Sunil Kennykumar Nihalani vs Motikumar Harchandrai Nihalani
2021 Latest Caselaw 15905 Guj

    C/SCA/16692/2019                               CAV JUDGMENT DATED: 08/10/2021




               IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                R/SPECIAL CIVIL APPLICATION NO. 16692 of 2019
                                     With
                  CIVIL APPLICATION (FOR STAY) NO. 1 of 2021
               In R/SPECIAL CIVIL APPLICATION NO. 16692 of 2019

FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE B.N. KARIA
==========================================================

1 Whether Reporters of Local Papers may be allowed No to see the judgment ?

2      To be referred to the Reporter or not ?                         No

3      Whether their Lordships wish to see the fair copy               No
       of the judgment ?

4      Whether this case involves a substantial question               No

of law as to the interpretation of the Constitution of India or any order made thereunder ?

========================================================== SUNIL KENNYKUMAR NIHALANI Versus MOTIKUMAR HARCHANDRAI NIHALANI ========================================================== Appearance:

MR. D.C.DAVE, LD. SR.COUNSEL FOR MR JIGAR M PATEL(3841) for the Petitioner(s) No. 1,2

MR SP MAJMUDAR(3456) for the Respondent(s) No. 1 NOTICE UNSERVED(8) for the Respondent(s) No. 2,3 SHASHVATA U SHUKLA(8069) for the Respondent(s) No. 1 ========================================================== CORAM:HONOURABLE MR. JUSTICE B.N. KARIA

Date : 08/10/2021

CAV JUDGMENT

Learned advocate appearing for the petitioners requested to

delete the respondents No. 2 and 3 as they are not proper party.

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Learned advocate appearing for the respondents has no

objection if permission to delete the respondent Nos. 2 and 3 is

granted. Permission as sought for stands granted.

1. Present petitioners are the Original Opponent Nos. 1 and 4 in

Civil Misc. Application No. 97 of 2015 before the trial Court have

challenged legality and validity of the order passed in application

below Exh.54 by the learned 28th Additional Senior Civil Judge,

Vadodara on 31.8.2019 filed by them and requested to allow the

said application below Exh.54.

2. The short facts leading to the present case are as under:-

2.1 Respondent No.1 filed probate application being Probate

Application No. 97 of 2015 on 22nd June, 2015 before the Court of

learned Senior Civil Judge, Baroda, seeking probate/letters of

administration of Will dated 12.2.2015 alleged to have been

executed by the father of the petitioners in favour of respondent

No.1. Upon issuance of public notice, present petitioners appeared

before the Court and filed their objections with regard to issuance of

Probate/Letters of Administration in favour of applicant -respondent

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No.1 on the ground that Will dated 12th February, 2015 was forged

and concoted one. The petitioners also filed Special Civil Suit No.

242 of 2016 before the Court of learned Principal Senior Civil

Judge, Vadodara on 25th June, 2016 with a prayer to pass decree of

cancellation of forged Will dated 12th February, 2015 alleged to have

been executed by their father in favour of respondent No.1. They

further prayed for decree of permanent injunction restraining the

respondent No.1 from transferring the disputed properties. On 27 th

August, 2018, petitioners filed an application below Exh.54 in Civil

Misc. Application No. 97 of 2015 with a prayer for consolidation of

two proceedings i.e. Civil Misc. Application No. 97 of 2015 and

Special Civil Suit No. 242 of 2016 and for recording common

evidence of both these proceedings. Petitioners also filed an

application below Exh. 55 seeking hearing of the application below

Exh. 54 prior in point of time before the proceedings further with the

probate proceedings. Respondent No.1 opposed the said application

below Exh. 54 filed by the petitioners. After hearing the parties,

learned 28th Additional Senior Civil Judge, Vadodara rejected the

application below Exh.54 filed by the petitioners vide order dated

31st August, 2019 . Hence, this petition.

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3. Heard learned advocates appearing for the respective parties.

