Gujarat High Court
Sherali Bhanji Bhimani vs Riteshkumar Chandrakant Rathod ... on 31 March, 2023
C/SCA/4273/2022 CAV JUDGMENT DATED: 31/03/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 4273 of 2022
With
CIVIL APPLICATION (FOR VACATING INTERIM RELIEF) NO. 1 of 2022
In R/SPECIAL CIVIL APPLICATION NO. 4273 of 2022
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE SANDEEP N. BHATT
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1 Whether Reporters of Local Papers may be allowed YES
to see the judgment ?
2 To be referred to the Reporter or not ? YES
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 ?
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SHERALI BHANJI BHIMANI
Versus
RITESHKUMAR CHANDRAKANT RATHOD THROUGH POA SEJALBEN
RITESHKUMAR RATHOD
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Appearance:
MR DIGANT B KAKKAD(6523) for the Petitioner(s) No. 1
MR VINODKUMAr SHUKLA WITH MANOJ SHRIMALI(2331) for the
Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 31/03/2023
CAV JUDGMENT
1. Rule returnable forthwith. Mr. Manoj Shrimali, learned advocate appearing waives service of notice of rule for and on Page 1 of 32 Downloaded on : Fri Mar 31 20:55:17 IST 2023 C/SCA/4273/2022 CAV JUDGMENT DATED: 31/03/2023 behalf of the respondent
2. Present petition is filed being aggrieved by the impugned judgment and order dated 22.10.2021 passed below Exh.18 in Civil Misc. Application No.51 of 2017 by the learned 3 rd Additional Senior Civil Judge, Porbandar.
3. Brief facts of the present case are as under:-
3.1 That one Shri Chandrakant Chhaganlal Rathod has executed a Will 18.01.2017 and he has expired at Dhirubhai Ambani Hospital, Mumbai, on 24.04.2017. The deceased was residing at his permanent resident at 703, Midhara apartment, Opposite Ashok Pan House, City Light Road, Surat City, Surat. The petitioner herein has sought for probate certificate from the Hon'ble High Court of Bombay vide Application No.TPL/2026 of 2019. The petitioner after filing the application before the Hon'ble Bombay High Court took up case research on the official website of the learned Court at Porbandar. The petitioner came across the one petition for succession certificate preferred by the respondent herein.Page 2 of 32 Downloaded on : Fri Mar 31 20:55:17 IST 2023
C/SCA/4273/2022 CAV JUDGMENT DATED: 31/03/2023 Thereafter, the petitioner obtained certified copy thereof. The said application for succession certificate has filed without joining other lineal descendants of the deceased. Therefore, on 19.07.2019, the appetitioner approached the learned trial Court at Porbandar with objection application praying for dismissal of petition for succession certificate filed by the respondent. There respondent had filed reply to this application as well as objection to the application and the learned trial court, Porbandar upon hearing the parties; present petitioner as well as respondent rejected the objection application as if the same being application for joining as legal heir of the deceased persons and therefore, present petition is filed by contending that the learned trial Court has considered such application as if it is filed for jointing as legal heirs and the said order is passed without dealing with the contention raised pertaining to Section-372 of the Indian Succession Act as well as other contentions pertaining to grant of succession certificate. Therefore, the petitioner is praying to exercise the powers under Article 227 of the Constitution by this Court by quashing and setting aside the impugned order and also, has sought writ of prohibition against such proceedings pending Page 3 of 32 Downloaded on : Fri Mar 31 20:55:17 IST 2023 C/SCA/4273/2022 CAV JUDGMENT DATED: 31/03/2023 before the learned trial Court at Porbandar.
4. Heard Mr. Digant Kakkad, learned advocate appearing for the petitioner and Mr. Vinodkumar Shukla, learned advocate appearing with Mr. Manoj Shrimali, learned advocate for the respondent.
