Gujarat High Court
Manubhai Babubhai Chavada vs Bhanubhai Babubhai Chavada on 30 July, 2018
Author: Akil Kureshi
Bench: Akil Kureshi, B.N. Karia
C/FA/2769/2018 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL No. 2769 of 2018
With
CIVIL APPLICATION No. 1 of 2018
FOR APPROVAL AND SIGNATURE:
HONOURABLE Mr. JUSTICE AKIL KURESHI
and
HONOURABLE Mr. JUSTICE B.N. KARIA
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1 Whether Reporters of Local Papers may be allowed to see the judgment
?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the judgment ?
4 Whether this case involves a substantial question of law as to the
interpretation of the Constitution of India or any order made
thereunder ?
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MANUBHAI BABUBHAI CHAVADA
Versus
BHANUBHAI BABUBHAI CHAVADA
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Appearance :
Mr KUNJAL D PANDYA(2259) for the PETITIONER(s) No. 1
for the RESPONDENT(s) No. 1,2,3,4
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CORAM: HONOURABLE Mr. JUSTICE AKIL KURESHI
and
HONOURABLE Mr. JUSTICE B.N. KARIA
30th July 2018
ORAL JUDGMENT (PER : HONOURABLE Mr. JUSTICE AKIL KURESHI)
This appeal is filed by the original plaintiff to challenge the judgment dated 31st March 2018 passed by the learned Page 1 of 12 C/FA/2769/2018 JUDGMENT Principal Senior Civil Judge, Anand in Spl. Civil Suit No.85 of 2014.
Being the First Appeal, the appellant is entitled to raise all the questions of law and facts. Ordinarily, First Appeal would be admitted for further hearing. However, we have heard learned advocate for the appellant at considerable length and we notice that the facts on record and the evidence is not very lengthy. There are peculiar facts which prompted us to examine the appeal itself at the admission stage. Having thus heard learned advocate for the appellant and having perused the oral as well as documentary evidence on record, we do not find any reason to admit the First Appeal. We would record our reasons for such conclusion hereafter.
The appellant-plaintiff had filed Special Civil Suit with a prayer for being granted one-fifth share in the movable and immovable properties mentioned in the schedule, after carrying out partition thereof. One Shri Babubhai Mathurbhai Chavada- father of the plaintiff had started business of milk and milk products from which he appears to have earned sizable income. Later on, he also branched into the business of nursery.
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C/FA/2769/2018 JUDGMENT Shri Babubhai Mathurbhai Chavada was married to one Manishaben. The couple had three sons and two daughters. Plaintiff-Manubhai being the eldest. For reasons which would become apparent as we go on narrating the facts, the plaintiff Manubhai Babubhai Chavada had been distant from the family physically as well as emotionally. Shri Babubhai Mathurbhai Chavada expired on 6th March 2010. His wife Manishaben passed away on 12th January 2011. The plaintiff filed the said suit in the year 2014 contending that his parents had left behind sizable movable and immovable properties without any partition between the sons and daughters. That, the plaintiff had one-fifth share in such property which the other brothers and sisters were not accounting for. They had been after the death of the parents, carrying on the business without giving accounts to the plaintiff. He, therefore, claimed relief of partition of the suit properties and for giving his one-fifth share therein. He also asked for accounts of the business of nursery from 6th March 2010 ie., the date of the death of his father and giving his due share in such profit. Significantly, in the suit itself, he had specifically stated that as per the Hindu law, his parents having left behind sizeable movable and Page 3 of 12 C/FA/2769/2018 JUDGMENT immovable properties mentioned in the schedule without partition, the plaintiff has one-fifth share ie., 20% thereof. When the plaintiff asked for his share in such properties from the other owners; particularly the defendant no.1 Bhanubhai Babubhai Chavada, such request was refused. In the suit the plaintiff also referred to the so-called "Will" dated 10th July 2009 jointly made by his father and mother. He contended that such Will was fraudulent and the beneficiaries of the Will had forced his parents to execute the same.