4. Learned advocate for the petitioners has strongly argued that

the reasons arrived at by learned Judge rejecting the application

below Exh.54 are erroneous and illegal. That, the objection filed by

the present petitioners in the Probate Application No. 97 of 2005

and ground raised in the plaint of Special Civil Suit No. 242 of 2016

are bound to be same as to how the Will dated 12 th February 2015

was executed by the father of the petitioners in favour of respondent

No.1 and it is forged and concocted one. That, two more prayers

were made by the petitioners in respect of possession and restraining

defendants in transferring the suit properties of Special Civil Suit

No. 242 of 2016 filed by them. That, learned trial Court has

exceeded the jurisdiction by rejecting the application below Exh.54

as no prejudice would have been caused to respondent No.1. That,

the consolidation of two proceedings would have prevented

multiplicity of proceedings between the same parties. That,

observations made by trial Court in Special Civil Suit No. 242 of

2016 which was filed subsequent in point of time (after one year)

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then the Probate Proceedings i.e. Civil Misc. Application No. 97 of

2015 are not proper for rejection of the application, as common

issues were involved in both the proceedings. Therefore, it was

proper that common evidence is led by both the parties so as to avoid

the possibility of two contradictory judgements. In support of his

arguments, learned advocate appearing for the petitioner has relied

upon the decision rendered in case of Smt. Multivabhujiw/o.

Goswami Goverdhaneshji Girdharlalji Vs. Smt. Kalindivabhuji

and others reported in AIR 1994 GUJARAT 42. Hence, it was

requested by learned advocate for the petitioners to allow the present

petition.

5. Per contra, learned advocate appearing for the respondents has

strongly objected the submissions made by the petitioners and

submitted that this petition itself is required to be dismissed on the

ground of material suppression of facts as the petitioners have

suppressed the filing of an application under section 10 of the Code

of Civil Procedure, 1908 for staying the proceedings of Special

Civil Suit No. 242 of 2016. It is further submitted that Probate

Application i.e. Civil Misc. Application No. 97 of 2015 was filed on

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22th June, 2015 wherein, objections were filed by the petitioners on

30th December, 2015. That, Special Civil Suit No. 242 of 2016 was

filed on 25th June, 2016. That, Probate Application i.e. Civil Misc.

Application No. 97 of 2015 was filed previously by respondent No.1

Therefore, application for stay of trial/proceeding of the Civil Suit

filed by the petitioners was required under Section 10 of Code of

Civil Procedure, 1908. That, application below Exh.54 for

consolidation of Civil Misc. Application No. 97 of 2015 is not

maintainable as there is no provision for consolidation under the

Code of Civil Procedure, 1908. That, Probate Court has exclusive

jurisdiction to decide the issues regarding the legality and validity of

the Will. That, the proceedings of the Probate Application would be

carried out in the manner prescribed under the Indian Succession

Act, 1925. That, Probate Court alone has exclusive jurisdiction in

respect of matters regarding the legality and validity of the Will.

That, such an order as prayed by the petitioners in their application

below Exh.54 cannot be passed without the consent of parties in

both the proceedings. That, consent of parties is a pre-requisite for

any order of consolidation. That, order passed by the trial Court

refusing consolidation is a discretionary order which does not call

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for any interference under the supervisory jurisdiction of this Court

under Article 227 of the Constitution of India. That, Special Civil

Suit No. 242 of 2016 was filed by the petitioners subsequent point of

time (after one year) after probate proceedings being Civil Misc.

Application No. 97 of 2015 and these two proceedings do not

deserves to be clubbed together. In support of his arguments,

learned advocate has relied upon the decision rendered in case of

Chiranjilal Shrilal Goenka Vs. Jasjit Singh and Others reported

in (1993) 2 SCC 507. Hence, it was requested by learned advocate

appearing for the respondent No.1 to dismiss the petition.

