Rakeshkumar Ramanbhai Patel vs None
2024 Latest Caselaw 1471 Guj

Gujarat High Court

Rakeshkumar Ramanbhai Patel vs None on 19 February, 2024

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     C/FA/4562/2023                             JUDGMENT DATED: 19/02/2024

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      IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                      R/FIRST APPEAL NO. 4562 of 2023

FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE DEVAN M. DESAI              Sd/-
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1    Whether Reporters of Local Papers may be allowed                 NO
     to see the judgment ?

2    To be referred to the Reporter or not ?                         YES

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 ?

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                      RAKESHKUMAR RAMANBHAI PATEL
                                Versus
                                NONE
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Appearance:
MR GOPAL M PANDYA(3400) for the Appellant(s) No. 1
MR VISHAL T. PATEL(6518) for the Appellant(s) No. 1
for the Defendant(s) No. 1
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    CORAM:HONOURABLE MR. JUSTICE DEVAN M. DESAI
                     Date : 19/02/2024
                     ORAL JUDGMENT

1. Heard learned advocate Mr. Vishal T. Patel for the

appellant. Perused the record.

2. By way of this appeal, the challenge is made against

the order dated 14.8.2023 passed by the learned 14 th

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Additional Civil Judge, Dehgam, District Gandhinagar

in Civil Misc. Application No.9 of 2022.

3. The brief facts leading to filing of the present appeal

are as under:

* The present appellants filed Civil Misc.

Application No.9 of 2022 for `Letter of

Administration' of the immovable property of late

Natvarlal Chhotalal Patel and his wife Champaben

Natvarlal Patel, under Section 217 read with Section

278 of the Indian Succession Act, 1925. The appellant

claimed to be the nephew of late Natvarlal Chhotalal

Patel who passed away on 16.11.2021 and his wife

late Champaben Natvarlal Patel passed away on

10.1.2017 at Dehgam. The relationship between the

appellant and deceased are that of nephew, uncle -

aunty.

4. Submissions of learned advocate for the appellant

are as under:

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* The appellants filed Civil Misc. Application No.9

of 2022 for `Letter of Administration' of the

immovable property of late Natvarlal Chhotalal Patel

and his wife Champaben Natvarlal Patel, under

Section 217 read with Section 278 of the Indian

Succession Act, 1925.

* The original applicants were taking care of the

deceased during their life time as Natvarlal Chhotalal

Patel and his wife Champaben Natvarlal Patel had no

issue out of their wedlock.

* It is further submitted that deceased Natvarlal

Chhotalal Patel and his wife Champaben Natvarlal

Patel have expired without making any testamentary

instrument. The appellants are the heirs falling under

Class - I category of the Hindu Succession Act. It is

also submitted that the application for `Letter of

Administration' under Section 217 read with Section

278 of the Act wherein the notice was affixed on the

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conspicuous part of the Court and a general notice

was also issued in Sandesh Newspaper widely

circulated in Gandhinagar District. Pursuant to the

said public notice, no objections were raised by any

interested person or brothers and sisters of the

appellants who are mentioned in paragraph no.4 of

the application. The death certificate of Natvarlal

Chhotalal Patel and his wife Champaben Natvarlal

Patel were produced on record. Power of Attorney of

Rakeshkumar Ramanbhai Patel was examined vide

Exh.10 and there was no cross examination of the

said Power of Attorney holder. In a nut shell, the

application was uncontested. However, the learned

Additional Civil Judge on 14.8.2023 dismissed the

application on the ground that except oral evidence,

the appellants have not produced evidence in

support of the application. Being aggrieved by the

judgment and order, the present appellant has

preferred this First Appeal.

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5. Learned advocate for the appellant has relied upon

the Sections 217 and 278 of the Indian Succession

Act, 1925 which read as under:

"217. Application of Part.--

Save as otherwise provided by this Act or by any other law for the time being in force, all grants of probate and letters of administration with the will annexed and the administration of the assets of the deceased in cases of intestate succession shall be made or carried out, as the case may be, in accordance with the provisions of this Part.