The defendants appeared and resisted the suit. Defendant no.1 filed a detailed written statement, in which he relied heavily on the Will dated 10th July 2009. He denied that the Will was fraudulent or ineffective. He contended that the Will was executed by his parents in presence of the witnesses. His father has signed the Will and the mother had put her thumb impression. He stated that one of the properties ie., Sub-plot no. 12 of Final Plot No. 32 of TP Scheme No. 4 was given to one Dr. Kamleshbhai Bhagwanbhai Shah, who is a close follower of Swami Vivekanand and runs an institution for the upliftment of poor children living in the nearby slums. He provides education to such children. Deceased Babubhai Chavada was Page 4 of 12 C/FA/2769/2018 JUDGMENT influenced by such activities of Dr. Kamleshbhai Shah and therefore had given part of his property to the said gentleman. He had thus disbursed all his properties which were self- acquired properties through this Will. He also contended that the plaintiff Manubhai had gone estrey. Though he was married and had children, he had fallen in love with his secretary and was in live-in relationship with her and because of this, he was also not focusing on the family business which led to sizable losses. He stayed with his secretary at Vadodara and then went to Madras for a long time. His such activities had tarnished image of the entire family. His father was a leading member of the community and was deeply hurt by the acts of the plaintiff. He had therefore written a letter on 24th March 1997 and put it in a sealed cover and told his family members that after his death, they should not allow the plaintiff to perform his last rites.
The plaintiff's examination-in-chief was produced at Exh. 40 which was along the line of the plaint. He was cross examined by the defendants. During such cross examination, he was shown the said Will dated 10th July 2009 jointly made by his father and mother. He identified the signature of his Page 5 of 12 C/FA/2769/2018 JUDGMENT father made thereon. He, of course, could not state whether the thumb impression was made by his mother. The Will was exhibited at Exh. 61. He was also shown the writing of 24th March 1997 purportedly made by his father. He admitted that the same was in the handwriting of his father. He also identified his father's signature made thereon. This document was exhibited at Exh. 63. He was also shown a public advertisement issued jointly by his father and his two brothers sometime in the month of November 2008 which was exhibited at Exh. 64. In such advertisement, in addition to declaring the death of Hiraben Mangalbhai Chavada, a close relative of Babubhai Mathurbhai Chavada on 11th November 2008 and keeping "Besna" on 17th November 2008, it was clarified and declared by Shri Babubhai that his son Manubhai had left the house since 20 to 22 years and that he has no relation with him nor his son has any right in his properties.
The deposition of defendant no.1 was recorded at Exh.68. He stressed that the father and mother had left a Will disinheriting the plaintiff because of his wavered ways of life. He had developed live-in relationship and had incurred huge losses in the business which his father had paid. He also Page 6 of 12 C/FA/2769/2018 JUDGMENT referred to the writings of his father dated 24th March 1997 Exh. 63.
One Bhikhabhai Abhaysinh Parmar was examined by the defendants at Exh.76. He was one of the two signatories to the Will, the other signatory having expired. In his examination- in-chief, he stated that the deceased Babubhai Chavada had called him at his house where his wife Manihsaben, advocate Shri Manharbhai Gohel, etc., were present. Babubhai had told him that he had prepared a Will and asked for his willingness to sign as a witness. That, advocate Shri MM Gohel, then obtained signature of Babubhai Mathubhai Chavada in presence of everyone on the Will and thumb impression of his wife Manishaben. He identified such signature and thumb impression on the document Exh.61.
On the basis of such evidence on record, the trial Court proceeded to decide the suit. The Court had raised several issues, more important being-whether the plaintiff proves that he had become joint owner of the suit properties by way of inheritance. The answer to this question was in the negative. The learned Judge had also raised an issue whether the plaintiff proves that the will was a fabricated Will or created Page 7 of 12 C/FA/2769/2018 JUDGMENT through force on the parents. Both these questions were answered in the negative. In the judgment, the trial Court proceeded on the basis that the properties in question were self acquired properties by Shri Babubhai Mathurbhai Chavada and this was an admitted position. The learned Judge referred to the provisions of Section 63 of the Indian Succession Act, 1925 and discussed the evidence on record to come to a conclusion that the Will was duly proved and the same was genuine. In the cross-examination of Bhikhabhai Abhaysinh Parmar-witness to the Will, the learned Judge did notice certain discrepancies. However, he was of the opinion that the same were not so fundamental as to disturb the very genuineness of the Will. The trial Court also referred to the strained relations between the plaintiff and his father, and the other family members. The trial Court also noticed that through the Will, Shri Babubhai Mathurbhai Chavada had given certain properties to the third parties ie., to persons who was not his family member. This according to the trial Court this was significant in the context of genuineness of the Will.
