Acharya Arun Harikrishna vs No Respondent
2023 Latest Caselaw 1426 Guj

      C/FA/212/2003                                 JUDGMENT DATED: 10/02/2023




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                         R/FIRST APPEAL NO. 212 of 2003

FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE NIKHIL S. KARIEL

==========================================================

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 ?

==========================================================
                      ACHARYA ARUN HARIKRISHNA & 3 other(s)
                                    Versus
                               NO RESPONDENT
==========================================================
Appearance:
MR JAMSHED KAVINA, ADVOCATE for MR PC KAVINA(400) for the
Appellant(s) No. 1,2,3,4
==========================================================
     CORAM:HONOURABLE MR. JUSTICE NIKHIL S. KARIEL

                                Date : 10/02/2023
                                ORAL JUDGMENT

1. Heard learned Advocate Mr. Jamshed Kavina on behalf of the

appellants.

2. By way of the present appeal, the appellants challenge judgment and

order passed by the learned Civil Judge, Junior Division, Halvad, in probate

C/FA/212/2003 JUDGMENT DATED: 10/02/2023

application being Civil Misc. Application No. 3 of 1999, dated 31.07.2002,

whereby the learned Civil Court had rejected the probate application.

3. Learned Advocate Mr. Jamshed Kavina for the appellants would

submit that the impugned judgment and order requires interference, more

particularly since the learned Civil Court had completely misdirected itself.

Learned Advocate Mr. Kavina, at the outset, would draw the attention of

this Court to the probate application and would submit that the cause title

of the probate application would show the applicants No. 1 to 3 had

preferred the probate application through applicant No.4-power of attorney

holder Smt. Jyotiben. Learned Advocate would thereafter draw the attention

of this Court to the prayer sought for in the probate application, which

would show that the probate with regard to the properties mentioned in a

Will dated 02.05.1991 of deceased Muktaben Acharya was requested to be

granted in favour of the applicants of the probate application. Learned

Advocate would submit that a perusal of the cause title and prayer clause

making it abundantly clear that the applicants-appellants herein had

preferred the probate application through their power of attorney and

whereas the prayer clause made it specifically clear that the probate was to

be granted in favour of the applicants. Learned Advocate would submit that

inspite of the same, one of the considerations on which the probate

application had been rejected by the learned Civil Court was that in some of

C/FA/212/2003 JUDGMENT DATED: 10/02/2023

the exhibits with the probate application, the power of attorney appears to

have stated that probate may be issued in her favour.

4. Learned Advocate Mr. Kavina would also draw the attention of this

Court to the second consideration which weighed with the learned Civil

Court was that the applicants-appellants herein did not produce any material

to show that the properties of which probate was sought for, were of the

ownership of the testator or not. Learned Advocate in this regard would rely

upon the observations of the Hon'ble Apex Court in case of Pasupati Nath

Das (Dead) Vs. Chanchal Kumar Das (Dead) By legal Representatives and

Others, reported in (2018) 18 SCC 547. Learned Advocate would submit

that the Hon'ble Apex Court has in the above judgment observed that while

examining an application for grant of probate in a probate proceedings, the

scope of the matter is primarily and principally regarding the genuineness of

the Will in question and whereas a question of title cannot be gone into at

that stage. Learned Advocate relying upon the law laid down by the Hon'ble

Apex Court has requested this Court to set aside the impugned decision

passed by the learned Civil Court.

5. Heard learned Advocate Mr. Kavina and perused the record and

proceedings.

6. The following questions arise for consideration of this Court :

       C/FA/212/2003                                   JUDGMENT DATED: 10/02/2023




        (i)      Whether the learned Civil Court had erred in not granting

probate in favour of the applicants with regard to the properties as

mentioned in the probate application.

(ii) Whether the learned Civil Court ought to have gone into the

aspect of title in an application for grant of probate.

        (iii)    What would be the final order.


6.1     My answers to the issues raised hereinabove are as follows :


        (i)      In Affirmative.


        (ii)     In Negative.


        (iii)    As per final order.

7. Since the above issues are co-relatable, the reasons for arriving at the

conclusion would be discussed jointly hereinbelow :

8. Issue Nos. 1 and 2 : It appears that the probate application was filed

by the applicants-appellants herein with regard to the last Will and testament

of deceased Muktaben Acharya. It would further appear that no one had

objected to grant of the probate, rather some of the legal heirs of late

Muktaben Acharya had tendered affidavits in favour of the applicants.

C/FA/212/2003 JUDGMENT DATED: 10/02/2023

9. It appears that the learned Civil Court had rejected the probate

application mainly on two grounds i.e. (i) ambiguity with regard to the

request made, more particularly in co-relation with the power of attorney

holder and (ii) with regard to the applicants-appellants not providing any

document with regard to ownership rights of the deceased in the properties

of which probate was sought for.

