Gujarat High Court
Savitaben Jamanbhai vs Kiranbhai Jamanbhai on 15 February, 2013
Author: Rajesh H.Shukla
Bench: Rajesh H.Shukla
SAVITABEN JAMANBHAI VADALIYAV/SKIRANBHAI JAMANBHAI VADALIYA....Defendant(s) C/FA/475/2013 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL NO. 475 of 2013 with CIVIL APPLICATION NO. 1883 OF 2013 ================================================================ SAVITABEN JAMANBHAI VADALIYA & 3....Appellant(s) Versus KIRANBHAI JAMANBHAI VADALIYA....Defendant(s) ================================================================ Appearance: MR CHINMAY M GANDHI, ADVOCATE for the Appellant(s) No. 1 - 4 MR MB GANDHI, ADVOCATE for the Appellant(s) No. 1 4 MR. ANSHIN DESAI for Respondent ================================================================ CORAM: HONOURABLE MR.JUSTICE RAJESH H.SHUKLA Date : 15/02/2013 ORAL ORDER
The present First Appeal has been preferred by the Appellants / Original Opponents being aggrieved with the impugned order passed by the learned Principal District Judge, Rajkot in Civil Miscellaneous Application No.565 of 2008 (New Number Civil Miscellaneous Application No. 103 of 2011) dated 7.2.2013 on the grounds set out in the memo of Appeal.
Heard learned Counsel Shri M.B.Gandhi for the Appellants. Learned Counsel Shri Gandhi has referred to the grounds and also the papers, which he has produced with the additional paper book, and tried to submit that the Appeal was preferred by the Respondent and the said Appeal was withdrawn as per the purshis dated 25.9.2008. He therefore submitted that when the Appeal itself has been withdrawn unconditionally, the application for revocation of the heirship certificate would not be maintainable. He has also referred to the provisions of Section 390 of the Indian Succession Act and submitted that the court below has passed an order without appreciating the fact that, if the Appeal under Section 388 is provided, such an application for revocation would not be maintainable. He has also submitted that once the Appeal has been withdrawn unconditionally, any such application would be bar on principal of res judicata. He has referred to and relied upon the judgment of the Hon'ble Apex Court reported in AIR 1987 SC 88 Sarguja Transport Service v. State Transport Appellate Tribunal, Gwalior and Others.
Learned Counsel Shri Gandhi has also referred to and relied upon the judgment of the Hon'ble Apex Court reported in AIR 1999 SC 509 M/s. Upadhyay & Co. v. State of U.P. and others, and submitted that having withdrawn the Appeal, such an application for revocation of application would not be maintainable. He has pointedly referred to the observations made in paragraph 12 of the said judgment. Learned Counsel Shri Gandhi therefore submitted that the background of the facts are also required to be considered, for which he has referred to the paper book and tried to submit that there is no prima facie evidence, which suggests that the original document Exhibit 15 has been misplaced or destroyed by the Appellants, and therefore, the order passed by the court below with regard to the execution or further action is erroneous. He submitted that the writing / the affidavit, which is stated to have been tampered with or allegedly forged, is a matter, which is required to be considered, and the court could not have made any observation, much less any such direction. He therefore submitted that, before coming to the conclusion, the court below has failed to appreciate the relevant provision of law and also has failed to appreciate Section 383 read with Section 390 of the Indian Succession Act. He has also referred to and relied upon the judgment reported in 9 GLR 668 Jhala Jagatsingji Faljibhai and others v. Jhala Amarsing Rahulsa, and submitted that where an Appeal is provided, then the application for revocation would not be maintainable. He therefore submitted that the present Appeal may be admitted.
Per contra, learned Advocate Shri Anshin Desai, who appears on caveat for the Respondent, has referred to the papers and submitted that the background of the facts may be considered that the heirship certificate was applied for by the Appellants / Original Opponents for the certificate and with the affidavit, which is stated to be forged and tampered. It has been discussed in the judgment that the certificate was granted without following the necessary procedure, including the mandatory requirement for issuance of notice to all concerned. He further submitted that, therefore, though the Appeal was preferred, ultimately, the application for revocation of the said certificate has been made as it was obtained by fraud. Learned Advocate Shri Anshin Desai submitted that infact the original was not available, for which the Respondent / Original Applicant in the revocation application had to file Special Civil Application No.14962 of 2011 and the High Court vide order dated 20.6.2012 has issued the direction to maintain the photo copy on record. He submitted that pursuant to this order of the Hon'ble High Court, a report has been called for and it has been stated that the Civil Misc. Application No.1143 of 2007 did not contain Exhibit 15, which is an affidavit of the Respondent. Therefore learned Counsel Shri Anshin Desai submitted that it is on the basis of such false and forge affidavit of the Respondent, the heirship certificate, which has been issued, was sought to be canceled, and accordingly, the application has been moved and the impugned order has been passed in Civil Misc. Application No.565 of 2008. He submitted that the court below has considered such submissions at length. He pointedly referred to some of the observations to highlight about the tampering with or fraud or the mischief. He pointedly referred to the observations:
Agreement dtd. 13/09/2007 produced at Exh.190, clearly shows that applicant herein had got all rights from the property of the family, but to avoid further litigation and misunderstanding, opponents herein had agreed to pay Rs.25,00,000/- within 6 months from the date of issuance of certificate. Therefore, on the basis of agreement dtd. 13/09/2007, the applicant herein has consented to issue the certificate. The said agreement dtd. 13/09/2007 was executed before Notary Shri G.L.Kotak having signed by all the heirs of deceased Jamanbhai Chhagan and it has been executed in triplicate. Copy of agreement dtd. 13/09/2007 produced at Exh.190, shows that Rs.25,00,000/- had to be paid to the applicant herein. The second of the agreement produced at Exh. 212., wherein opponents herein have changed the amount of Rs.25,00,000/- and after making a dot between 2 and 5 (2.5) they alleged that applicant herein is only entitled to get Rs.2.5 lacs and it was paid to him by the opponents herein after execution of the affidavit Exh.15 (Exh.189).