5. Mr. Digant Kakkad, learned advocate appearing for the petitioner has submitted that the petitioner is the objector to the grant of the Succession Certificate, whereas the respondent herein is the applicant- petitioner for obtaining certificate under the Indian Succession Act before the learned Principal Senior Civil Judge, Porbandar in Succession Certificate Petition no.51 of 2017. He has further submitted that the application for joinign as party opponent by the petitioner to the above proceedings of Succession Certificate was rejected by the learned trial Court on the very erroneous and clumsy ground, He has drawn my attention towards the some events which are relevant for deciding present petition. He submitted that two flats were sought to be purchased by the deceased Chandrakant Chhganlal Rathod and his son Page 4 of 32 Downloaded on : Fri Mar 31 20:55:17 IST 2023 C/SCA/4273/2022 CAV JUDGMENT DATED: 31/03/2023 Riteshkumar. Agreement for sale and transfer forms are executed in favour of the petitioner herein, whereas the petitioner has already paid the full amount of consideration. He has further submitted that on 18.01.2017, the deceased as left his last Will and testament. He has further submitted that on 22.04.2017, late Shri Chandrakant Chhaganlal Rathod had died at Kokilaben Dhiruben Ambani Hospital, Mumbai, who has permanent residence at Surat. He has further submitted that based upon the said Will, the petitioner herein by way of preferring application, numbered as TPL/2026 of 2019 has sought for probate certificate from the Hon'ble High Court of Bombay in the year 2019. He further submitted that from the reading of the said Will, it transpired that there are several properties of deceased and such properties are fairly distributed amongst all legal heirs of deceased. He further submitted that during the research on official website of learned Court at Porbandar, the petitioner came to know about the application for succession certificate, which is preferred by the respondent herein, is pending. He further submitted that the said succession application is found to be filed on 18.09.2017 by only one legal heir and other legal Page 5 of 32 Downloaded on : Fri Mar 31 20:55:17 IST 2023 C/SCA/4273/2022 CAV JUDGMENT DATED: 31/03/2023 heirs of the deceased are not joined as necessary party. He further submitted that on 19.07.2019, the petitioner has preferred objections alongwith application to be joined as proper party to the above application for succession certificate before the learned trial Court at Porbandar. He further submitted that on 22.10.2021, the learned Civil Judge, Porbandar rejected the application for joining as party by the petitioner on the ground that the petitioner is not a legal heir of the deceased. But, at this stage, petitioner submits that this apparently illegal because as per the Will dated 18.01.2017, the petitioner is definitely a beneficiary and therefore, interested party. He further submitted that the petitioner has also prayed for writ of prohibition as the proceedings before the Civil Court at Porbandar is absolutely without jurisdiction an application under section 372 of the Succession Act has been initiated to obtain succession certificate qua immovable properties. He further submitted that it is clear from the plain reading of Section 372(f) as well as settled principal that the succession certificate cannot be issued for immovable properties. Hence, the application filed by the respondent before the Court at Porbandar is wholly without jurisdiction Page 6 of 32 Downloaded on : Fri Mar 31 20:55:17 IST 2023 C/SCA/4273/2022 CAV JUDGMENT DATED: 31/03/2023 and therefore, prayer-A is required to be allowed.
6. Mr. Digant Kakkad, learned advocate further submitted that as per Section-371 of the Succession Act, it is crystal clear that any application under such act could only be filed either at the permanent address of the deceased or where he died. In the present case, it is clear from Page-13 that the permanent residence of the deceased was at Surat and he died at Mumbai. Therefore, he has submitted that any such application should be filed at either Surat or Mumbai. Therefore, the Court at Porbandar ha lack of jurisdiction. He has relied upon the decision of the Hon'ble Apex Court which are as under:-
(i) AIR 1955 SC 233 (Relevant Paragraphs-15, 16, 20, 21) "15. The first respondent relied on the decision in Clifford O'Sullivan (1921] 2 A.C. 570) as authority for the position that no writ could be issued against a Tribunal after it had ceased to exist. There, the facts were that the appellants had been tried by a military Court and convicted on 3-5-1921. They applied on 10-5-1921 for a writ of prohibition against the officers of the Court, and that was refused on the ground that they bad become Page 7 of 32 Downloaded on : Fri Mar 31 20:55:17 IST 2023 C/SCA/4273/2022 CAV JUDGMENT DATED: 31/03/2023 functi officio. The respondent contended that on the same reasoning certiorari against the decision of an Election Tribunal which bad become functus officio should also be refused, and he further relied on the observations of Atkin, L.J. in Rex v. Electricity Com-
missioners; London Electricity Joint Committee Co.Exparte ([1924] 1 K B. 171, 204, 205) as establishing that there was no difference in law between a writ of prohibition and a writ of certiorari.