10. Insofar as the aspect with regard to the power of attorney is

concerned, this Court has perused the probate application, more particularly

the cause title as well as prayer clause. From the cause title and the prayer

clause of the probate application, it becomes apparent that the applicants

No. 1 to 3 -appellants No.1 to 3 herein had contested the litigation through

their power of attorney holder- applicant No.4- appellant No.4 herein and

whereas though it appears that power of attorney was a close relative of the

said applicants, yet at no stage in the probate application, there is any

reference to any reliefs sought for in favour of the power of attorney holder.

11. It also requires to be noted here that while the probate application at

Paragraph No. 10 inter alia states that the application has filed through

power of attorney since the applicants are out of India and whereas

according to the learned Civil Court, the said statement does not appear to

be true since the applicant No. 3 appears to be residing at Bangalore. In the

C/FA/212/2003 JUDGMENT DATED: 10/02/2023

considered opinion of this Court, nothing turned on the said discrepancy as

far as the facts are concerned and whereas it would appear that even in the

cause title of the probate application, the address of the applicant No.3 was

mentioned as residing at Bangalore, whereas address of the applicants No. 1

and 2 were out side India. It thus appear that while a litigation could be

prosecuted through a power of attorney and the power of attorney holder is

not required to provide any justification as to why the power of attorney

was required to be entered into and why the litigation was required to be

contested through the power of attorney, yet the applicants had mentioned

the same in the probate application as regards the applicants residing out

side India, as against the same the applicants No. 1 and 2 residing out side

India and stating that the applicant No.3 residing out side the State. Thus, it

appears that the said aspect was a mere typographical error and whereas

nothing turned on the same, yet it appears that the said aspect had weighed

with the learned Civil Court.

12. It also requires to be mentioned that in view of the very clear

averments made in the probate application, more particularly at the cause

title as well as in the prayer clause as regards the probate application being

prosecuted through power of attorney-applicant No.4 and the probate being

sought for in favour of the applicants No. 1 to 3, yet on account of some

ambiguity in certain miscellaneous applications as regards probate being

C/FA/212/2003 JUDGMENT DATED: 10/02/2023

sought for in favour of the power of attorney, in the considered opinion of

this Court, the learned Civil Court ought not to have rejected the probate

application for such minor technical issues. As observed hereinabove, the

intent of the parties is to be culled out from the pleadings of the probate

application and since as noted hereinabove, the probate application being

unambiguous about the probate being sought for by the applicants through

their power of attorney for themselves, the learned Civil Court appears to be

absolutely unjustified in having rejected the probate application.

13. Insofar as the aspect of the applicants-appellants herein not having

produced any document to show that the testator was indeed having right in

the properties which she had bequeathed, in the considered opinion of this

Court, such an aspect was not for the Court to have looked into or

appreciated at the stage of grant or refusal of probate application. A

beneficiary of a Will does not acquire any better rights in the bequeathed

property, then what was available to the testator in case the testator

bequeaths to a beneficiary a property upon which a testator here did not

have any right, title or interest, then merely on account of the bequeathment

of the property through a Will, would not confer upon the beneficiary a

better title over the property then what was held by the testator. Thus, at the

stage of issuance of probate, the learned Civil Court was not justified for

seeking documents with regard to the right of the testator upon the

C/FA/212/2003 JUDGMENT DATED: 10/02/2023

properties bequeathed.

14. At this stage, this Court deems it appropriate to refer to and rely

upon the observations of the Hon'ble Apex Court in case of Pasupati Nath

Das (Dead) (supra), more particularly Paragraph No. 14 thereof, which is

reproduced hereinbelow for benefit.

"14. We must, at the outset, say that the scope of the matter arising from Probate proceedings is very limited. The scope of the matter is primarily and principally regarding the genuineness of the execution of the testament or Will. This part has been succinctly dealt with in a decision rendered by this Court in Krishna Kumar Birla v. Rajendra Singh Lodha. Paragraphs 57, 66 and 67 of the said decision spell out the scope of the enquiry in Probate proceedings as under:

"57. The 1925 Act in this case has nothing to do with the law of inheritance or succession which is otherwise governed by statutory laws or the custom, as the case may be. It makes detailed provisions as to how and in what manner an application for grant of probate is to be filed, considered and granted or refused. Rights and obligations of the parties as also the executors and administrators appointed by the court are laid down therein. Removal of the existing executors and administrators and appointment of subsequent executors are within the exclusive domain of the court. The jurisdiction of the Probate Court is limited being confined only to consider the genuineness of the will. A question of title arising under the Act cannot be gone into the (sic probate) proceedings. Construction of a will relating to the right, title and interest of any other person is beyond the domain of the Probate Court.