6. Having heard learned advocates appearing for the respective

parties and from the contents of the application below Exh.54,

probate proceedings being Civil Misc. Application No. 97 of 2015

filed by respondent No.1 and contents of the plaint of Special Civil

Suit No. 242 of 2016 filed by the present petitioners, it appears that

the relief was sought by the respondent No.1 in its application for

probate to the effect that present petitioners who are executors of the

Will, have renounced to act as executor of the Will and letter of

administration with authenticated true copy of Will be granted in

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favour of the respondent No.1 who is ligatee/beneficiary of the Will

with all the recognized rights to the properties and to take/recover all

the yielding, interest, mesne profits and all the benefits of the

property which was annexed to it or which may be earned in future

till its realization. In Special Civil Suit No. 242 of of 2016 preferred

by the petitioners, relief was sought that Will dated 12 th February,

2015 be declared as ab initio, null and void along with ancillary

proceedings. It is not in dispute that present petitioners have filed

their written objections vide Exh. 27 by the petitioner in probate

application. in Probate Application. If we consider the averments

made in the plaint of Special Civil Suit No. 242 of 2016, identical

objections were raised in their written objections below Exh. 27 by

the petitioners in probate application. It is not in dispute that Probate

Application was filed on 22nd June, 2015. Subsequently, Special

Civil Suit No. 242 of 2016 was filed by the present petitioners in

June, 2016. Written Objections were submitted below Exh. 27 by the

petitioners in Probate Application on 30th December, 2015. Special

Civil Suit No. 242 of 2016 was filed after one year from the date of

filing of the Probate Application by respondent No.1 and after six

months from the date of filing of written objections in Probate

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Application below Exh.27. The question of genuineness of the Will

executed by father of the petitioners dated 12 th February, 2015 would

require to be adjudicated by the Court.

7. This Court in case of Smt. Multivahuji W/o. Goswami

Goverd-haneshji Girdharlalji (Supra) has dealt with the similar

question of Probate Application preferred by the petitioners on 25 th

January, 1982 under the provisions of Indian Succession Act and

Special Civil Suit No. 8 of 1982 filed by the Objector for partition of

coparcenary properties inter alia contending that movable and

immovable properties left behind by deceased were ancestral

properties in his hand and son of deceased, has his share in

coparcenary properties. After almost 10 years, on 20th February,

1992, application below Exh.152 was filed by the objector

contending that application for probate filed by widow of deceased

as well as Special Civil Suit No. 9 of 1982 filed by the respondents

for partition of the ancestral property should be consolidated and

tried together inasmuch as widow of deceased was claiming under a

Will and she had applied for probate while respondent have

challenged the genuineness, legality and validity of the Will. Both

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in their reply as well as in the substantive suit filed by them for

partition of the property issues arisen in both the proceedings

between the parties are substantially same and findings on such

issues in one proceeding are likely to affect the finding in another

proceedings, and therefore, the application for probate as well as

Special Civil Suit should be consolidated and tried together. In case

of Smt. Multivahuji W/o. Goswami Goverd-haneshji

Girdharlalji (Supra), Hon'ble Apex Court has observed as under:-

24. From the nature of the aforesaid two proceedings it can be said that some of the issues which arise in both the proceedings as regards capacity of the testator at the time when he made the will and as regards due execution and attestation of the will and as regards consideration of allegedly suspicious circumstances surrounding the will, common question of facts would arise in both the proceedings and evidence in both the proceedings would be common. However, the evidence as regards nature of the property as to whether it was self- acquired or ancestral and as regards title of the testator over it and also as regards availability of such property for partition by metes and bound would be the questions which would arise in special civil suit only.

26. It is true that the Civil Procedure Code does not provide for joint trial of the suits, but at the same time it is now well accepted position of law that Under Section 151 of the Code of Civil Procedure in appropriate cases an order for consolidation of the cases can be made. The Courts have even ordered joint trial of the cases. A Court has inherent power ex debito justitiae to consolidate suits, where it is in the ends of justice to do so to avoid needless expenses and inconvenience to parties. In deciding whether two or more suits should be consolidated or not, the whole question is whether or not, in the long run, it will be expeditious and advantageous to all concerned to have the two suits tried together as analogous cases. Where it appears that there is sufficient unity, or similarity in the matter in issue in the suits or that the determination of the suits rests mainly on a common question, it is convenient to have them tried as analogous cases.

