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2011 DIGILAW 171 (GUJ)

NAGRAJ CHHAJER S/O BUDHMALJI CHHJAR v. .

2011-03-08

J.C.UPADHYAYA

body2011
JUDGMENT : 1. Both the appeals are admitted. 2. Considering the peculiar facts of these appeals, namely that all the other heirs of late deceased Budhmalji and late deceased Bachhrajji have consented for grant of probate certificate in favour of the appellant and even before City Civil Court, none raised any objection against the applications of the appellant and as requested by Mr. N V Gandhi, Ld. Counsel representing the appellant and considering the nature of such litigation, both these appeals are heard for final disposal and are being disposed of by this common judgment. 3. First Appeal No. 796/2011 arises out of the impugned judgment and order dated 29/7/2010 rendered by Ld. City Civil Judge, Court No. 19, Ahmedabad in Civil Misc. Application No. 764/2009, whereby the application preferred by the appellant herein seeking probate under section 222 of the Indian Succession Act, 1925 [for short 'the Act'] came to be dismissed. First Appeal No. 797/2011 arises out of the impugned judgment and order dated 29/7/2010 rendered by Ld. City Civil Judge, Court No. 19, Ahmedabad in Civil Misc. Application No. 763/2009, whereby the application preferred by the appellant herein seeking probate under section 222 of the Act came to be dismissed. 4. Mr. NV Gandhi, Ld. Counsel for the appellant submitted that Budhmalji has three sons and three daughters. Budhmalji along with his wife and sons and daughters permanently resided in Ahmedabad and was doing business. In the year 1961, in the joint names of Budhmalji and his three sons, namely the appellant – Nagraj, Malchandji and Bachhrajji, a property in Bombay known as “Chhajer Building” came to be purchased. Budhmalji died on 10/3/1983 and before his death, he had executed a will dated 15/3/1982, whereby he bequeathed his share in Bombay property in favour of the appellant – Nagrajji. It is submitted that the appellant preferred an application under section 222 of the Act before the City Civil Court, Ahmedabad for obtaining probate certificate of the will of his father Budhmalji, whereby his father had bequeathed his share in the Bombay property in favour of the appellant. The said application was registered as Civil Misc. Application No. 764/2009. It is submitted that in the said application, a notice was published in Jansatta newspaper of Ahemdabad edition. The said application was registered as Civil Misc. Application No. 764/2009. It is submitted that in the said application, a notice was published in Jansatta newspaper of Ahemdabad edition. Pursuant to the publication, it is submitted that other heirs and legal representatives not only of late Budhmalji, but even of deceased son Bachhrajji and deceased Jhankardevi filed their affidavits in favour of the appellant stating that they have no objection or grievance if the probate, as prayed for, is granted in favour of the appellant. However, the said application came to be dismissed by virtue of the impugned judgment and order. 4.1. So far as First Appeal No. 797/2011 is concerned, Mr. Gandhi, Ld. Counsel for the appellant submitted that Civil Misc. Application No. 763/2009 was filed by the appellant before the City Civil Court seeking probate certificate under section 222 of the Act pertaining to the will executed by his brother – late Bachhrajji dated 9/12/2007, whereby his share in the aforementioned Bombay property came to be bequeathed to the appellant. Said Bachhrajji had expired on 21/4/2008 and till his death, his permanent abode was in Ahmedabad. In connection with said application, notice was published in Jansatta newspaper of Ahemdabad edition. Even in connection with said application, all the heirs and legal representatives not only of late Bachhrajji, but even of late Budhmalji and late sister Jhankardevi filed their affidavits in favour of the appellant stating that they do not object the probate certificate being issued to the appellant. The said application ultimately came to be dismissed by virtue of the impugned judgment and order. 