[Cites 9, Cited by 0]
Gujarat High Court
Dineshbhai Dhulabhai vs Revaben Naranbhai Chauhan on 27 January, 2026
NEUTRAL CITATION
C/SA/121/2010 ORDER DATED: 27/01/2026
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SECOND APPEAL NO. 121 of 2010
With
CIVIL APPLICATION (FOR JOINING PARTY) NO. 1 of 2021
In R/SECOND APPEAL NO. 121 of 2010
With
CIVIL APPLICATION (FOR BRINGING HEIRS) NO. 1 of 2023
In R/SECOND APPEAL NO. 121 of 2010
With
CIVIL APPLICATION (FOR JOINING PARTY) NO. 1 of 2025
In R/SECOND APPEAL NO. 121 of 2010
With
CIVIL APPLICATION (FIXING DATE OF EARLY HEARING) NO. 2 of 2022
In R/SECOND APPEAL NO. 121 of 2010
With
CIVIL APPLICATION (FOR CONDONATION OF DELAY) NO. 2 of 2023
In CIVIL APPLICATION (FOR BRINGING HEIRS) NO. 1 of 2023
In R/SECOND APPEAL NO. 121 of 2010
With
CIVIL APPLICATION (FOR BRINGING HEIRS) NO. 3 of 2021
In R/SECOND APPEAL NO. 121 of 2010
With
CIVIL APPLICATION (FOR CONDONATION OF DELAY) NO. 4 of 2021
In R/SECOND APPEAL NO. 121 of 2010
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DINESHBHAI DHULABHAI & ORS.
Versus
REVABEN NARANBHAI CHAUHAN & ORS.
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Appearance:
MS ARCHANA R ACHARYA(2475) for the Appellant(s) No. 1,2,3.1,3.2,4,4.1
MR MANOJ SHRIMALI(2331) for the Respondent(s) No. 1.1,1.2,1.4,1.5
MR MRUGEN K PUROHIT(1224) for the Respondent(s) No. 1.6
NOTICE SERVED for the Respondent(s) No. 1.3
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 27/01/2026
ORAL ORDER
1. This Second Appeal challenges judgment and decree
passed in Misc. Civil Appeal No.64 of 2006 by learned Presiding
Officer, Fast Track Court No.3, Gandhinagar, whereby challenge
NEUTRAL CITATION
C/SA/121/2010 ORDER DATED: 27/01/2026
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was made to judgment and order passed in probate proceedings
being C.M.A.No.25 of 2000, whereby, probate proceedings is
rejected.
2. Misc. Civil Appeal i.e. Appeal from Order was allowed and
it is held that appellant is entitled to get the relief as prayed for,
however, learned Appellate Court did not qualify what kind of
relief appellant is entitled to. In this juxtaposition, Second
Appeal has been preferred, which was admitted by Co-ordinate
Bench of this Court on 15.12.2010 raising following substantial
question of law :-
"(i) Whether the probate application is maintainable in law,
without any will?
(ii) Whether lower appellate Court erred in exercising the
jurisdiction while granting probate application without any
will and whether the evidence given by Umeshbhai Exh.32
and deposition given at Exh.29 as well as written
submission made by both the parties which were misread
by the lower appellate Court while deciding the appeal?
(iv) Whether as per Section 212 and 213 of the Indian
Succession Act, without issuing the letter of administration
have first been granted by the competent Court to administer
the property?
(v) Whether under Section 15 and 22 of the Hindu
Succession Act, the respondent can be considered as legal
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C/SA/121/2010 ORDER DATED: 27/01/2026
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heirs of Bai Dhudiben, who died intestate and without any
issue ?
(vi) Whether the trial Court erred in allowing the amendment
application and converting the probate application into
succession certificate after the appeal is disposed of by the
lower appellate Court and whether the trial Court has
jurisdiction to permit the respondent to amend the original
plaint when all the proceedings is disposed of and there is
no case pending before the trial Court?"