C/SCA/16692/2019 CAV JUDGMENT DATED: 08/10/2021

27. However, at the same time it shall have to be kept in mind that the jurisdiction of the Court in contentious probate proceeding is exclusive and limited and for the issues which squarely fall within the jurisdiction of the probate Court, the judgment of the probate Court would operate as res judicata. Therefore, in my opinion it would be just and proper to see that the probate Court proceed with the issues which exclusively fall within its jurisdiction. Once the evidence is recorded on the issues which exclusively fall within the jurisdiction of the probate Court, the Court shall proceed to record evidence on issues which arise in the special civil suit and which do not fall within the jurisdiction of the probate Court.

8. Another decision rendered in case of Chiranjilal Shrilal

Goenka (Deceased) Through LRS. Vs. Jasjit Singh and others

reported in (1993) 2 SCC 507 relied upon by learned advocate for

the respondent, in para 15, Hon'ble Apex Court referred the case of

Ishwardeo Narain Singh Vs. Smt. Karnta Devi, observed as under :-

"15. In Ishwardeo Narain Singh v. Smt Kamta Devi this Court held that the court of probate is only concerned with the question as to whether the document put forward as the last will and testament of a deceased person was duly executed and attested in accordance with law and whether at the time of such execution the testator had sound disposing mind. The question whether a particular bequest is good or bad is not within the purview of the probate court. Therefore the only issue in a probate proceedings relates to the genuineness and due execution of the will and the court itself is under duty to determine it and preserve the original will in its custody. The Succession Act is a self-contained code insofar as the question of making an application for probate, grant or refusal of probate or an appeal carried against the decision of the probate court. This is clearly manifested in the fascicule of the provisions of the Act. The probate proceedings shall be conducted by the probate court in the manner prescribed in the Act and in no other ways. The grant of probate with a copy of the will annexed establishes conclusively as to the appointment of the executor and the valid execution of the will. Thus it does no more than establish the factum of the will and the legal character of the executor. Probate court does not decide any question of title or of the existence of the property itself.

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9. Another judgment relied upon by learned advocate for the

respondent No.2 rendered in case of Bhopo Fakirbhai (minor) and

another Vs. Bai Mani d/o Jijibhai Bechardas and others reported

in AIR 1961 Guj 92 wherein, it is observed as under :-

4. It is not open to the Court to hear witnesses in one suit only and to treat evidence in one suit as evidence in another without the consent of the parties unless the Court has authority to do so under the provisions of the Evidence Act. The learned counsel for the opponents has not pointed out any provisions in the Evidence Act giving the Court such powers to treat the evidence in one suit as evidence in the other suit notwithstanding the issues may be different and notwithstanding that the parties may not be common as in this case. He, however, relies on the case of Kashi Prosad Singh v. Secy. of State for India in Council, ILR 29 Cal 140, which however relates to the consolidation of appeals and deals more or less with the question of Court-fees. In appeal, there is no question of taking evidence. The Calcutta High Court's decision is not a decision on the question of consolidation of suits. Whatever principles may apply to the consolidation of appeals, I am of the opinion that evidence cannot or ought not to be heard in common in suits without the consent of the parties.

10. In another decision rendered in case of Dalip Singh Vs. State

of Uttar Pradesh and others reported in (2010) 2 SCC 114 in para

4, Hon'ble Apex Court has referred the case of Welcome Hotel Vs.

State of A.P. wherein, it was held that a party which has misled the

Court in passing an order in its favour is not entitled to be heard on

the merits of the case. .

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11. The judgment relied upon by learned advocate for the

respondent of the Hon'ble Apex Court would certainly binding to

this Court. Here, in the instant case common question is involved in

both the proceedings initiated by the respondent No.1 in Probate

Application No. 97 of 2015 and Special Civil Suit No. 242 of 2016

filed by the petitioners. In both the proceedings, validity of the Will

dated 12th February, 2015 executed by the father of the petitioners in

favour of respondent No.1 is to be adjudicated. The parties in two

proceedings filed by them are common. Similar objections were

filed by the present petitioners in Probate Application No. 97 of

2015 vide exh. 27. It is also true that Special Civil Suit No. 242 of

2016 was filed by the present petitioners after one year of filing of

the Probate Application No. 97 of 2015 by the respondent No.1. It is

pertinent to note that both the proceedings i.e. Civil Misc.