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C/FA/2769/2018 JUDGMENT The evidence on record is sufficiently clear. There is every indication to suggest that the plaintiff due to his personal behavior had developed strained relation with his father, mother and other family members. In his cross-examination, he has admitted that he had relation with his secretary and that he had gone to Madras with her, where he lived for nearly 20 years. He also admitted that the document Exh.63 was in the handwriting of his father and carried his father's signature. In the said document, his father had in no uncertain terms declared that after his death, his son Manubhai should not be allowed to perform his last rites. He also admitted the public notice Exh. 64, which as we noted earlier, was issued on the occasion of death of a relative of Shri Babubhai. While declaring the death and 'Besna' of a relative, Babubhai Chavada also added that his son Manubhai had left home since more than 20 years and he had no relationship with him any longer. There was thus voluminous and unimpeachable evidence suggesting that the deceased Babubhai Mathurbhai Chavada wanted nothing to do away with his eldest son Manubhai ie., the plaintiff. Whatever be the reason for the father to be so unhappy with his son, the fact remains that he Page 9 of 12 C/FA/2769/2018 JUDGMENT had clearly disinherited him. The contents of the Will Exh.61, therefore, should not come as a surprise. In this Will, Babubhai Mathurbhai Chavada bequeathed no part of his properties to the plaintiff. He distributed his various movable and immovable properties amongst his two sons and daughters. One plot he gave to Dr. Kamleshbhai Bhagwanbhai Shah. This was explained by the defendant no.1 in his written statement stating that Dr. Kamleshbhai was involved in philanthropic activities, and he was running a Center which was taking care of poor children living in the slums and giving proper education to them. That, the deceased was highly influenced by such activities be therefore donated one plot to Dr. Kamleshbhai. There are several reasons why neither the Will nor the contents can be annulled. Firstly, the plaintiff himself identified and admitted the signature of his father in the Will. We have perused the document. The Will contained a schedule of properties and there is meticulous narration as to which property will go to the sons, the daughters or the third person. On every page of the Will and on every page of the schedule of properties, there is signature of Shri Babubhai Mathurbhai Chavada, the witnesses and thumb impression of Page 10 of 12 C/FA/2769/2018 JUDGMENT Smt. Manishaben Babubhai Chavada. There was thus no possibility of any mischief. Further, as noted, the deceased Babubhai had since long made his displeasure with his eldest son clear during his life time. His act of totally disinheriting him from the properties was, thus a natural reaction. Except bare allegation made by the plaintiff that the Will was forcibly executed by his brothers and sisters, there is no further proof. When seen in light of other documents; particularly Exhs. 63 and 64, we have no reason to fault the findings of the trial Court. The contents of the Will were duly supported by witness Bhikhabhai. He was called by the deceased Babubhai at his residence in presence of advocate Manharbhai and others, where he obtained his signature as a witness to the Will. The said Will was also signed by the two other signatories.
The Will clearly refers to all the properties being self acquired properties by Shri Babubhai Mathurbhai Chavada. The intention of the makers of the Will was that all the properties would remain with Babubhai and his wife Manishaben till they live and after their death would go to the respective persons to whom they were bequeathed. The full effect of the Will would thus be felt only after the death of both Page 11 of 12 C/FA/2769/2018 JUDGMENT the testators. Smt. Manishaben died on 12th January 2011, after her husband passed away. The defendants received their assigned share under the Will on such date and not before. Counsel for the appellant, however, strongly argued that the trial Court committed a serious error by proceeding on the basis that it was an admitted position that the properties were self acquired properties of Shri Babubhai. He contended that the properties were joint family properties and Shri Babubhai could not have willed them away. However, this is contrary to the record. In the plaint itself; as noted, the plaintiff has described the properties as that of his father and mother which they left behind after their death without partitioning amongst their sons and daughters.
In the result, we find no substance in this Appeal. First Appeal is, therefore, dismissed.
[Akil Kureshi, J.] [B.N Karia, J.] Prakash Page 12 of 12