It is this affidavit (Exh.15), which is the crux of the matter for the purpose of deciding this relevant issue, where the alleged mischief or fraud is said to have been committed. Therefore, the court below has considered and passed the order, which is just and proper and may not be disturbed.
In view of this rival submissions, it is required to be considered whether the present First Appeal can be entertained or not.
Though, normally, as a appellate court, the First Appeals are required to be considered as the Appellant would have the right of appeal, and at least, on the basis of material and evidence, even at the admission stage, the matter is required to be considered. However, the facts of the case as reflected herein above are such that the usual conventional procedure of admitting the First Appeals would not be in the interest of justice as it would otherwise amount to grant of premium to dishonesty.
The fact remains that the Appellants herein, who are the Original Opponents have applied for issuance of the heirship certificate, which is stated to have been issued without notice and mainly on the basis of the affidavit (Exh.15) the said affidavit (Exh.15), which is said to have been executed by the Respondent herein, who is the Applicant in the Miscellaneous Civil Application No.565 of 2008 (for revocation) raised the specific contentions with regard to the aspect of mischief. There is no doubt that the Appeal was preferred, which was withdrawn without reserving a right. At the same time, what has been prayed is the revocation of the heirship certificate itself on the ground of fraud, which the law permits. Clause (b) of Section 383 of the Indian Succession Act provide:
That the certificate was obtained fraudulently by making of a false suggestion, or by the concealment from the Court of something material to the case;
It is also well accepted that any such order, which has been passed by some mischief or a fraud is nullity from the inception. The grant of any such certificate in favour of some person would not entitled him, and since, it is an issue, which is required to be considered on the basis of the material, it is not desirable to discuss at length in detail. At the same time, for the purpose of considering the present First Appeal, the prima facie observations, which have been made, are required to be noted. The court below has specifically observed referring to this very contention in paragraph 25 that:
This court is of the view that, if applicant herein after withdrawing the delay condonation application without permission of the court, if he files another delay condition application along with appeal, then he would be debarred or precluded in filing the fresh petition before the District Court, Rajkot. Here in the instant case, applicant herein has filed revocation petition before the same court under Sec. 383 of the Indian Succession Act for revocation of the heirship certificate. Therefore, there is no any bar for invoking jurisdiction to file a revocation petition.
Therefore, it has a reference to a two separate remedy available under a different provision of the statute, and since, such a revocation application is based on the ground of alleged fraud, it cannot be said that such an application is not maintainable inasmuch as it may come to the notice later on and that would not preclude the court from entertaining any such application. If the submissions made by learned Advocate Shri Gandhi that the res judicata or analogous principle would apply, then it would be a counter productive, that if such certificate is obtained on the basis of mischief or fraud, it should be allowed to perpetuate, and the provisions for revocation of such application itself would be redundant. Therefore, merely because there is a provision for an Appeal, does not preclude the party from making a separate application for revocation. However, the proceedings under the Indian Evidence Act have the object as a suit, whereas in the facts of the case, in light of Exh.15, the same have not been contested at all, and therefore, the submissions made by learned Counsel Shri M.B.Gandhi cannot be accepted, particularly when, there is a specific order passed by the High Court in Special Civil Application No.14962 of 2011 at the instance of the Respondent herein, who is the Applicant in the Application for revocation being Civil Misc. Application No.565 of 2008, and it requires that such a certificate is allowed to stand, would frustrate the very cause of justice, and therefore, it is in this peculiar circumstances, the present First Appeal has been treated as having heard finally.
Further, the court having prima facie found about the allegations of fraud or mischief, has passed the judicial order for lodging the complaint for the offence under the Indian Penal Code. It in this background, the present First Appeal filed by the Appellants cannot be entertained. The submissions have been made by learned Counsel Shri M.B.Gandhi that the Appeal may be admitted and complete stay of the operation of the order may be granted, meaning thereby, the heirship certificate may also remain stayed but, at the same time, he has requested that the order, by which the direction to lodge the complaint for the offence under the IPC would also remain stayed, which cannot be entertained. His further submission that the court may examine the prima facie case, would amount to encroaching upon the jurisdiction, which is not with the court inasmuch as it is for the competent court, who could take the cognizance for the alleged offence as and when the complaint is filed and the Appellants could take appropriate recourse as may be advised under the Criminal Procedure Code. By way of the present First Appeal, the stay of the order, which has been sought, would result in stalling even the lodging of the complaint for the fraud, which cannot be entertained.
Therefore, the entertainment of the First Appeal would have lead to granting a premium of dishonesty as the time would have been consumed, and therefore the present First Appeal deserves to be dismissed and accordingly stands dismissed.
Civil Application does not survive.
(RAJESH H.SHUKLA, J.) JNW Page 9 of 9