Application No. 97 of 2015 as well as Special Civil Suit No. 242 of

2016 are pending before Curt of learned Sr. Civil Judge, Vadodara.

It is true that Probate Court is Court of exclusive jurisdiction with

respect of certain issues and squarely fall within its jurisdiction. The

probate proceedings may decide the issues for trial (a) whether at the

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time of such execution, the testator had sound deposing mind when

he made will and (b) Whether Will was duly executed and attested.

12. The second proceedings, being Special Civil Suit No. 242 of

2016, filed by the present petitioners challenging the legality and

validity of the Will dated 12th February, 2015 shall have to be gone

into by the Court of Senior Civil Judge. In the present case it is not

dispute that both the proceedings are pending before the Court of

learned Senior Civil Judge, Vadodara. In two proceedings, it can be

said that some of the issues which arise in both the proceedings as

regards capacity of the testator at the time when he made will and

as regards due execution and attestation of the will and as regards

consideration of allegedly suspicious circumstances surrounding the

Will. Common question of facts would arise in both the proceedings

and evidence in both the proceeding would be common. Under the

circumstances, when two proceedings, which arise out of the same

transaction or where substantial evidence which is to be led is

common a joint trial of such proceedings is advisable so that

considerable public time and expenses would be saved if the two

proceedings are tried jointly and the evidence is recorded in one of

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the two proceedings. It would also avoid inconvenience to the

witnessed figuring in two proceeding as they will not be required to

reappear and to give evidence in another proceedings which would

also be helpful to avoid multiplicity in the trial of the same issues

and to avoid conflict of decision. It is therefore, desirable that suits

filed by the present petitioners and probate application i.e. Civil

Misc. Application No. 97 of 2015 are jointly tried by recording

common evidence in Probate Application . However, it shall be kept

in mind the jurisdiction of the Court is contentious. Probate

proceedings is exclusive and limited and for the issues which

squarely falls within the jurisdiction of the probate Court the

judgement of the probate court would operate as res judicata.

Therefore, it would be just and proper to see that the probate court

will proceed with the issues, which exclusively fall within its

jurisdiction. Once the evidence is recorded on the issues which

exclusively fall within the jurisdiction of the probate court and

common issues in Special Civil Suit No. 242 of 2016, the Court shall

proceed to record the evidence on remaining issues which arise in

Special Civil Suit No. 242 of 2016 which do not fall within the

jurisdiction of the probate court. It would be necessary to see that the

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respondent No.1 in probate proceedings would be called upon to

begin evidence and his evidence is recorded on all the issues to the

probate proceedings first in point of time. In the result, this petition

is hereby allowed and order passed in application below Exh. 54

and 55 in Civil Misc. Application No. 97 of 2015 dated 31 st August,

2019 is quashed and set aside. Both the proceedings shall be tried

by the Court, wherein probate proceedings are pending.

It would be open for the Court to decide the application under

Section 10 of C.P.C. independently.

After pronouncing this judgement, learned advocate appearing

for the respondent has requested to stay this judgement passed by

this Court.

Learned advocate appearing for the petitioners has objected

that the otherside is facing trial before the trial Court day to day.

Therefore, prayer made by the learned advocate for the respondent

cannot be allowed by this Court.

Considering the issue involved in Special Civil Suit No. 242

of 2016, request of the learned advocate for the respondent stands

rejected.

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ORDER IN CIVIL APPLICATION NO. 1 of 2021

In view of the order passed in the main matter i.e. Special

Civil Application No. 16692 of 2019, this application does not

survive and stands disposed of accordingly.

(B.N. KARIA, J) BEENA SHAH