* * *

66. We may, however, at the outset, notice a decision of this Court in Elizabeth Antony v. Michel Charles John Chown Lengera which is binding on us. Therein, the testatrix viz. one Mary Aline Browne, was the wife of one Herbet Evander Browne, the eldest son of John Browne. Mary died on 28-3-

C/FA/212/2003 JUDGMENT DATED: 10/02/2023

1972. She had executed a will on 12-3-1962. An application for grant of a letter of administration with a copy of the will annexed was filed by Michel. Petitioner Elizabeth Antony and her husband Zoe Enid Browne filed caveats on the plea that the said will was a forged document. The petitioner therein also claimed that her daughter Browne had executed a will on 23-6-1975 and she had executed a deed of gift in favour of the petitioner. She also claimed herself to be a trustee of John Browne Trust. The Probate Court held that they had no caveatable interest. Caveatable interest, therefore, was claimed as an executor and legatee of the will executed by Zoe Enid Browne as also a deed of gift in respect of one item of the estate executed in their favour. Caveatable interest was also claimed on the premise that the petitioner was appointed a trustee of John Browne Trust. This Court noticed a large number of High Court judgments. It was, however, opined that the petitioner therein failed to establish a caveatable interest stating:

"6. ... We have perused the entire order of the trial court in the context. Admittedly neither the original nor a copy of the will said to have been executed by Zoe Enid Browne, was filed. Now coming to the trust, it is in the evidence of PW 1 that John Browne Trust has come to an end in March 1972 and the same was not in existence. The trial court has considered both the documentary and oral evidence in this regard and has rightly held that the petitioner has no existing benefit from the trust. Likewise the registered gift deed or a copy of it has not been filed. Before the learned Single Judge of the High Court also same contentions were put forward. The learned Judge observed that from the objections filed by the caveator she desires the court in the probate proceedings to uphold her title on the strength of a gift deed and the trust deed. It is observed:

'Equally, the petitioner has not placed before the court the will dated 23-6-1975 stated to have been executed by Zoe Enid Browne to establish that under the will dated 12-3-1962 stated to have

C/FA/212/2003 JUDGMENT DATED: 10/02/2023

been executed by Mary Aline Browne some interest given to the petitioner under the will dated 23-6-1975 of Zoe Enid Browne, is liable to be in any manner affected or otherwise displaced, by the grant of letters of administration in respect of the will dated 12-3-1962 stated to have been executed by Mary Aline Browne.'

Accordingly, the learned Judge held that the petitioner has not established that she has a caveatable interest justifying her opposition to the probate proceedings for grant of letters of administration. In this state of affairs, we are unable to agree with the learned counsel that the petitioner has caveatable interest."

This Court, thus, categorically opined that while granting a probate, the court would not decide any dispute with regard to title. A separate suit would be maintainable therefor. If probate is granted, they have a remedy in terms of Section 263 of the 1925 Act also.

67. In the recent judgment of Kanwarjit Singh Dhillon v. Hardyal Singh Dhillon this Court inter alia relying upon Chiranjilal Shrilal Goenka v. Jasjit Singh and upon referring to a catena of decisions of the High Court and this Court, held that the Probate Court does not decide any question of title or of the existence of the property itself."

(emphasis supplied)"

15. In view of the law laid down by the Hon'ble Apex Court that while

granting a probate the Probate Court would not decide any dispute with

regard to title and whereas since it appears in the present case that legal heirs

of the testator had not objected to grant of probate, rather legal heirs appear

to have supported the case of the applicants-appellants, therefore, in the

considered opinion of this Court, the learned Civil Court had completely

C/FA/212/2003 JUDGMENT DATED: 10/02/2023

erred in rejecting the probate application for grant of probate, more

particularly the learned Civil Court having erred in being influenced by the

consideration that the applicants did not produce any document to show the

right of the testator upon the properties in question.

16. In view of the above discussions the issues No. 1 and 2 are held

affirmative and in negative, respectively.

17. Issue No. 3 : In view of the above discussion and observations, in

the considered opinion of this Court, the impugned judgment and order

passed by the learned Civil Judge, Junior Division, Halvad, dated 31.07.2002

in Civil Misc. Application No. 3 of 1999, is hereby quashed and set aside.

Consequently, the learned Civil Court is directed to pass appropriate orders

granting probate in favour of the applicants-appellants herein.

18. Registry to transmit the record and proceedings back to the learned

Civil Court forthwith and whereas upon the record and proceedings being

received by the learned Civil Court, the applicants-appellants herein shall

make an application to the learned Civil Court bringing attention of the

learned Civil Court concerned to the present order and whereas the learned

Civil Court shall, upon such application being preferred, pass appropriate

orders granting probate in favour of the applicants as prayed for in the

original Civil Misc. Application No. 3 of 1999, within a period of 15 days.

C/FA/212/2003 JUDGMENT DATED: 10/02/2023

19. With the above observations and directions, the present first appeal is

disposed of as allowed.

(NIKHIL S. KARIEL,J) BDSONGARA