What is stated there is that both writs of prohibition and certiorari have for their object the restraining of inferior courts from exceeding their jurisdiction, and they could be issued not merely to courts but to all authorities exercising judicial or quasi-judicial functions. But there is one fundamental distinction between the two writs, and that is what is material for the present purpose. They are issued at different stages of the proceedings. When an inferior court takes up for hearing a matter over which it has no jurisdiction, the person against whom the proceedings are taken can move the superior court for a writ of prohibition, and on that, an order will issue forbidding the inferior court from continuing the proceedings. On the other band, if the court hears that cause or matter and gives a decision, the party aggrieved would have to move the superior court for a writ of certiorari, and on that, an order will be made quashing the decision on the ground of want of jurisdiction. It might happen that in a proceeding before the inferior Page 8 of 32 Downloaded on : Fri Mar 31 20:55:17 IST 2023 C/SCA/4273/2022 CAV JUDGMENT DATED: 31/03/2023 court a decision might have been passed, which does not completely dispose of the matter, in which case it might be necessary to apply both for certiorari and prohibition- certiorari for quashing what had been decided, and prohibition for arresting the further continuance of the proceeding. Authorities have gone to this extent that ,in such cases when an application is made for a writ of prohibition and there is no prayer for certiorari, it would be open to the Court to stop further proceedings which are consequential on the decision. But if the proceedings have terminated, then it is too late to issue prohibition and certiorari for quashing is the proper remedy to resort to. Broadly speaking, and apart from the cases of the kind referred to above, a writ of prohibition will lie when the proceedings are to any extent pending and a writ of certiorari for quashing after they have terminated in a final decision.
16. Now, if a writ of prohibition could be issued only if there are proceedings pending in a court, it must follow that it is incapable of being granted when the court has ceased to exist, because there could be then no proceeding on which it could operate. But it is otherwise with a writ of certiorari to quash, because it is directed against a decision which has been rendered by a court or tribunal, and the continued existence of that court or tribunal is not a condition of its decision being annulled. In this context, the following passage from Juris Corpus Secundum, Volume 14, page 126 may be usefully quoted: Page 9 of 32 Downloaded on : Fri Mar 31 20:55:17 IST 2023
C/SCA/4273/2022 CAV JUDGMENT DATED: 31/03/2023 "Although similar to prohibition in that it will lie for want or excess of jurisdiction, certiorari is to be distinguished from prohibition by the fact that it........ is directed to the cause or proceeding in the lower court and not to the court itself, while prohibition is a pre- ventive remedy issuing to restrain future action and is directed to the court itself".
The decision in Clifford O'Sullivan(1) which was concerned with a writ of prohibition is, therefore, inapplicable to a writ of certiorari to quash. It has also to be noted that in that case as the military Court had pronounced its sentence before the application was filed, a writ of prohibition was bound to fail irrespective of the question whether the Tribunal was functus officio or not, and that is the ground on which Viscount Cave based his decision. He observed:
"A further difficulty is caused to the appellants by the fact that the officers constituting the so-called military Court have long since completed their investigation and reported to the commanding officer, so that nothing remains to be done by them, and a writ of prohibition directed to them would be of no avail. [See In re Pope(2) and Chabot v. Lord Morpeth(3)]".
20. We are also of opinion that the Election Tribunals are subject to the superintendence of the High Courts under article 227 of the Constitution, and that Page 10 of 32 Downloaded on : Fri Mar 31 20:55:17 IST 2023 C/SCA/4273/2022 CAV JUDGMENT DATED: 31/03/2023 superintendence is both judicial and administrative. That was held by this Court inWaryam Singh and another v. Amarnath and another(2), where it was observed that in this respect article 227 went further than section 224 of the Government of India Act, 1935, under which the superintendence was purely administrative, and that it restored the position under section 107 of the Government of India Act, 1915. It may also be noted that while in a certiorari under article 226 the High Court can only annul the decision of the Tribunal, it can, under article 227, do that, and also issue further directions in the matter. We must accordingly hold that the application of the appellant for a writ of certiorari and for other reliefs was maintainable under articles 226 and 227 of the Constitution.
