Gujarat High Court

Rambhai Chaganbhai Modhvadiya vs Rajubhai Chaganbhai Modhvadiya on 20 November, 2025

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                              C/FA/371/2025                                       JUDGMENT DATED: 20/11/2025

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                                     IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                                                  R/FIRST APPEAL NO. 371 of 2025

                                                             With
                                         CIVIL APPLICATION (FOR STAY) NO. 1 of 2025
                                               In R/FIRST APPEAL NO. 371 of 2025

                       FOR APPROVAL AND SIGNATURE:


                       HONOURABLE MRS. JUSTICE M. K. THAKKER
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                                    Approved for Reporting                        Yes            No
                                                                                             ✔
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                                               RAMBHAI CHAGANBHAI MODHVADIYA
                                                            Versus
                                               RAJUBHAI CHAGANBHAI MODHVADIYA
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                       Appearance:
                       DARSHAN M VARANDANI(7357) for the Appellant(s) No. 1
                       KANAN R JADEJA(8999) for the Appellant(s) No. 1
                       ==========================================================

                          CORAM:HONOURABLE MRS. JUSTICE M. K. THAKKER

                                                              Date : 20/11/2025

                                                              ORAL JUDGMENT

1. The present appeal is filed challenging the order passed by

the learned 2nd Additional District and Sessions Judge,

Porbandar, in Civil Misc. Application No.02 of 2024 dated

02.01.2025, whereby the learned Court has set aside the probate

certificate issued in favour of the present appellant and directed

to deposit the same before the learned Principal Senior Civil

Judge, Ranavav.

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2. At the outset, learned advocate Mr. Varandani for the

appellant fairly submits that the appellant is not challenging the

impugned order setting aside the probate certificate. However,

while setting aside the probate certificate, instead of directing

the learned Principal Senior Civil Judge to remand it back to the

learned Civil Judge to be heard as a suit and to be decided after a

full-fledged trial, the same is required to be decided.

3. In view of the above limited prayer, this Court did not issue

notice to the other side and deemed it fit to decide the first

appeal finally. As observed hereinabove, the only limited prayer

is made by the learned advocate Mr. Varandani to remand it back

to learned Principal Senior Civil Judge to decide the application

for grant of probate after full-fledged suit, as per the decision

rendered by the Hon'ble Apex Court in the case of Manibhai

Amaidas Patel and Another V/s. Dayabhai Amaidas reported in

(2005) 12 SCC 154, wherein it is held as under:

"1. Leave granted.

2. The question to be decided in this appeal is whether the courts below were justied in dismissing the appellants' application for revocation of probate granted to the respondent. The appellants and the respondent are three of the sons of one Amaidas Patel and Amaidas

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had two other sons, namely, Ratilal and Thakur Bhai, who are both dead. Ratilal predeceased his father and was survived by his widow Shantaben. Amaidas died on 20.02.1985.

3. On the allegation that Amaidas had executed a Will on 3.11.1982 in the respondent's favour, the respondent applied for probate of Amaidas's Will on 16.02.2002. In the application for grant of probate, the respondent did not mention the fact that Amaidas had left behind him any other heirs when he died. In fact, in the cause title in the probate application, the opposing parties have been described as "nobody".

4. It appears that the District Judge directed the issuance of a public notice in the local newspaper Dhabkar. A copy of the advertisement unfortunately is not on record. We can only assume that notice was given of the case as described in the cause title. Apart from that Dhabkar according to the appellants has a very negligible circulation in the locality. On 4.05.2002 probate was granted ex parte to the respondent.

5. On 14.09.2002 Shantaben, the daughter-in-law of Amaidas, led an appeal against the grant of probate. The appeal was rejected on 23.10.2002 by the High Court. In rejecting the appeal, the High Court came to the conclusion that since the Will had been proved and the lower court had considered the documents, the finding of the learned Judge should not be disturbed in appeal.

6. Apart from the fact that we cannot agree with the reasons given by the High Court rejecting Shantaben's

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appeal, that decision can certainly not preclude the appellants who were not named as parties thereto, from applying for revocation of the grant u/s. 263 of the Succession Act, 1925 . According to the appellants, they came to know about the probate proceedings when they received a notice on 21.12.2002 from the Collector in which the grant of probate in favour of the respondent was mentioned. Immediately thereafter on 7.01.2003 the appellants led their application for revocation of the probate.

7. The application was rejected by the lower court on the ground that the matter had been finally resolved by the High Court in Shantaben's appeal. The appeal preferred by the appellants was dismissed by the impugned order according to which the decision of the High Court on Shantaben's appeal operated as a judgement in rem and therefore bound the whole world including the appellants.

8. The appellants have raised several contentions in support of their appeal before us all of which are not necessary to be noted. We are satisfied that the appeal must be allowed in view of the contention, namely, that both the courts have wrongly failed to notice that Sec. 263 allowed the appellants to apply for revocation of the grant of probate. The relevant extract of this section reads as under:

"263. Revocation or annulment for just cause.-The grant of probate or letters of administration may be revoked or annulled for just cause.

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Explanation.-Just cause shall be deemed to exist where-

(a) the proceedings to obtain the grant were defective in substance; or

(b) the grant was obtained fraudulently by making a false suggestion, or by concealing from the court something material to the case; or

(c) the grant was obtained by means of an untrue allegation of a fact essential in point of law to justify the grant, though such allegation was made in ignorance or inadvertently; or Illustrations

(i) * * *

(ii) The grant was made without citing parties who ought to have been cited.

(iii) The will of which probate was obtained was forged or revoked.

(iv)-(viii) * * *"

9. This would clearly show that it is necessary to cite parties who would otherwise have an interest in the succession to the estate of the deceased. That would naturally include all the heirs of the deceased. Besides, Sec. 283 gives power to the District Judge as regards the issue of 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. Necessarily therefore the facts on the basis of which the District Judge is required to exercise his discretion must be fairly placed before him. In this case the respondent

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had done nothing of the sort as we have already noticed.

10. The courts below also overlooked the fact that in their application for revocation the appellants had clearly stated that in other proceedings between the members of the family of Amaidas and the respondent the Will had been successfully disputed. In the circumstances, for the respondent to say that the grant was being opposed by "nobody" was misleading. The grant was obtained by concealing from the court something which was very material to the case. The appellants were entitled to be heard and doubtless the District Judge would have directed to issue of citations to each of Amaidas's heirs on intestacy u/s. 283(1)(c) of the Act had the true facts been revealed by the respondent in his application for grant of probate. The advertisement in this case was wholly insufficient to patch up the gross lacuna.

11. In the circumstances we allow the appeal and revoke the probate granted to the respondent on 4.05.2002. The matter is now to be heard as a contentious cause. The appropriate District Judge will make all the heirs of the deceased Amaidas party-respondents before further proceeding in the matter and will dispose of the matter after allowing the parties to file their written statements as if the probate proceedings were a full-edged suit.

12. Needless to say this Court has not and does not intend to express any view on the genuineness of the alleged Will of Amaidas.

13. The appeal is allowed with costs."

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4. In view of the above, the appeal is disposed of with the

above directions. Learned Principal Senior Civil Judge shall

decide the application for probate as a full-fledged suit and after

considering the submissions as well as the evidence led by both

the parties, the suit shall be disposed of as expeditiously as

possible after hearing the respective parties.

It is clarified that this Court has not opined anything on