4.2. Mr. Gandhi, Ld. Counsel submitted that both the applications came to be dismissed by the City Civil Court on technical grounds. It is submitted that both the applications came to be dismissed on the ground that City Civil Court, Ahmedabad had no territorial jurisdiction to hear and decide those applications as the immovable property, for which the probate was claimed, is situated outside the State of Gujarat, namely in Bombay. It is submitted that both the applications came to be dismissed on the ground that City Civil Court, Ahmedabad had no territorial jurisdiction to hear and decide those applications as the immovable property, for which the probate was claimed, is situated outside the State of Gujarat, namely in Bombay. The another ground for which those applications came to be dismissed is that the property which is situated in Bombay carries valuation exceeding Rs.10,000/-and, therefore, under section 273 proviso [b] of the Act, Ahmedabad Court had no jurisdiction and that the third ground for which the applications came to be dismissed is that there was noncompliance of provision contained under section 283[3] of the Act. Mr. Gandhi, Ld. Counsel submitted that so far as dismissal of C.M.A. No. 764/2009 is concerned, over and above the aforesaid grounds, one more ground is referred in the impugned judgment and order for dismissal of said application, which is to the effect that the probate certificate was sought for pertaining to the will of appellant's father Budhmalji and since Budhmalji had expired in the year 1983, the application filed in the year 2009, after the lapse of about 26 to 27 years, was outright time barred. 4.3. About the territorial jurisdiction of the City Civil Court to decide said applications, Mr. Gandhi, Ld. Counsel drew my attention to section 270 of the Act, wherein it has been provided that the District Court has territorial jurisdiction to hear and decide such application where deceased had a fixed place of abode or the place where the property is situated. Mr. Gandhi, therefore, submitted that in the instant case, both the deceased, namely Budhmalji and Bachhrajji had their permanent place of abode in Ahmedabad till they died and hence City Civil Court, Ahmedabad has territorial jurisdiction to hear and decide these applications by virtue of the provisions contained in section 270 of the Act. Mr. Mr. Gandhi, therefore, submitted that in the instant case, both the deceased, namely Budhmalji and Bachhrajji had their permanent place of abode in Ahmedabad till they died and hence City Civil Court, Ahmedabad has territorial jurisdiction to hear and decide these applications by virtue of the provisions contained in section 270 of the Act. Mr. Gandhi further submitted that considering proviso [b] of section 273 of the Act, it is provided that in case, if the probate is granted by a District Judge, where the deceased at the time of his death had a fixed place of abode situate within the jurisdiction of such Judge, and such Judge certifies that the value of the property and estate affected beyond the limits of the State does not exceed ten thousand rupees, unless otherwise directed by the grant, the order passed by the District Judge shall have like effect throughout the other States. It is submitted that the Ld. City Civil Judge heavily relied upon these provisions and came to the conclusion that since the valuation of Bombay property is exceeding Rs.10,000/-, he has no territorial jurisdiction. It is submitted that the Ld. City Civil Judge erred in appreciating the provisions contained in section 273 of the Act in isolation as he should have simultaneously considered the relevant provisions regarding powers of the District Judge contained in sub-section [3] of section 283 of the Act, whereby it is provided that in case if any property is situated in another State, then the copy of the citation [the public notice] is required to be sent to such other District Judge within whose local limits the property is situated and such other District Judge shall publish the same in the same manner as if it were a citation issued by the first District Judge. It is, therefore, submitted that in the instant case, instead of dismissing the applications, the Ld. City Civil Judge should have followed the procedure as contemplated under sub-section [3] of section 283 of the Act. 4.4. Since C.M.A. No. 764/2009 came to be dismissed on one more additional ground of limitation, Mr. Gandhi, Ld. It is, therefore, submitted that in the instant case, instead of dismissing the applications, the Ld. City Civil Judge should have followed the procedure as contemplated under sub-section [3] of section 283 of the Act. 4.4. Since C.M.A. No. 764/2009 came to be dismissed on one more additional ground of limitation, Mr. Gandhi, Ld. Counsel relied upon the decision rendered in the case of Krishan Kumar Sharma v. Rajesh Kumar Sharma reported in [2009] 11 S.C.C. 537, wherein relying upon one another decision rendered in the case of Kunvarjeet Singh Khandpur v. Kirandeep Kaur reported in [2008] 8 S.C.C. 463 the Hon'ble Apex Court held that though under the Limitation Act no period is prescribed within which an application for probate, etc., must be made, but assuming that under Article 137 of the Limitation Act the right to apply would accrue when it becomes necessary to apply, which may not necessarily be within three years from the date of the deceased's death. 