278. Petition for letters of administration.

--

(1) Application for letters of administration shall be made by petition distinctly written as aforesaid and stating--

(a) the time and place of the deceased's death;

(b) the family or other relatives of the deceased, and their respective residences;

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(c) the right in which the petitioner claims;

(d) the amount of assets which are likely to come to the petitioner's hands;

(e) when the application is to the District Judge, that the deceased at the time of his death had a fixed place of abode, or had some property, situate within the jurisdiction of the Judge; and

(f) when the application is to a District Delegate, that the deceased at the time of his death had a fixed place of abode within the jurisdiction of such Delegate.

(2) Where the application is to the District Judge and any portion of the assets likely to come to the petitioner's hands is situate in another State, the petition shall further state the amount of such assets in each State and the District Judges within whose jurisdiction such assets are situate."

6. Learned advocate for the appellant has submitted it

is mandatory on the part of the Court to grant a

certificate in absence of any contest and the

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proceedings being summary in nature, the learned

trial Court has erred in dismissing the application for

want of further evidence despite the fact that the

application was non contested application.

7. Learned advocate for the appellant has relied upon

the following decision in support of his submission:

(a) Bai Zabu Khima v. Amardas Balakdas

reported in AIR 1967 Gujarat 214

8. It is further submitted that necessary documents in

support of the application were submitted however,

the learned trial Court has committed an error of law

by rejecting the application.

9. I have considered the submission of learned

advocate for the appellant and the Record and

Proceedings placed before this Court of the learned

trial Court. The application was filed by the appellant

seeking `Letter of Administration' of the immovable

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properties mentioned in Schedule `A' of the

application was sought for. The relationship between

the appellant and the deceased are that of nephew

and uncle - aunty. Deceased Natvarlal Chhotalal

Patel and his wife Champaben Natvarlal Patel had no

legal heir and they expired intestate on 16.11.2021

and 10.1.2017 respectively at Dehgam, District

Gandhinagar.

10. Pursuant to the application, public notice was issued

in the local widely circulated daily newspaper

"Sandesh" in the Gandhinagar District edition.

Pursuant to the said publication of notice, no-one

objected against the granting of `Letter of

Administration.' The testimony of Power of Attorney

holder of the appellant has also gone unchallenged.

11. The limited question which is to be considered is that

whether while considering an application under

Section 217 read with Section 278 of the Act, a strict

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proof under the Indian Evidence Act is required or

not?

12. In the case of Bai Zabu Khima (Supra) in

paragraph No.4, the Division Bench has observed as

under:

"4. That takes us to the last contention which was debated before us, namely, whether on the evidence on record the applicant could be said to have established due execution of the will. Now there is no doubt that the burden of establishing due execution of the will is on the person who propounds the will and the person propounding the will must satisfy the conscience of the Court that the instrument in question is the last will and testament of the deceased. The applicant for the purpose of establishing due execution of the will filed the affidavits of several witnesses, two of whom are material for the purpose of the present appeal and they are Ratilal Chhotalal and Govubha Zhala. Ratilal Chhotalal stated in his affidavit that he had prepared the original will under the instructions of the deceased and that the deceased had signed the will in his presence and thereafter at the same time the attesting witnesses had also attested the signature of the deceased. He also added that at the time when the deceased made the will, he was in a sound and disposing state of mind. This witness was cross- examined on behalf of the opponent and questions were

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asked in regard to the role alleged to have been played by him in the preparation of the will but his evidence in regard to the due execution of the will was not challenged at all in crossexamination. Not a single question was asked challenging the testimony of this witness that the will was signed by the deceased in his presence and thereafter at the same time the attesting witnesses attested the signature of the deceased. Govubha Zhala who was an attesting witness also stated in his affidavit that the deceased signed the will in his presence and thereafter the other attesting witness Bhikhalal Oghadbhai attested the signature of the deceased and he thereafter attested the signature at the instance of the deceased. He also deposed to the sound and disposing state of mind of the deceased. This witness too was cross-examined on behalf of the opponent but curiously enough no challenge was levelled against the testimony of this witness in regard to the due execution of the will and the sound and disposing state of mind of the deceased. In view of the evidence of these two witnesses, namely, Ratilal Chhotalal and Govubha Zhala it is clear that the will was prepared by Ratilal Chhotalal under instructions of the deceased and the deceased signed the will in the presence of Ratilal Chhotalal, Bhikhalal Oghadbhai and Govubha Zhala and immediately thereafter Bhikhalal Oghadbhai and Govubha Zhala attested the signature of the deceased and that the deceased was in a sound and disposing state of mind at the time when he executed the will. The will must, therefore, be held to be duly executed by the deceased. Mr. Padia however,

