Gujarat High Court
Vithalbhai Ravjibhai Sarvaiya vs Durlabhjibhai Ravjibhai Saraiya on 11 September, 2024
NEUTRAL CITATION
C/FA/639/1997 JUDGMENT DATED: 11/09/2024
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 639 of 1997
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE DEVAN M. DESAI
================================================================
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 ?
================================================================
VITHALBHAI RAVJIBHAI SARVAIYA & ORS.
Versus
DURLABHJIBHAI RAVJIBHAI SARAIYA & ANR.
================================================================
Appearance:
MR YOGESH S LAKHANI(419) for the Appellant(s) No. 1,2,3,4,5
MR RAJESH K SHAH(784) for the Defendant(s) No. 1,2
================================================================
CORAM:HONOURABLE MR. JUSTICE DEVAN M. DESAI
Date : 11/09/2024
ORAL JUDGMENT
1. This First Appeal is filed under Section 294 of the Indian
Succession Act, 1925 (hereinafter referred to as 'the Act')
challenging the judgment dated 30.03.1996 passed by the
learned Civil Judge (Senior Division), Amreli passed in
Miscellaneous Civil Application No.26 of 1995.
NEUTRAL CITATION
C/FA/639/1997 JUDGMENT DATED: 11/09/2024
undefined
2. Heard learned advocate Mr. Jay Thakkar for learned
advocate Mr. Yogesh S. Lakhani for the appellants and
learned advocate Mr. Dixa Pandya for learned advocate Mr.
Rajesh K. Shah for the respondents.
3. The brief facts of the case are as under:-
4. The respondents-original plaintiffs filed an application
seeking probate of the WILL dated 31.10.1994 of deceased
Ravjibhai Dahyabhai Sarvia. The parties are the legal heirs of
deceased-Ravjibhai Dahyabhai Sarvia. The deceased-
Ravjibhai Dahyabhai Sarvia executed a WILL dated
31.10.1994 and thereafter, passed away on 21.01.1995. The
plaintiffs thereafter filed Civil Miscellaneous Application
No.26 of 1995 seeking probate of the WILL dated 31.10.1994.
Upon service of the summons, defendants appeared and filed
objections at Exhibit-8 and thereafter, proceedings were
transferred from the Court of Civil Judge, (Junior Division),
NEUTRAL CITATION
C/FA/639/1997 JUDGMENT DATED: 11/09/2024
undefined
Bagasara-Vadia to the Court of Civil Judge (Senior Division),
Amreli on 28.06.1995. The defendants-present appellants
though was represented through advocate, did not remain
present and contest the proceedings. Resultantly, after
considering the evidence available on record, the learned trial
Court has passed an order by allowing the application.
4.1. Being aggrieved and dissatisfied with the impugned
judgment, the appellants-original defendants are before this
Court.
5. Learned advocate for the appellants submitted that
initially the proceedings for obtaining probate of the WILL of
deceased-Ravjibhai Dahyabhai Sarvia was filed before the
Civil Judge, (Junior Division), Bagasara-Vadia. Objections
were raised by the defendants at Exhibit-8, wherein the
appellants denied the execution of the WILL and submitted
that WILL dated 31.10.1994 is concocted and bogus WILL.
NEUTRAL CITATION
C/FA/639/1997 JUDGMENT DATED: 11/09/2024
undefined
Deceased-Ravjibhai Dahyabhai Sarvia had executed a WILL
dated 22.06.1994, which is the genuine and last WILL of
deceased. It is further submitted that thereafter, the suit was
transferred from learned Civil Judge, (Junior Division),
Bagasara-Vadia to learned Civil Judge (Senior Division),
Amreli. It is further submitted that the Notice of the suit was
never served upon the defendants, and therefore, defendants
were not aware about the transfer of the suit proceedings. It is
further submitted that the decree passed by the learned trial
Court is without jurisdiction in view of the provisions
contained in Section 286 of the Act. It is further submitted that
original Civil Miscellaneous Application No.26 of 1995 was
filed by the plaintiffs is not maintainable in view non-
compliance of mandatory requirements as contemplated under
Section 281 of the Act. It is further submitted that the
application is not supported by verification at least by one of
the contesting witnesses and the affidavit of the witness was
NEUTRAL CITATION
C/FA/639/1997 JUDGMENT DATED: 11/09/2024
undefined
not produced along with the probate application. It is further
submitted that as the learned trial Court has committed an
error of law by not considering the relevant provisions of the
Act, the judgment and decree is required to be quashed and set
aside and in the interest of justice, the matter may be
remanded back for a fresh trial.
6. I have considered the submissions canvassed by learned
advocate for the appellants and also perused record and
proceedings. The only grievance which has been raised by the
appellants in challenging the impugned judgment and decree
is that after transferring the proceedings to learned Civil Judge
(Senior Division), Amreli from Civil Judge, (Junior Division),
Bagasara-vadiya, no notice was served upon defendants.
Resultantly, the proceedings went on ex parte. Another
grievance which has been raised by the learned advocate for
the appellant is that the mandatory requirements under Section
NEUTRAL CITATION
C/FA/639/1997 JUDGMENT DATED: 11/09/2024
undefined
281 of the Act are not complied with. On these two grounds,
the judgment is assailed. On perusal of the record and
proceedings, the fact which surfaces on record is that an
application for probate of WILL dated 31.10.1994 was filed.
The said WILL was executed by the deceased-Ravjibhai
Dahyabhai Sarvia, who is the father of plaintiffs and
defendants. The application was contested by the defendants
by filing objections at Exhibit-8. The bone of objection raised
by defendants is that the WILL dated 31.10.1994, is not a
genuine WILL and deceased father had executed a WILL
dated 22.06.1994. It is pertinent to observe that the WILL
dated 22.06.1994 was never made part of the record and
proceedings and no proceedings under Succession Act were
initiated by the defendants. On the other hand, the plaintiffs
have examined one of the witnesses of the WILL at Exhibit-
27-Savdas Kadvabhai who has proved the execution of the
WILL. Said witness was not cross-examined by the
NEUTRAL CITATION
C/FA/639/1997 JUDGMENT DATED: 11/09/2024
undefined
defendants. Even plaintiff has also led oral evidence at
Exhibit-16. Oral deposition of plaintiff is unchallenged.
7. The contention which has been raised by the learned
advocate for the appellants is that no notice was ever served to
defendants by the learned Civil Judge, (Senior Division),
Amreli is falsified by referring the Rojkam of the proceedings.
Exhibit-23 and Exhibit-24 dated 01.01.1996 and 23.01.1996
respectively clearly reveal that learned advocate for the
defendant applied for an adjournment and it was granted by
the learned trial Court. When the defendants were ably
represented by the advocate, the grievance of non-receipt of
summons/ notice to defendants falls flat. When the defendants
were represented by the learned advocate, the proceedings
cannot be said to be an ex parte, at the most, it can be said to
be undefended.
Plaintiffs have proved the execution of WILL.
NEUTRAL CITATION
C/FA/639/1997 JUDGMENT DATED: 11/09/2024
undefined
Defendants have not sought for any letter of administration /
probate of WILL dated 22.06.1994. The burden of proving
WILL at 31.10.1994 has been duly discharged by plaintiff.
There is nothing adverse point out by learned advocate for the
appellants whereby this court can incline to remand the matter
back to learned trial Court for fresh hearing.
8. In the background of the above facts and circumstances,
I am of the view that there is no substance in the First Appeal
and resultantly, the Appeal fails and the same is dismissed. No
order as to costs. Record and proceedings be sent back to the
concerned Court, forthwith.
(D. M. DESAI,J)
RINKU MALI
