Suresh Gulabraigurnani vs Nil
2022 Latest Caselaw 7432 Guj

       C/FA/2121/2022                             ORDER DATED: 26/08/2022




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                    R/FIRST APPEAL NO. 2121 of 2022
                                 With
      CIVIL APPLICATION (FOR ADDITIONAL EVIDENCE) NO. 1 of 2022
                   In R/FIRST APPEAL NO. 2121 of 2022
==========================================================
                        SURESH GULABRAIGURNANI
                                Versus
                                  NIL
==========================================================
Appearance:
ANURAG R RATHOR(9315) for the Appellant(s) No. 1,2
JENIL M SHAH(7840) for the Appellant(s) No. 1,2
 for the Defendant(s) No. 1
==========================================================

     CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA

                              Date : 26/08/2022
                               ORAL ORDER

1. Learned advocate Mr.Jenil Shah appearing for the appellants has submitted that the appellants had filed application being Civil Misc. Application No.17 of 2021 before the lower court (2 nd Additional Senior Civil Judge, Gandhidham-Kachchh) under Section 276 of the Indian Succession Act, 1925 (for short "the Act") for grant of probate on Will, however, the same has been rejected despite no objection was taken by anyone to such application.

2. Learned advocate Mr.Shah has submitted that only lacuna on the part of the appellants before the trial court was that the statement of attesting witness was not produced as per Section 26 of the Evidence Act. It is submitted that by the Civil Application No.1 of 2022, the appellants have produced the statement of attesting witnesses Vasudev Alimchand Rupani and Ishwar Nainikram Jiandani, wherein they have specifically

C/FA/2121/2022 ORDER DATED: 26/08/2022

stated that the Will was signed by late Gulabrai Motumal Gurnani on 04.01.2016 in their presence and they had accordingly signed as witnesses. He has also placed reliance on the judgment of the Supreme Court in the case of Kanwarjit Singh Dhillon vs. Hardyal Singh Dhillon and Others, (2007) 11 SCC 357, more particularly paragraph nos.11, 12 and 13 and has submitted that the court, in which the application for probate is filed, 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. It is further submitted that the Supreme Court has held that the question whether a particular bequest is good or bad is not within the purview of the probate court. However, he has submitted that, in the present case, the probate court has acted in total contravention of the law settled by the Supreme Court. Thus, he has submitted that the matter may be remanded.

3. I have heard the learned advocate Mr.Shah. The impugned judgment and order is also perused by this Court.

4. The aforesaid facts are not in dispute. It is asserted by the present appellants that there was no objection of anyone registered before the trial court in the petition filed by the present appellants seeking probate on Will. However, the only lacuna, which it appears to have been done the statements of the attesting witnesses to the Will were not produced. The probate court appears to have acted beyond the scope of Section 276 of the Act and the law enunciated by the Apex Court in the aforenoted judgment in case of Kanwarjit Singh Dhillon (supra) has not been followed.

C/FA/2121/2022 ORDER DATED: 26/08/2022

5. Under the circumstances, the impugned judgment and order dated 01.04.2022 is hereby set aside. The original Civil Misc. Application No.17 of 2021 is restored to its original file. The probate court is directed to pass fresh order after considering the statements of the attesting witnesses, which are referred hereinabove, within a period of two months.

6. The appeal is allowed. As a sequel, civil application does not survive and the same is disposed of accordingly. Direct service is permitted.

(A. S. SUPEHIA, J) ABHISHEK/49