21. Then the question is whether there are proper grounds for the issue of certiorari in the present case. There was considerable argument before us as to the character and scope of the writ of certiorari and the conditions under which it could be issued. The question has been considered by this Court in Parry & Co. v. Commercial Employees' Association, Madras(AIR 1952 SC 179), - Veerappa Pillai v. Raman and Raman Ltd., AIR 1952 SC 192 (M); - Ibrahim Aboobaker v. Custodian General( of Evacuee Property New Delhi, AIR 1952 SC 319 (N) and quite recently in AIR 1954 SC 440(C). On these authorities, the following propositions may be taken as established: (1) Certiorari will be issued for correcting errors of jurisdiction, as when an inferior Court or Tribunal acts without jurisdiction or in excess of Page 11 of 32 Downloaded on : Fri Mar 31 20:55:17 IST 2023 C/SCA/4273/2022 CAV JUDGMENT DATED: 31/03/2023 it, or fails to exercise it. (2) Certiorari will also be issued when the Court or Tribunal acts illegally in the exercise of its undoubted jurisdiction, as when it decides without giving an opportunity to the parties to be heard, or violates the principles of natural justice. (3) The Court issuing a writ of certiorari acts in exercise of a supervisory and not appellate jurisdiction. One consequence of this is that the Court will not review findings of fact reached by the inferior Court or Tribunal, even if they be erroneous. This is on the principle that a Court which has jurisdiction over a subject-matter has jurisdiction to de- cide wrong as well as right, and when the Legislature does not choose to confer a right of appeal against that decision, it would be defeating its purpose and policy, if a superior Court were to re-hear the case on the evidence, and substitute its own findings in certiorari. These propositions -are well settled and are not in dispute."
(ii) AIR 1967 SC 1274 (Relevant Paragraphs - 5) "The jurisdiction for grant of a writ of prohibition is primarily supervisory and the object of that writ is to restrain courts or inferior tribunals from exercising a jurisdiction which they do not possess at all or else to prevent them from exceeding the limits of their jurisdiction. In other words, the object is to confine courts or tribunals of inferior or limited jurisdiction within their bounds. It is well-settled that the writ of prohibition lies not only for excess of jurisdiction or for absence of Page 12 of 32 Downloaded on : Fri Mar 31 20:55:17 IST 2023 C/SCA/4273/2022 CAV JUDGMENT DATED: 31/03/2023 jurisdiction but the writ also lies in a case of departure from the rules of natural justice (See Halsbury's Laws of England, 3rd Edn., Vol. II, p. 114). It was held for instance by the Court of Appeal in The King v. North(1) that as the order of the judge of the consistory court of July 24, 1925 was made without giving the vicar an opportunity of being: heard in his defence, the order was made in violation of the principles of natural justice and was therefore an order made without jurisdiction and the writ of prohibition ought to issue. But the writ does not lie to correct the course, practice or procedure of an inferior tribunal, or a wrong decision on the merits of the proceedings. It is also well-established that a writ of prohibition cannot be issued to a court or an inferior tribunal for an error of law unless the error makes it go outside its jurisdiction (See Regina v. Comptroller- General of Patents and Designs,(1) and Parisienne Basket Shoes Proprietary Ltd. v. Whyte (59 CLR 369). A clear distinction must therefore be maintained between want of jurisdiction and the manner in which it is exercised. If there is want of jurisdiction then the matter is coram non Judice and a writ of prohibition will lie to the court or inferior tribunal forbidding it to continue, proceedings therein in excess of its jurisdiction."
7. Mr. Kakkad has further relied on the judgment of this Court reported in 2011 (2) GLR 1350 by contending that the judgment is squarely applicable with regard to issue of Page 13 of 32 Downloaded on : Fri Mar 31 20:55:17 IST 2023 C/SCA/4273/2022 CAV JUDGMENT DATED: 31/03/2023 territorial jurisdiction of the Court, who is granting probate or succession certificate. The paragraph-5 and 6 of the judgment of this Court reported in 2011 (2) GLR 1350 are as under:-
"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. 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 Page 14 of 32 Downloaded on : Fri Mar 31 20:55:17 IST 2023 C/SCA/4273/2022 CAV JUDGMENT DATED: 31/03/2023 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. 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 Page 15 of 32 Downloaded on : Fri Mar 31 20:55:17 IST 2023 C/SCA/4273/2022 CAV JUDGMENT DATED: 31/03/2023 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 re-consideration by the concerned Court after the concerned Court follows the procedure laid down under sub-section [3] of section 283 of the Act."Page 16 of 32 Downloaded on : Fri Mar 31 20:55:17 IST 2023
C/SCA/4273/2022 CAV JUDGMENT DATED: 31/03/2023
8. Mr. Kakkad further submitted that it is also without prejudice to his earlier contention, the deceased is survived by legal heirs, i.e. two daughters, wife and a son being a respondent herein and without joining any other legal heirs of the deceased, it is also bared as per law for non-joinder of necessary parties in view of Section 372(C) of Succession Act. He has further submitted that the petitioner had beneficiary upon the plain reading of the will and terefore, he is at least a proper party or necessary party to the impugned application before the Court at Porbandar and therefore, petition preferred by the petitioner is required to be allowed.
