Bombay High Court
Sambhaji Vithoba Hatkar And Anr vs Sukhubai Laxman Bhusnar on 26 March, 2025
2025:BHC-AS:15582
33 Fa-785-2022.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FIRST APPEAL NO. 785 OF 2022
1. Sambhaji Vithoba Hatkar ]
Age : 44 years, Occ : Agriculturist, ]
2. Ashok Vithoba Hatkar ]
Age : 42 years, Occ : Agriculturist, ]
Both residing at Kousari, Taluka Jath, ]
District : Sangli ] ...Appellants
Versus
Sakhubai Laxman Bhusnar ]
Age : 57 years, Occ : Household, ]
Residing at Diksal, Taluka Sangola ]
District : Solapur ] ...Respondent
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Mr. Kuldeep U. Nikam for the Appellant.
None for Respondent.
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Coram : Sharmila U. Deshmukh, J.
Date : 26th March, 2025.
Oral Judgment :
1. The First Appeal has been preferred challenging the judgment
dated 5th October, 2015 passed by the Joint Civil Judge, Senior Division,
Sangli issuing the Probate in the name of sole Respondent under
Section 276 of the Indian Succession Act, 1925.
2. The Respondent herein is the daughter of one Bhimabai Vithoba
Patil who expired on 10th November, 2014. It was stated in the
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Application for Probate that Bhimabai had executed Will on 5 th
November, 2014 bequeathing her ½ share of Gat No. 648 of village
Kosari, Tal. Jath, District - Sangli to the sole Respondent who was her
daughter. The application for probate was filed without impleading the
present Appellants who are the sons of Vithoba Patil (Hatkar).
Bhimabai claimed to be wife of Vithoba Patil and in the Will mentioned
that her husband had allotted the property towards her maintenance
and as per Section 14 of Hindu Succession Act, 1956, she was the
absolute owner of the property and bequeathed the same. Upon the
Will being duly proved, the Trial Court issued Probate in the name of
Respondent, however, no citation was served upon the present
Appellants and there was no Respondent in the said Civil Miscellaneous
Application. After acquiring knowledge about the same, Appeal came
to be preferred before the District Judge, which was returned for
presentation to this Court in view of decision in the case of Smt. Nola
Jonathan Ranbhise vs. Union of India1.
3. Office noting indicates that the sole Respondent has been duly
served. However, none appears for Respondent.
4. Mr. Nikam, learned counsel appearing for Appellants would
submit that the property bequeathed by the Will of Bhimabai was their
ancestral property and without being served with any citation though
1 2014 (4) ALL MR 181.
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having interest in the property, the Probate could not have been
granted. He would further submit that the Apex Court in the case of
Manibhai Amaidas Patel vs. Dayabhai Amaidas2, the Apex Court has
held that it is necessary to cite parties who would otherwise have
interest in the succession to the estate of the deceased which would
naturally include all the heirs of the deceased. He would submit that
the Apex Court in that case also observed that grant was not opposed
as none was made party and held that grant was obtained by
concealing from the Court something which is very material to the case
and the Appellants therein were entitled to be heard. He submits that
similarly, in the case of Ajit Ramchandra Yadav vs. Daulat Shivaji
Yadav3 Co-ordinate Bench of this Court followed the decision in the
case of Manibhai Amaidas Patel (supra) and held that Appellants were
proper party to the Probate proceedings and merely issuance of public
notice is not sufficient to infer knowledge about the pendency of the
Probate proceedings. He would therefore submit that without issuing
any citation to the Appellants who had an interest in the property, the
Probate could not have been granted.
5. The issue which arises for consideration is whether the Probate
could have been granted to the sole Respondent without impleading
the present Appellant as party to the proceedings.
2 (2005) 12 SCC 154.