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contended that the learned Civil Judge was in error in not taking the oral evidence of the witnesses in examination-in-chief and proceeding merely on affidavits and this illegality committed by the learned Civil Judge vitiated the entire trial of the suit and the order made by the learned Civil Judge must, therefore, be set aside and the application must be remanded to the learned Civil Judge for disposal after taking the oral evidence of the witnesses in accordance with the procedure prescribed by law. This contention raises a question of considerable importance relating to the procedure to be followed by Judges taking testamentary matters in the districts in contentious cases. There can be no doubt that when a case is a non-contentious one, the Judge hearing an application for probate or letters of administration can act on affidavits. (Emphasis supplied). Order 19 Rule 2 of the CPC provides that upon any application evidence may be given by affidavit, but the Court may at the instance of either party, order the attendance for cross-examination of the deponent. The Judge hearing an application for probate or letters of administration may, therefore, allow evidence to be given by affidavits and acting on such evidence given by affidavits, grant probate or letters of administration. But where a contention is raised against the grant of probate or letters of administration and the case becomes a contentious one, this procedure, we are afraid, cannot be followed by the Judge. (Emphasis supplied). When a contention is raised,

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Section 295 of the Indian Succession Act says, "the proceedings shall take, as nearly as may be, the form of a regular suit, according to the provisions of the Code of Civil Procedure, 1908, in which the petitioner for probate or letters of administration, as the case may be, shall be the plaintiff, and the person who has appeared to oppose the grant shall be the defendant." The application is, therefore, converted into a suit as soon as a contention is raised and the same procedure is then required to be followed as is prescribed for a suit under the Civil Procedure Now it is elementary that in a suit the evidence of witnesses must be taken viva voce and affidavits cannot take the place of oral evidence. The only provision in the Code of Civil Procedure under which evidence may be given by affidavit is that contained in Order 19, Rules 1 and 2. Order 19 Rule 2 obviously cannot apply for it deals with giving of evidence by affidavit only upon an application. There is a conflict of authorities amongst various High Courts as to the true meaning of the word application" in this rule. One view is that it means "interlocutory applications"

such as one for injunction, attachment before judgment and appointment of receiver and not a substantive application while the other view is that the language of the enactment is wide enough to comprehend all applications, substantive as well as interlocutory. But on one point there is no dispute and that is that the rule applies only to giving of evidence by affidavit in an application and not in a suit Order 19 Rule 1 of course applies generally to all proceedings and even in a suit a Court may at any time for sufficient reason order that a

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particular fact or facts may be proved by affidavit or that the affidavit of any witness may be read at the hearing on such conditions as the Court thinks reasonable, but there is a proviso to this rule which is very important and it is that proviso which negatives the applicability of the rule in the present case. The proviso says that where it appears to the Court that either party bona fide desires the production of a witness for cross- examination and that such witness can be produced, an order shall not be made authorizing the evidence of such witness to be given by affidavit. Now in the present case it was clear that each side wanted to cross-examine the witnesses on the other side and in fact did cross-examine the witnesses. The learned Civil Judge could not, therefore, having regard to the proviso make an order authorizing the evidence of the witnesses to be given by affidavits. As a matter of fact, we do not find any order made by the learned Civil Judge authorizing the evidence of witnesses to be given by affidavits and no such order can even be implied for the rule requires reasons and a fortiori the reasons would have to be set out in the order. We are, therefore, of the view that the action of the learned Civil Judge in proceeding on the affidavits of the witnesses and not examiningin-chief the witnesses in Court could not be justified under this rule. But even so we do not think that the trial of the suit was vitiated by any illegality. Though there may be no provision in the Code authorizing the Court in a case such as this to take the evidence in examination-in-chief of the witnesses by affidavits, it is always open to the parties to agree that a

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particular affidavit may be treated as evidence in the case and the deponent of the affidavit may be further examined in chief or cross-examined on the statements made in the affidavit. This course was clearly assented to by the parties in the present case and this assent could be implied from the fact that neither party objected to the affidavits being treated as evidence in the case. The trial of the suit cannot, therefore, be held to be vitiated despite the unusual procedure followed by the learned Civil Judge and the order made by the learned Civil Judge granting letters of administration to the applicant must be sustained."