9. Per contra, Mr. Vinodkumar Shukla, learned advocate appearing for the respondent has strongly opposed the case of the petitioner and submitted that it is admitted fact that the original petitioner has no blood relationship or any other relationship with the deceased except a relation which exists between a buyer and a property dealer. He further submitted that now the question arises as to why the deceased, father of the original respondent would gift the properties worth more than Rs.6 crore to the original petitioner in the form of two Page 17 of 32 Downloaded on : Fri Mar 31 20:55:17 IST 2023 C/SCA/4273/2022 CAV JUDGMENT DATED: 31/03/2023 flats at Mumbai, which jointly purchased and owned by the original and his deceased father. He has further submitted that the most of the scheduled properties as mentioned in the schedule, which are part of original Will dated 05.12.2014 on the basis of which the succession petition was filed, were jointly purchased and owned by the original respondent and his deceased father and therefore, there is no question of the deceased father to exclude his only son and prefer giving all the properties to the original petitioner or his daughter by executing alleged Will dated 18.01.2017. He further submitted that the objection to the succession petition filed by the original petitioner was not maintainable as he is a third party qua the family of the respondent. He further submitted that the deceased i.e. father of the original respondent has ancestral house at Porbandar, where he was born, which is a property No.(i) in the Schedule of properties at Page 34 filed alongwith original petition seeking succession certificate. He has also drawn my attention towards electricity bill etc. were also filed with the succession petition to show the interest of his father in the property at Porbandar also. He has also drawn my attention towards the factum that after the death of Page 18 of 32 Downloaded on : Fri Mar 31 20:55:17 IST 2023 C/SCA/4273/2022 CAV JUDGMENT DATED: 31/03/2023 his father on 22.04.2017, he has advised to file succession petition before the court at Porbandar on 18.09.2017, based on the Original Will of the deceased dated 05.12.2014.
10. Mr. Shukla, learned advocate for the respondent has further submitted that thereafter, the said application as required under law was published in five different newspapers
- (1) Divya Bhaskar, Rajkot on 05.04.2018; (2) Divya Bhaskar, Ahmedabad on 07.05.2018; (3) Times of India, Mumbai on 05.04.2018; (4) Sunday Times, Mumbai on 08.04.2018 and (5) Loksattha Mumbai, Mumbai on 08.04.2018. However, no objection has been filed by any of the relative or family members of the deceased or any third party till the date of present petitioner has filed objection. E has further submitted that the petitioner has no locus as the respondent and his deceased father herein were residing at Dubai and doing business at Dubai and for the sake of convenience, as advised by the present petitioner, who is property dealer, the original respondent and his deceased father had issued two separate General Power Attorneys both dated 19.03.2012 in favour of petitioner herein authorizing him to acquire properties on Page 19 of 32 Downloaded on : Fri Mar 31 20:55:17 IST 2023 C/SCA/4273/2022 CAV JUDGMENT DATED: 31/03/2023 their behalf. He further submitted that by using the said General Power of Attorneys dated 19.03.2013 between the period 25.07.2013 to 13.03.2015, the original respondent and his deceased father had jointly purchased the following three properties through petitioner herein - property dealer i.e. (1) Flat No.1303, 13th Floor, Pearl Residency, Andheri West; (2) Shop No.1, Ground Floor, Gloria Mansion, Bhayander West, Thane; and (3) Flat No.04, 39 th Floor, Imperial Heights, Goregaon West. He further submitted that the petitioner has charged brokerage in respect of all the properties from the deceased as well as from the developers. One of the brokerage cheque/ receipt in respect of flat at Andheri West property has already been produced on the record. Learned advocate for the respondent as drawn my attention towards that receipt. He has further submitted that as the original respondent and is father were residing at Dubai, for the purpose of making periodic payments and other formalities with the developers, petitioner herein asked them to handover few blank signed cheques and papers, which the petitioner had promised to use, as and wen required for the purpose of making payments to the developers, only with prior Page 20 of 32 Downloaded on : Fri Mar 31 20:55:17 IST 2023 C/SCA/4273/2022 CAV JUDGMENT DATED: 31/03/2023 permission and with due consent of the respondent herein and is deceased father. However, as per the say of respondent, the petitioner misused the said blank signed cheques/ documents after the death of father of the respondent.