3. I have heard learned advocates for the respective parties.
There are other Civil Applications pending in the matter filed by
third party as well as some other Civil Applications. What could
be noticeable that before learned Trial Court, original petitioner -
Revaben through her power of attorney Umeshbhai Chauhan
preferred application for getting probate on the ground that
deceased Hirabhai died intestate and petitioner Revaben has
inherited property of deceased Hirabhai and therefore, issuance
of probate deserves to be granted. Vide Exh.83, probate
application was converted into Succession certificate which
could be discernible from body of Civil Misc. Application.
4. Learned Principal Senior Civil Judge, Gandhinagar was
pleased to dismiss the application on 16.01.2006. The appeal
was preferred but it was preferred as Appeal from Order.
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Learned Appellate Court without referring the aspect that
probate proceedings has been amended and prayer was made to
grant succession certificate, was pleased to allow the Appeal
from Order. Thus, Second Appeal.
5. What could be noticeable that probate proceedings is to be
undertaken under Indian Succession Act. Section 270 of the
Indian Succession Act describes when probate or administration
may be granted by District Court. Section 272 of the Indian
Succession Act defines probate and letters of administration to
be granted by delegate. In fact Chapter (iv) of Indian Succession
Act is governing the grant of probate or letter of administration
or otherwise including Appeal provision under section 299 of
Indian Succession Act.
6. In aforesaid circumstances, appeal filed before the learned
Appellate Court treated as Misc. Civil Appeal or Appeal from
Order, which is normally filed under Order 43 of Code of Civil
Procedure was not maintainable. Learned Appellate Court did
not consider this issue at all. At this juncture, learned advocate
Mr.Purohit bring it to the notice of the Court that title of the
appeal indicates that it was filed under Order 41 of CPC an
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usual provision governing appeal before District Court. I am not
impressed on this aspect, be it appeal under Order 41 or Order
43 of CPC, it cannot replace Appellate Court's jurisdiction to
decide appeal provided under provision of Indian Succession Act.
Further filing of such appeal under provision of Indian
Succession Act, decide future course of further challenge. Thus
decision taken by Appellate Court under Order 43 of CPC put
decision to category passed without being in legal seisin of the
appellate Court.
7. Second issue which is writ large before the learned
Appellate Court is whether succession certificate could be
granted for immovable property.
8. All the above questions are to be decided by the learned
Appellate Court under provision of the Indian Succession Act.
9. In view of aforesaid legal position, Second Appeal is allowed
to the extent remanding Misc. Civil Appeal No.64 of 2006 by
quashing and setting aside judgment dated 30.07.2008 and
treating it to be appeal under provision of Indian Succession Act.
Accordingly, Misc. Civil Appeal No.64 of 2006 is remanded to the
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learned Appellate Court concerned, to be decided afresh treating
it to be Regular Civil Appeal under provision of Indian
Succession Act. Registry of learned Appellate Court concerned
to convert Misc. Civil Appeal No.64 of 2006 as Regular civil
appeal under provision of the Indian Succession Act.
10. All the parties are permitted to raise their contentions in
the first appeal before the learned Appellate Court concerned, as
this Court has not observed anything on merits of contentions of
the parties.
11. All the Civil Applications stand disposed of permitting
concerned parties to raise their dispute by way of separate
application before the learned Appellate Court within reasonable
time. Considering age of the parties and age of dispute, I direct
learned Appellate Court concerned to decide the remanded
matter afresh within nine months from the date of receipt of
present order. Needless to state that any application filed by any
of the parties, or not a party to the proceedings, shall be decided
on its merits. Further interim order of status-quo passed by this
Court on 15.12.2010 shall continue to operate amongst parties
till final disposal of the appeal being remanded to be decided
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afresh.
Record and Proceedings, if any, be send back to learned
Trial Court concerned.
(J. C. DOSHI,J)
SATISH