3 First Appeal No. 400 of 2018, dtd. 30th August, 2021.
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6. Perusal of the impugned judgment would indicate that the sole
Respondent claimed to be daughter of Bhimabai Vithoba Patil and
Vithoba Patil is the father of present Appellants. The sole Respondent
would be step-sister of present Appellants. The property which has
been bequeathed by the Will to the sole Respondent has been stated
in the Will to have been allotted by Vithoba Patil towards maintenance
of Bhimabai. Considering that the property was allotted by Vithoba,
the Appellants who are sons of Vithoba would have an interest in the
said property, particularly if the property was ancestral property. That
being so, the Probate Application could not have been filed without
impleading the present Appellant particularly, when the Will
specifically makes a mention that the property has been allotted to
Vithoba. Under Section 283, the District Judge is empowered to issue
citations calling all persons claiming to have any interest in estate of
deceased.
7. In the present probate Application, the sole Respondent did not
implead the Appellants as party and therefore, there was no
opposition to the grant of probate. The Apex Court in the case of
Manibhai Amaidas Patel (supra) had held that non-impleadment of
the party having interest in the estate of the deceased suffers from
gross lacuna in Paragraph 8 to 10 of the said judgment, which reads as
under :
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"8. The appellants have raised several contentions in support
of their appeal before us all of which are not necessary to be
noted. We are satisfied that the appeal must be allowed in
view of the contention, namely, that both the courts have
wrongly failed to notice that Section 263 allowed the
appellants to apply for revocation of the grant of Probate. The
relevant extract of this section reads as under:
263. Revocation or annulment for just cause.- The grant of
Probate or letters of administration may be revoked or
annulled for just cause.
Explanation - Just cause shall be deemed to exist where -
(a)the proceedings to obtain the grant were defective in
substance; or
(b)the grant was obtained fraudulently by making a false
suggestion, or by concealing from the court something
material to the case; or
(c) the grant was obtained by means of an untrue allegation of
a fact essential in point of law to justify the grant, though such
allegation was made in ignorance or inadvertently; or
Illustrations
(i) --------
(ii) The grant was made without citing parties who ought to
have been cited.
(iii) The will of which Probate was obtained was forged or
revoked.
(iv)-(vii) -----------
9. This would clearly show that it is necessary to cite parties
who would otherwise have an interest in the succession to the
estate of the deceased. That would naturally include all the
heirs of the deceased. Besides, Section 263 gives power to the
District Judge as regards the issue of citations calling upon all
persons claiming to have any interest in the estate of the
deceased to come and see the proceedings before the grant
of Probate. Necessarily therefore the facts on the basis of
which the District Judge is required to exercise his discretion
must be fairly placed before him. In this case the respondent
had done nothing of the sort as we have already noticed.
10. The courts below also overlooked the fact that in their
application for revocation the appellants had clearly stated
that in other proceedings between the members of the family
of Amaidas and the respondent the Will had been successfully
disputed. In the circumstances, for the respondent to say that
the grant was being opposed by "nobody" was misleading. The
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grant was obtained by concealing from the court something
which was very material to the case. The appellants were
entitled to be heard and doubtless the District Judge would
have directed to issue of citations to each of Amaidas's heirs
on intestacy under Section 263(1) (c) of the Act had the true
facts been revealed by the respondent in his application for
grant of Probate. The advertisement in this case was wholly
insufficient to patch up the gross lacuna."
8. The issue is settled by the decision of the Apex Court in the case
of Manibhai Amaidas Patel (supra) and followed by the Co-Ordinate
Bench of this Court in the case of Ajit Ramchandra Yadav vs. Daulat
Shivaji Yadav (supra) that the issuance of public notice will not lead to
inference that Appellant has sufficient knowledge of Probate
proceedings.
9. In light of the settled position of law, as Appellants had an
interest in the estate of the deceased, it was necessary to implead
Appellants as party and to issue citations to the Appellants.
10. In light of the above, the issue is answered in favor of Appellants.
11. Resultantly, following order is passed:-
:ORDER:
[i] The impugned judgment dated 5 th October, 2015 is hereby
quashed and set aside.
[ii] Civil Miscellaneous Application No. 21 of 2015 is restored
to file of Joint Civil Judge, Senior Division, Sangli to be
considered afresh after impleading present Appellants as
parties to the Civil Miscellaneous Application.
[Sharmila U. Deshmukh, J.]
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