4.5. Ultimately, Mr. Gandhi, Ld. Counsel submitted that both these appeals may be allowed and impugned judgments and orders rendered by the Ld. City Civil Judg, Ahmedabad in both the matters may be set aside and it is requested that the appellant is ready and willing to undergo the procedure prescribed under sub-section [3] of section 283 of the Act and, therefore, both the applications may be remanded back to the concerned City Civil Court to undergo the necessary formality and to decide both these applications afresh on the basis of the materials already produced before the concerned Court and which may be adduced in future. 5. At the outset, it is pertinent to note that in connection with both these applications, none appeared and raised any objection regarding the certificate of probate being granted in favour of the appellant. Under such circumstances, none objected to the pleadings of the appellant before the trial Court and none challenged the evidence adduced by the appellant before the said Court. About the territorial jurisdiction, the trial Court came to the conclusion that the immovable property is situated in Bombay and, therefore, City Civil Court, Ahmedabad, has no jurisdiction. Under such circumstances, none objected to the pleadings of the appellant before the trial Court and none challenged the evidence adduced by the appellant before the said Court. About the territorial jurisdiction, the trial Court came to the conclusion that the immovable property is situated in Bombay and, therefore, City Civil Court, Ahmedabad, has no jurisdiction. Perusing section 270 of the Act, it has been specifically provided that the District Judge within whose local limits, there was the permanent abode of the deceased, or within whose jurisdiction the property, for which the probate is asked for, is situated, shall have the territorial jurisdiction. So in the instant case, both the deceased, namely Budhmalji – father of the appellant and Bachhrajji being brother of the appellant had permanent abode in Ahmedabad and said fact has not been controverted by anybody and, therefore, considering the provisions contained in section 270 of the Act, City Civil Court, Ahmedabad has the territorial jurisdiction to hear and decide these applications. 6. Section 273 of the Act contemplates situation when the probate or letters of administration already issued gets conclusiveness. In proviso [b] of section 273, it is provided that the probate or letters of administration issued by the District Judge, unless otherwise directed by the grant, shall have the effect throughout the State where the deceased, at the time of his death, had a fixed place of abode situated within the jurisdiction of such Judge and such Judge certifies that the value of the property and estate affected beyond the limits of the State does not exceed Rs.10,000/-. In the instant case, it is true that the value of the property situated in Bombay is more than Rs.10,000/-. Ld. City Civil Judge, considering the provisions contained in section 273 of the Act, as enabling provisions for jurisdiction of his Court, came to the conclusion that by virtue of said provisions he has no territorial jurisdiction. As a matter of fact, section 270 of the Act makes provision regarding the territorial jurisdiction of the Court. Over and above this, it appears that the trial Court read the provisions contained in section 273 of the Act in isolation and failed to consider said provisions along with the provisions contained in sub-section [3] of section 283 of the Act. Over and above this, it appears that the trial Court read the provisions contained in section 273 of the Act in isolation and failed to consider said provisions along with the provisions contained in sub-section [3] of section 283 of the Act. This provision prescribes the procedure as to how a probate application to be proceeded further in case of property, for which the probate is claimed, is situated within the territorial jurisdiction of another District Judge. It provides that where any portion of the assets has been stated by the petitioner to be situated within the jurisdiction of a District Judge in another State, the District Judge issuing the same shall cause a copy of the citation [a public notice] 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. Mr. Gandhi, Ld. Counsel relied upon the decision rendered