13. In the present case, the learned trial Court has

committed an error of law in not deciding the

application in a summary manner, but has expected

the applicants to prove the contests of the

application by leading detailed evidence which is out

the scope of Section 217 read with Section 278 of the

Act. The Court has vide powers to grant certificate in

favour of the applicants, more particularly, when

there is no contest to the granting of the certificate.

14. The Hon'ble Division Bench has observed that in a

case of non contentions application for `Letter of

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Administration' the Court can act an affidavit. The

present case is a case of non-contentions

applications for `Letter of Administration' and by

applying the decision Bai Zabu Khima (Supra), the

First Appeal deserves to be allowed by quashing and

setting aside the judgment and order dated

14.8.2023 passed by the learned 14th Additional Civil

Judge, Dehgam, District Gandhinagar in Civil Misc.

Application No.9 of 2022

15. The learned trial Court has committed an error by

observing that affidavits of other persons who are

mentioned in the application are not filed. Such

observation is bad in law as the interested person

have not come forward pursuant to public notice

published in local newspaper. Publication of notice in

local news paper was sufficient. Compliance and non

receipt of any resistance / objection by any

interested person in the estate of deceased, is

sufficient ground for allowing the application. No

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other evidence was required to be adduced by the

applicant in a non-contesting application for `Letter

of Administration.'

16. Section 283 of the Indian Succession Act, 1925 deals

with powers of District Judges dealing with such

cases Section 283 is reproduced hereunder:

"283. Powers of District Judge.--

(1) In all cases the District Judge or District Delegate may, if he thinks proper,--

(a) examine the petitioner in person, upon oath;

(b) require further evidence of the due execution of the will or the right of the petitioner to the letters of administration, as the case may be;

(c) issue 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 or letters of administration.

(2) The citation shall be fixed up in some conspicuous part of the courthouse, and also in the office of the Collector of the district and otherwise published or made known in such manner as the Judge or District

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Delegate issuing the same may direct.

(3) Where any portion of the assets has been stated by the petitioner to be situate within the jurisdiction of a District Judge in another State, the District Judge issuing the same shall cause a copy of the citation to be sent to such other District Judge, who shall publish the same in the same manner as if it were a citation issued by himself, and shall certify such publication to the District Judge who issued the citation."

17. The said provisions gives power to examine

petitioner in person, upon oath, any may require

further evidence regarding right of petitioner to the

`Letter of Administration' and also by issuing

citations calling upon persons claiming to have an

interest in the estate of deceased. In the present

case, appellant's Power of Attorney was examined

and public notice was issued in a local newspaper

calling upon persons claiming to have any interest in

the estate of deceased. However, neither any

persons have come forward claiming to have interest

in the estate of deceased nor have objected in

granting `Letter of Administration' to the appellant.

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18. In my view, the learned trial Court has committed an

error in arriving at the conclusion which is contrary to

law.

19. In the case of non contested application, the strict

proof under Evidence Act is not necessary. The Court

shall decide the application by considering the

application itself and the affidavit in support of the

application.

20. This Court is of the opinion that when the provisions

of Section 283 of the Act have been complied with

i.e. by issuing a public notice in a widely circulated in

local newspaper, the insistence of Pedhinama by the

lower Courts can also be dispensed with and as

objecting person or party can raise his / her

objections pursuant to the public notice. Even the

insistence of Pedhinama by the Court in such cases is

uncalled for.

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21. Thus, in the totality of facts and considering the

provisions of the Indian Succession Act, the

impugned judgment and order dated 14.8.2023 is

hereby quashed and set aside and Civil Misc.

Application No.9 of 2022 is allowed. Accordingly, this

Appeal is allowed. R & P be sent back to the

concerned Court forthwith.

22. The learned trial Court is directed to complete the

formalities of issuance of succession certificate in

favour of the applicants by following the due process

and procedure prevailing in the concerned Court.

23. No order as to costs.

SD/-

(D. M. DESAI,J) VATSAL