11. Mr. Shukla, learned advocate further submitted that after purchasing the aforesaid properties, the original respondent and his deceased father issued separate registered General Power of Attorneys all dated 08.11.2016 in favour of the petitioner herein and is wife, for maintenance and completion of formalities with the developer and housing society in respect of all the three properties. He has further submitted that father of respondent herein died on 22.04.2017 in the presence of the petitioner, who also attended his funeral. He has further submitted that after 15 months on 01.08.2018, after the death of father of respondent herein, the original petitioner by using General Power of Attorney dated 08.11.2016 of the deceased father of respondent, without informing the respondent herein, transferred the shop, which is mentioned at Page-34 of the petition in the schedule property and executed a registered agreement for sale dated Page 21 of 32 Downloaded on : Fri Mar 31 20:55:17 IST 2023 C/SCA/4273/2022 CAV JUDGMENT DATED: 31/03/2023 01.08.2018 in favour of his own daughter Resma Sherali Bhimani. Entire sale consideration amount of Rs.17 lakh was alleged to have been paid in cash by forging the cash receipts. He has further submitted that in this fraudulent transfer, the petitioner and his wife were General Power of Attorney holder of the Vendor i.e. the respondent herein and his deceased father. He further submitted that the petitioner and his wife were also General Power of Attorney holder of the Vendee i.e.his daughter, meaning thereby, the vendor and the purchaser were the same, which was very strange. He has further submitted that the agreement to sale dated 01.08.2018, which shown to be signed by the deceased, whereas, he ad already expired on 22.04.2017. The address of the Seller and Purchaser of the shop is the same i.e. residential address of the petitioner herein. He has submitted that thereafter, the respondent has filed a criminal complain and as per his submission, the present petitioner has forged the Will dated 18.01.2017 and the most prime properties ave been shown to have been given to the petitioner who was only a property dealer through whom the deceased and the present respondent had purchased the same properties. He further Page 22 of 32 Downloaded on : Fri Mar 31 20:55:17 IST 2023 C/SCA/4273/2022 CAV JUDGMENT DATED: 31/03/2023 submitted that the petitioner herein who claims to be the executor under the Will on 01.08.2018 fraudulently transferred to his own daughter, the show jointly owned by the deceased and the respondent herein at Bhayander by using General Power of Attorney dated 08.11.2016 of the deceased. And therefore, it is settled law that the conduct of an Executor of the Will should be above suspicion. He had further submitted that the respondent had filed a Criminal Case RCC No.503 of 2020 (old no. Cri. M.a. No.2146 of 2019) on 05.09.2019 against the original petitioner herein for fraudulently transferring aforesaid shop at Bhayander in the name of his daughter by committing a fraud and cheating. He has further submitted that the petitioner has also misused the old cheques, which are given by signing for the purpose of necessary payment towards the investments made on their behalf, which was misused by the present petitioner and he has deposited the said cheques, which were dishonoured He further submitted that the petitioner has misused about five cheques which were isued by the bank in favour of respondent in the year 2012 and 13, which the respondent gave to the petitioner for making payments to the developers in respect of Page 23 of 32 Downloaded on : Fri Mar 31 20:55:17 IST 2023 C/SCA/4273/2022 CAV JUDGMENT DATED: 31/03/2023 all the three properties, which were lying with the original petitioner, which were deposited. Since the cheques were bounced in the year 2019, yet the petitioner is trying to show that he has some interest in the properties in question while executing in his favour is not valid. Mr. Shukla, learned advocate further submitted that the petitioner herein has no locus to file objection in succession petition filed by the respondent and therefore, the present petition deserved to be dismissed.
12. I have considered the rival submissions at the bar and I have considered the provisions of Section-371 and 372 of the Succession Act, which are reproduced as under:-
"371. Court having jurisdiction to grant certificate.-- The District Judge within whose jurisdiction the deceased ordinarily resided at the time of his death, or, if at that time he had no fixed place of residence, the District Judge, within whose jurisdiction any part of the property of the deceased may be found, may grant a certificate under this Part."