in the case of Basanti Devi v. Raviprakash Ramprasad Jaiswal reported in 2008 [1] G.L.H. 60, wherein in para. 17 of the said decision, considering sub-section [3] of section 283 of the Act, the Hon'ble Apex Court has observed that these are the provisions which are mandatory in nature and once the statutory requirements are found to have not been complied with, an application for revocation of the grant of probate would be maintainable. Ultimately, the Hon'ble Apex Court allowed the appeal and remitted the matter to the concerned Probate Court for compliance with the aforesaid provisions. In the said decision, the Hon'ble Apex Court, relying upon the provisions contained in section 283[3] of the Act, held that the application for grant of probate is a proceeding in rem. In this view of the matter, instead of dismissing the applications by the concerned City Civil Court by holding that the provisions contained in section 283 [3] of the Act has not been complied with, the concerned Court should have followed those provisions. Under such circumstances, both these applications deserve reconsideration by the concerned Court after the concerned Court follows the procedure laid down under sub-section [3] of section 283 of the Act. 7. Under such circumstances, both these applications deserve reconsideration by the concerned Court after the concerned Court follows the procedure laid down under sub-section [3] of section 283 of the Act. 7. So far as dismissal of C.M.A. No. 764/2009 is concerned, one additional reason assigned by the concerned Court is that the father of the appellant had died in the year 1983 and after about 26 to 27 years the appellant filed this application seeking probate certificate on the basis of the will executed by his father in the year 1982 and, therefore, the said application was held to be hopelessly time barred. In the case of Krishan Kumar Sharma v. Rajesh Kumar Sharma [supra] the Hon'ble Apex Court, relying upon earlier decision of the Hon'ble Apex Court rendered in the case of Kunvarjeet Singh Khandpur v. Kirandeep Kaur [supra] held that under the Limitation Act, no period is advisedly prescribed within which an application for probate, letters of administration or succession certificate must be made. It has further been held that assuming that under Article 137 of the Limitation Act, the right to apply necessarily accrues on the date of the death of the deceased, then the same is unwarranted. It has been, therefore, held that such an application is for the Court's permission to perform a legal duty created by a will or for recognition as a testamentary trustee and is a continuous right which can be exercised any time after the death of the deceased, as long as the right to do so survives and the object of the trust exists or any part of the trust, if created, remains to be executed. The right to apply would accrue when it becomes necessary to apply which may not necessarily be within 3 years from the date of the deceased's death. Therefore, in light of the observations made by the Hon'ble Apex Court, the conclusion arrived at by the City Civil Court that the application is time barred, cannot be sustained. 8. Both these appeals, therefore, merit acceptance. The impugned judgments and orders rendered by the Ld. City Civil Judge, Ahmedabad, deserve to be set aside. Therefore, in light of the observations made by the Hon'ble Apex Court, the conclusion arrived at by the City Civil Court that the application is time barred, cannot be sustained. 8. Both these appeals, therefore, merit acceptance. The impugned judgments and orders rendered by the Ld. City Civil Judge, Ahmedabad, deserve to be set aside. However, both the matters are required to be remanded to the concerned Court with the specific direction to follow the procedure required under sub-section [3] of section 283 of the Indian Succession Act, 1925 and thereafter, to decide both these applications afresh on merits on the basis of the material already available on record as well as on the basis of the evidence, if any, that would be adduced by the appellant. The appellant is directed to cooperate the concerned Court in complying with the requirements laid down in subsection [3] of section 283 of the Act. 9. For the foregoing reasons, both these appeals are allowed and the impugned judgments and orders rendered on 29/7/2010 by the Ld. City Civil Judge, Court No. 19, Ahmedabad in Civil Misc. Application Nos. 763 and 764 of 2009 are quashed and set aside and both the aforementioned Civil Misc. Applications are remanded to the concerned Court, as observed above in this judgment. There shall be no order as to costs.