Smitaben Yogesh Patel vs Anshuben Hemantbhai Amin
2021 Latest Caselaw 6183 Guj

       C/FA/3554/2019                                            ORDER DATED: 17/06/2021


             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                        R/FIRST APPEAL NO. 3554 of 2019

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                            SMITABEN YOGESH PATEL
                                    Versus
                          ANSHUBEN HEMANTBHAI AMIN
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Appearance:
MR SP MAJMUDAR(3456) for the Appellant(s) No. 1,2
SHASHVATA U SHUKLA(8069) for the Appellant(s) No. 1,2
for the Defendant(s) No. 3
RULE UNSERVED(68) for the Defendant(s) No. 1,2,3.1,3.2,3.3
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 CORAM:HONOURABLE MR. JUSTICE N.V.ANJARIA

                                  Date : 17/06/2021

                                     ORAL ORDER

Heard learned advocate Mr.S.P. Majmudar for the appellants. Though served, none appeared for the respondents.

2. The present First Appeal is directed against judgment and order dated 29th March, 2019 by learned 2nd Additional Senior Civil Judge, Gandhinagar in Civil Miscellaneous Application No.112 of 2017, which were the proceedings initiated by the applicants- appellants herein under Section 276 of the Indian Succession Act, 1955.

3. It was the case of the applicants-appellants that husband of applicant No.1 and father of applicant No.2 namely Yogesh Chandrakant Patel died on 04th February, 2011. Father of the respondents and father-in-law of applicant No.1 and grandfather of applicant No.2 Chandrakant C. Patel died on 06th March, 2009. The grandmother Sushilaben died on 10th July, 2001. In other words, Sushilaben Patel and

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Yogeshbhai Patel died before the death of Chandrakant Patel. It was claimed that the applicants are the only straight-line heirs of deceased Chandrakant Patel in capacity of daughter-in-law and grandson.

3.1 It was stated that said Chandrakant Patel had, during his life time, prepared a Will dated 26th April, 2001 which was notarized on 18th January, 2002, whereunder the applicants-appellants herein were held to be the heirs to get the properties of deceased Chandrakant Patel.

3.2 It was stated that the properties included

(i) Tenement named Suyog at Plot No.91, Sector 19, Gandhinagar; (ii) Plot No.33/B bearing Revenue Survey No.358 at Village Ognaj, Taluka Daskroi, District Ahmedabad and shed therein and other properties including the immovable properties in the bank accounts which included Savings Bank Account, Public Provident Fund, Fixed Deposits, Demat Account, Mutual Funds; list of which figured and was also reproduced by learned Judge.

3.3 It appears that public notice was ordered to be issued by the Court which was published in newspaper Divya Bhaskar dated 08th June, 2018. Nobody responded to the said public notice and no objections were received to the prayer for issuance of Probate, observed the Court in its order. The court below thereafter proceeded to frame the issues. Issue whether deceased Chandrakant Patel had given properties to the applicants under the Will dated 24th

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June, 2001, was answered in negative and consequently, as per the findings of second issue, the applicants were held not entitled to get the Probate. The applicants appear to have submitted their written submissions at Exh.40 and the copy of the Will, death certificate of deceased Chandrakant Patel, death certificate of deceased Sushilaben, death certificate of deceased Yogeshbhai, copy of the Will prepared by Sushilaben and other relevant documents of identification and property related documents were produced.

3.4 An affidavit was also filed showing the pedigree of deceased Chandrakant Patel. It appears that the Court observed that one of the affidavits dated 05th March, 2015 was by one Mahendrakumar Umedrai Purohit, in which it was stated that he had no knowledge about details mentioned in the Will. The court below thereafter reasoned that the applicants did not lead evidence in respect of the contents of the Will though the affidavit of said Shri Purohit stated as above. According to the court below, under the provisions of the Evidence Act, the attesting witness is required to be examined to prove the Will.

3.5 Still another reason was weighed with the Court that the original copy of the Will was not produced. On the basis of the said aspect, the court below concluded that the applicants have failed to prove the contents of the Will and no evidence was furnished about the properties mentioned in the Will. Consequently, application for Probate filed by the

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applicants-appellants herein came to be rejected by the learned Judge as per the impugned order.

4. Assailing the impugned order and the reasons supplied for rejection of the application, learned advocate for the appellants submitted that observations of learned Judge that witness Mahendrakumar Purohit did not say anything in his affidavit about the contents of the Will, were misdirected inasmuch as attesting witnesses need know the contents of the Will. It was submitted that signatures of the attesting witnesses is to be relied on only for the purpose of execution of the Will. He relied on decision of the Apex Court in N.M.A. Abdul Mithalif v. Syed Bibi Ammal [1980 (supp) SCC 771].

4.1 The second reason weighed with the court below to reject the application was that the applicants had not produced the original copy of the Will. In this regard, it was submitted that the original Will was there and available, however could not be produced out of inadvertence and the copy only was produced at Exh.3/5. Learned advocate for the appellants submitted that if opportunity is given, appellants are ready to place on record the original copy as well.

4.2 In view of above, the appellants deserve to be granted opportunity to produce original copy of Will in support of their case. The court below may reconsider the entire order taking on record original copy of the Will which may be produced by the appellants.

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5. As a result of above discussion, impugned judgment and order dated 29th March, 2019 rejecting Civil Miscellaneous Application No.112 of 2017 is hereby set aside. The proceedings are remanded to the court of learned 2nd Additional Senior Civil Judge, Gandhinagar for deciding afresh. The appellants shall be permitted to produce original copy of the Will on record. They are also permitted to lead any further evidence or documents which may be relevant in the proceedings. Thereafter fresh decision shall be taken by the court below within a period of five months from the date of receipt of copy of this order.

6. This Court has not expressed anything on the merits of the case of either side.

7. The present appeal is allowed in the above terms and to the aforesaid extent.

(N.V.ANJARIA, J) ANUP