Bombay High Court
Prashant S/O Bhagwandas Bajoriya vs Smt. Bharti Bharat Bajoriya And ... on 19 June, 2017
Bench: S.B. Shukre
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH : NAGPUR
Civil Revision Application No. 14 of 2017
Applicant : Prashant son of Bhagwandas Bajoriya,
aged about 41 years, Occ: Business, r/o
In front of Collector Office, Civil Lines,
Yavatmal
versus
Respondents : 1) Smt Bharti Bharat Bajoriya, aged about
39 years, Occ: Household
2) Chetan Bharat Bajoriya, aged about 15
years, Occ: Education, through natural
guardian Smt Bharti Bharat Bajoriya
Both residents of Bajoriya Plaza, LIC Square,
Yavatmal
3. Bhagwandas Purushottam Bajoriya (since
deceased, through his legal representative) -
Smt Sushilabai Bhagwandas Bajoria, aged
about 65 years, Occ: Household, resident of
In front of Collector Office, Civil Lines, Yavatmal
Shri M. G. Bhangde, Senior Advocate and Shri R. M. Bhangde,
Advocate with him for applicant
Shri S. S. Bhalerao, Advocate for respondents no. 1 and 2
Respondent no. 3 served
Coram : S. B. Shukre, J
Dated : 19th June 2017
Oral Judgment
1. Rule. Heard forthwith by consent of parties.
2. It is the submission of Shri M. G. Bhangde, learned Senior
Advocate for applicant that the question of title cannot be gone into in an
application for revocation of Letter of Administration and even then the learned
Civil Judge, Senior Division has entertained such an application filed under
Section 383 of the Indian Succession Act. He further submits that the judgment
of this Court rendered in Appeal against Order No. 107 of 2014 (Prashant
Bhagwandas Bajoriya v. Smt Bharti Bharat Bajoriya and ors) on 19 th December
2016 though brought to th notice of the trial Court, was not considered by the
trial Court. He further submits that it has been the specific case of the
applicant that the respondents have lost their status as legal heirs, because they
have relinquished their share in the subject property and it was an oral
relinquishment and when such an objection was taken, it related to the issue of
title and as such could not be gone into by the Probate Court.
3. Shri Bhalerao, learned counsel for respondents no. 1 and 2
submits that the basic issue involved in this case is of concealment of material
facts and fraud played on the Court by the applicant when MJC No. 62 of 2008
was decided in their favour by the Probate Court. He submits that during
pendency of these proceedings, one of the applicants and the legatee Bharat
Bajoriya - husband of respondent no. 1 died and even though the respondents
were his class-I heirs, they were not brought on record and on the contrary, a
statement was made, albeit falsely, that deceased Bharat had left behind no
legal heirs. Since this was a material fact but was not placed on record before
the Probate Court, the Probate Court has rightly entertained the application
filed under Section 383 of the Indian Succession Act. He places his reliance on
Peter John D'Souza & ors v. Armstrong Joseph D'Souza reported in 2014 (3)
Mh. L. J. 876.
4. Learned Senior Advocate has also invited my attention to the view
taken by the learned single Judge of this Court in Archana Arun Palav v.
Jennifer Michael & ors reported in 2013 (5) Mh. L. J. 916.
5. The cases relied by learned counsel for both the sides appear to be
taking a uniform view that whenever issue of title is required to be decided, a
probate court would not have any jurisdiction in respect of the same and it is
only when a plea of fraud or concealment of material facts is raised that the
Probate Court can entertain an application filed under Section 383 of the Indian
Succession Act. But, even in such a case the foundational plea more often than
not would relate to issue of title and then the Probate Court would have to
consider the same appropriately by applying well-settled principles of law. It
was also a view taken by this Court in its judgment delivered in AO No. 107 of
2014 (supra) which, in fact, was brought to the notice of the Probate Court, as
submitted by learned Senior Advocate. However, it appears that the said case
though placed before the Probate Court was not appropriately considered by it.
The impugned order, a bare perusal will be enough, to say this, even does not
make any reference to the principles of law discussed by this Court in AO No.
107 of 2014. For these reasons , I am of the view that the impugned order is
peverse and deserves to be quashed and aside and the matter needs to be
remitted back to the same Court to consider the objection application afresh.
5. Civil Revision Application is allowed. The impugned order passed
below Exhibit 1 is quashed and set aside and the matter is remitted back to the
same Court for decision afresh on the Objection Application in accordance with
law. Both the parties shall be given appropriate opportunity of leading
evidence, if any. Cases referred to in this judgment shall be considered for their
application, if any, to the fact situation before the learned Probate Court. Parties
to appear before the Probate Court on 28 th June 2017 and the Probate Court
shall endeavour to dispose of the Objection Application as expeditiously as
possible, preferably within three months from the date of appearance of the
parties. No order as to costs.
6. As regards the other order impugned in this case which is passed
below Exhibit 56 on 25.1.2017, the application has been rendered infructuous
in view of the subsequent development in the nature of the respondents not
pressing for the prayer in Exhibit 56. Application (exhibit 56) is also disposed of
as not pressed.
S. B. SHUKRE, J
joshi