372 Application for certificate. --
(1) Application for such a certificate shall be made to the District Judge by a petition signed and verified by Page 24 of 32 Downloaded on : Fri Mar 31 20:55:17 IST 2023 C/SCA/4273/2022 CAV JUDGMENT DATED: 31/03/2023 or on behalf of the applicant in the manner prescribed by the Code of Civil Procedure, 1908 (5 of 1908) for the signing and verification of a plaint by or on behalf of a plaintiff, and setting forth the following particulars, namely:--
(a) the time of the death of the deceased;
(b) the ordinary residence of the deceased at the time of his death and, if such residence was not within the local limits of the jurisdiction of the Judge to whom the application is made, then the property of the deceased within those limits;
(c) the family or other near relatives of the deceased and their respective residences;
(d) the right in which the petitioner claims;
(e) the absence of any impediment under section 370 or under any other provision of this Act or any other enactment, to the grant of the certificate or to the validity thereof if it were granted; and
(f) the debts and securities in respect of which the certificate is applied for.
(2) If the petition contains any averment which the person verifying it knows or believes to be false, or does not believe to be true, that person shall be deemed to have committed an offence under section 198 of the Indian Penal Code, 1860 (45 of 1860). 56
[(3) Application for such a certificate may be made in respect of any debt or debts due to the deceased creditor or in respect of portions thereof.] Page 25 of 32 Downloaded on : Fri Mar 31 20:55:17 IST 2023 C/SCA/4273/2022 CAV JUDGMENT DATED: 31/03/2023
13. From plain reading of Section-371, the submission made at the bar by Mr. Kakkad that any application is required to be filed either at Mumbai or Surat as the deceased was expired at Mumbai and lastly resided at permanent residence at Surat, the said aspect is not acceptable in view of reading of Section 371, where it is provided that the District Judge within whose jurisdiction any part of the property of the deceased may be found, may grant a certificate under this part. In the present case, the respondent and the father of the deceased was having properties situated at Porbandar and the deceased was borne at Porbandar, having ancestral properties there. Therefore, if the deceased was having a fixed place of residence at the time of his death, the place where his properties are situated would not be material for determining the jurisdiction of the court to which the application for grant of succession certificate would lie. I found that the contention raised at the bar by the learned advocate for the petitioner by resorting Section-371 is misconceived and required to be rejected as the learned Court at Porbandar has jurisdiction in view of specific provision provided under Section-371 of the Page 26 of 32 Downloaded on : Fri Mar 31 20:55:17 IST 2023 C/SCA/4273/2022 CAV JUDGMENT DATED: 31/03/2023 Act.
14. Now, the submission with regard to the applicability of Section-372(f) in the facts of the present case where it is contended by the learned advocate that in view of Section- 372(f) the succession certificate cannot be issued for immovable properties. To test this argument, this court has gone through the section-372(f) of the Act. Section-372(f) of the Act provided for the debts and securities in respect of which the certificate is applied for. It is also relevant to note that the provisions of Section-372(1)(a) to (f) also required to be perused. On bare perusal of the same, it clearly transpires that the present subject matter, where properties of the deceased were claimed, can be asked by succession certificate. Nothing clearly appears that the succession certificate cannot be granted for immovable properties. It is also further relevant to examine Section 370 of the Act. Section 370 of Act provides for a succession certificate shall not be granted under this part with respect to any debt or security to which a right is required by section 212 or section 213 to be established by letters of administration or probate. Page 27 of 32 Downloaded on : Fri Mar 31 20:55:17 IST 2023 C/SCA/4273/2022 CAV JUDGMENT DATED: 31/03/2023 And for that sections 212 and 213 required to be considered. Section 212 provides that right to intestate's property and section 213 provides for right as executor or legatee when established. For the ready reference to this Court Sections 212 and 213 are reproduced as under:-
212. Right to intestate's property.--
(1) No right to any part of the property of a person who has died intestate can be established in any Court of Justice, unless letters of administration have first been granted by a Court of competent jurisdiction. (2) This section shall not apply in the case of the intestacy of a Hindu, Muhammadan, Buddhist, Sikh, Jaina, 1[Indian Christian or Parsi].
