, Dist: Jaunpur )
Uttar Pradesh )
)
5. Gulabadevi Rajak )
An Adult, Aged 67 years, )
Indian Inhabitant, Occupation: Housewife )
Residing at Village Ustrahata, Tehsil- )
Shahgunj, Dist.Jaunpur, Uttar Pradesh. )
)
6. Krishnavati Rajak )
An Adult, Aged 44 years, )
Indian Inhabitant, Occupation:Housewife, )
Residing at Village:Imampur, )
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Tehsil:Shahgunj, Dist. Jaunpur, )
Uttar Pradesh )
)
7. Dharmadevi Zapsu Zurai, )
An Adult, Aged 86 years, )
Indian Inhabitant, Occupation Housewife )
Residing at Village & Post Patti, )
Narendrapur, Tehsil Shahgunj, )
Dist.Jaunpur, Uttar Pradesh )...Respondents
Mr.Prakash Shah i/b. Mr.P. M.Shah, for the Appellants.
Mr.Ashish Kamat with Mr.Vikram Sathye with Mr.S.Y.Mulani i/b. Mulani &
Co., for Respondent No.1.
-----
CORAM : A.S.OKA &
G.S.KULKARNI, JJ.
DATED : 7th MARCH,2016.
----
JUDGMENT: (PER G.S.KULKARNI, J.)
1. In this appeal, the Appellants challenge order dated 29 th
September,2014 passed by the learned Single Judge whereby
Miscellaneous Petition filed by the Appellants seeking revocation of the
Letters of Administration dated 17 th October,2008 granted in favour of
Respondent No.1, in Testamentary Petition No.761 of 2004 stands
rejected.
2. Respondent No.1 had filed the above Testamentary Petition
for grant of Letters of Administration in respect of the properties of the
deceased namely Zapsu Zurai who expired on 19th February,1999 and
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who had during his life time executed a Will dated 12th November,1998.
3. This Court by an order dated 17th October,2008 taking into
consideration the Will dated 12 th November,1998 and the consent
affidavits of the interested parties and more particularly the consent
affidavit of Late Kantaprasad Zapsu Zurai the husband of Appellant No.1
and father of Appellant No.2 to 4, issued the Letters of Administration.
4.
The Appellants in their Miscellaneous Petition before the
learned Single Judge contended that the consent affidavit dated 31 st
March,2005 executed by Kantaprasad Zapsu Zurai was a bogus
document. It was contended that Kantaprasad Zapsu Zurai was
operated for brain tumour on 10th September,1998 and was completely
bedridden from then and it was impossible for Kantaprasad to sign any
document. It was contended that late Kantaprasad had executed a
power of attorney dated 28th August,2000 in favour of Appellant No.2
and in the said power of attorney Kantaprasad had put his thumb
impression, as due to his health condition, he could not sign documents.
It was, thus, contended that the consent affidavit dated 31 st March,2005
was sham and a bogus document. Further, there were dispute between
Kantaprasad and the Respondents in respect of the said property being
the subject matter of the Letters of Administration and, therefore, there
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was no question of late Kantaprasad giving consent to the Letters of
Administration in the year 2005.
5. The learned Single Judge, however, did not agree with the
contentions as urged on behalf of the Appellants and dismissed the
Miscellaneous Petition by the impugned order.
6. Learned Counsel appearing for the Appellants principally
urged that there is serious infirmity in the impugned order inasmuch as
the learned Single Judge ought to have held that the consent affidavit
dated 31st March,2005 as executed by late Kantaprasad was a bogus
document. The signature as put on the consent affidavit was definitely
not of late Kantaprasad. It is submitted that the evidence as produced
on behalf of the Appellants was not appreciated in the proper
perspective. It is submitted that the deceased Kantaprasad could not
have attended the office of the Assistant Chief Translator due to his
health condition. It is urged that the Respondents deliberately obtained
the Letters of Administration after Kantaprasad died in the year 2006.
7. On the other hand, the learned Counsel appearing for the
Respondents has supported the order passed by the learned Single Judge
and has drawn our attention to various dates and to the consent affidavit
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and submits that there is no evidence on record to accept the contention
as raised on behalf of the Appellants so that the consent affidavit could
be disbelieved.
8. We have gone through the relevant documents as also the
impugned order. The only issue as sought to be urged on behalf of the
Appellants is in regard to the consent affidavit of the father of the
petitioner late Kantaprasad. Admittedly, the Letters of Administration
concerning the property of the Testator - Zapsu Zurai who was the
grandfather of Appellant Nos.2 to 6 and Appellant No.1 who was the
daughter-in-law, came to be issued taking into consideration the consent
affidavits of his brothers including the father of Appellant Nos.2 to 4
-late Kantaprasad which was executed on 31 st March,2005. Late
Kantaprasad expired on 3rd January,2006. The Letters of Administration
were issued on 17th October,2008. As regards the contentions as raised
on behalf of the Appellant, evidence was led by the parties and primarily
on the issue of signature of late Kantaprasad on the consent affidavit, so
as to ascertain whether it is a false / forged document.
9. The admitted position which has emerged on record is that
the consent affidavit dated 31st March,2005 of late Kantaprasad was
executed by him before the Assistant Chief Translator and Interpreter of
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this Court and after the same was interpreted to him in Hindi by the
interpreter of the High Court, Bombay. It has come in evidence that
Hindi was the mother tongue of late Kantaprasad who had corresponded
and communicated in Hindi. Further the S.S.C. Board mark-list of late
Kantaprasad shows that he studied in a Hindi High School. Further,
similar affidavits to the one executed by late Kantaprasad, were
executed by two other brothers on 4th November,2004 which were also
similarly interpreted by the Assistant Chief Translator and Interpreter
and executed before the said Officer. These persons have stood by their
consent affidavits. Further late Kantaprasad during his life time did not
dispute his affidavit. Though the Appellants contended that late
Kantaprasad was suffering from brain tumour and was hospitalised, the
medical papers to that effect were not proved nor any witnesses were
examined in that regard. The hospitalization of Kantaprasad was from
12th August,2000 to 20th September,2000. The affidavit in question is
dated 31st March,2005 which was five years thereafter. There is no
evidence on record to show that in the month of March,2005
Kantaprasad was incapable of making the signature. The consent
affidavit was prepared by one Advocate Mr.R.S.Desai and which was
identified and explained by him, who was representing the Respondents
even before the learned Single Judge. It is significant that the
Appellants did not examine the Advocate who had prepared the said
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consent affidavit and had identified late Kantaprasad as also had
explained the contents of the affidavit. Most importantly the Appellants
did not take any steps to examine the Assistant Chief Translator and
Interpreter, High Court, Bombay, before whom late Kantaprasad had
executed the affidavit and who had interpreted the affidavit in Hindi.
These infirmities are fatal to accept the contention as urged on behalf of
the appellants. The entire evidence which has come on record is far from
satisfactory to inspire any confidence whatsoever so as to accept the case
of the Appellants.
10. In the light of the above discussion and having carefully
examined the order passed by the learned Single Judge, we are of the
clear opinion that there is no merit in the contention as raised on behalf
of the Appellants. We, accordingly, dismiss the appeal. No order as to
costs.
(G.S.KULKARNI, J.) (A.S.OKA, J.)