213. Right as executor or legatee when established.-- (1) No right as executor or legatee can be established in any Court of Justice, unless a Court of competent jurisdiction in 1[India] has granted probate of the Will under which the right is claimed, or has granted letters of administration with the Will or with a copy of an 2 authenticated copy of the Will annexed. [(2) This section shall not apply in the case of Wills made by Muhammadans 3[or Indian Christians], or and shall only apply--
(i) in the case of Wills made by any Hindu, Buddhist, Sikh or Jaina where such Wills are of the classes specified in clauses (a) and (b) of section 57; and
(ii) in the case of Wills made by any Parsi dying, after Page 28 of 32 Downloaded on : Fri Mar 31 20:55:17 IST 2023 C/SCA/4273/2022 CAV JUDGMENT DATED: 31/03/2023 the commencement of the Indian Succession (Amendment) Act, 1962 (16 of 1962), where such Wills 4 are made within the local limits of the [ordinary original civil jurisdiction] of the High Courts at Calcutta, Madras and Bombay, and where such Wills are made outside those limits, in so far as they relate to immoveable property situated within those limits.]
15. Considering the all these sections, it clearly transpires that though there is gross lacuna on the part of the respondent herein, who has filed proceedings before the Court at Porbandar, who has not otherwise impleaded other decedents of the deceased, but the right of the objection to the present petitioner is required to be considered in light of the fact that once he has entered into some monetory transaction and he has interest in the properties in question and he has received the valid General Power of Attorneys executed by the deceased as well as by the present respondent in his favour. Moreover, he has entered into some agreement with the other parties pursuant to the said General Power of Attorneys and accordingly, said General Power of Attorneys are acted upon. Moreover, it transpires that the cheques were given, which are duly signed by the deceased as well as present respondent, which are deposited subsequently Page 29 of 32 Downloaded on : Fri Mar 31 20:55:17 IST 2023 C/SCA/4273/2022 CAV JUDGMENT DATED: 31/03/2023 by the petitioner and the same are dishonoured and therefore, considering the totality of the facts that the proceedings, pursuant to the Will dated 18.01.2017 which is executed in favour of the present petitioner, which is pending at large before the Hon'ble Bombay High Court by vide Application No.TPL/2026 of 2019, which included the properties, which are subject matter of the proceedings relates to present petition and also, by keeping in mind the judgment of the Hon'ble Apex Court reported in AIR 2008 SC 1420, whereby, the Hon'ble Apex Court has in substance, held that there is nothing in this Section to prevent such a nominee from claiming the certificate on the basis of nomination, who was claiming the death benefits arising out of the employment can always file an application under Section-372 of the Act. And therefore, if by considering that analogy to the case of the present petitioner, the petitioner who is also holding Will in his favour and also, taking into consideration the General Power of Attorneys executed by the deceased as well as present respondent herein in favour of petitioner and the blank cheques were in his possession though he is not related by blood. Considering the facts that the issue required to be Page 30 of 32 Downloaded on : Fri Mar 31 20:55:17 IST 2023 C/SCA/4273/2022 CAV JUDGMENT DATED: 31/03/2023 examined by the concerned competent Court at High Court of Bombay as well as Court at Porbandar in respect of the properties, I found that the application of the petitioner, who impleaded as the party - objector in the proceedings before the learned trial court at Porbandar is required to be considered properly and it seems that the petitioner may not be necessary party, but he is having interest by Will and hence, certainly proper party in view of the provision of Section 372, the petitioner can certainly remain present as objector with a view to avoid multiplicity of the proceedings and conflicting judgment. Though the claim of the respective parties will certainly be decided on its own merit or by following the due procedure of law by the respective Courts and therefore, there is reason made out to interfere with the impugned judgment and order of the learned trial Court by quashing and setting aside the impugned judgment and order.
16. In the facts and circumstances of the case, learned trial Court is directed to implead the present petitioner as objector in the proceedings pending before the learned trial Court at Porbandar and accordingly, the order dated 22.10.2021 Page 31 of 32 Downloaded on : Fri Mar 31 20:55:17 IST 2023 C/SCA/4273/2022 CAV JUDGMENT DATED: 31/03/2023 passed below Exh.18 in Civil Misc. Application No.51 of 2017 by the learned 3rd Additional Senior Civil Judge, Porbandar is hereby quashed and set aside. Learned trial Court is directed to proceed with the matter and decide the same in accordance with law as expeditiously as possible after giving proper opportunity of hearing to the respective parties.
17. With the above observations and directions, present petition is allowed. Rule is made absolute to the aforesaid extent.
ORDER IN CIVIL APPLICATION:-
Since the main petition today itself is decided finally by this Court, the Civil Application for vacating interim relief does not survive and the same is disposed of accordingly.
(SANDEEP N. BHATT,J) A. B. VAGHELA Page 32 of 32 Downloaded on : Fri Mar 31 20:55:17 IST 2023