Gujarat High Court
Pareshkumar Maganlal Patel vs Rathod Ranjanben D/O Amarsinh Somabhai ... on 9 May, 2019
Author: B.N. Karia
Bench: B.N. Karia
C/SA/185/2019 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SECOND APPEAL NO. 185 of 2019
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2019
In R/SECOND APPEAL NO. 185 of 2019
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PARESHKUMAR MAGANLAL PATEL
Versus
RATHOD RANJANBEN D/O AMARSINH SOMABHAI SOLANKI
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Appearance:
MR MEHUL S. SHAH, SR. ADVT. With MR SP MAJMUDAR(3456) for the
Appellant(s) No. 1
MR. HJ KARATHIYA(7012) for the Appellant(s) No. 1
for the Respondent(s) No. 1,2,3,4
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CORAM: HONOURABLE MR.JUSTICE B.N. KARIA
Date : 09/05/2019
ORAL ORDER
ORDER IN APPEAL:
The present appellant, who is the original respondent in Regular Civil Appeal No. 123 of 2017 before the court of learned 5th Additional District Judge, Vadodara, has challenged the order dated 20th March 2019 passed by the first appellate Court in Regular Civil Appeal No. 123 of 2017 by preferring this appeal under Section 100 of the Code of Civil Procedure (In short "CPC") Heard learned advocate for the appellant.
It was submitted by learned advocate for the appellant Page 1 of 6 Downloaded on : Mon Jul 01 00:21:48 IST 2019 C/SA/185/2019 ORDER that will was executed in favour of the present appellant in the year 2005 and appellant approached before the Civil Court praying for probate by filing Civil Application in the year 2006 and accordingly, the probate application was allowed by the Court. The respondent preferred an appeal before the District Court wherein District Court erroneously ignored the provisions of the law, particularly, Article 137 of the Limitation Act allowing the appeal preferred by the respondent. It was further submitted that the judgment and decree passed in Regular Civil Appeal No. 123/2017 is contrary to record and provisions of law. That, in previous proceedings while applying for granting probate by the appellant, public notice was issued in the newspaper and the objections raised by the predecessor of the respondents were withdrawn by them. That, Will was properly proved by the present appellant. That, the ground raised by the respondent in revocation application after passing of suitable time were not to be considered in the application preferred by the respondent in the year 2014. However, first appellate court has committed an error in considering the ground raised by the respondent and wrongly applied provision of Article 137 of Page 2 of 6 Downloaded on : Mon Jul 01 00:21:48 IST 2019 C/SA/185/2019 ORDER the Limitation Act. It was further submitted that the respondent has also filed Civil Suit No. 436/2013 before the Civil Court at Vadodara for challenging the will executed in favour of the appellant, which is pending before the court for adjudication. In support of his arguments, learned advocate for the appellant has placed reliance in case of "Lynette Fernandes v. Gertie Mathlas since deceased by LR, reported in 2018(1) SCC 271 wherein in Para 19, Hon'ble Apex Court has observed as under:
"One must keep in mind that the grant of probate by a competent court operates as a judgment in rem and once the probate to the will is granted, then such probate is good not only in respect of the parties to the proceedings, but against the world. If the probate is granted, the same operates from the date of the grant of the probate for the purpose of limitation under Article 137 of the Limitation Act in proceedings for revocation of probate"
Issue requires consideration. Hence, this appeal is admitted.
Following substantial questions of law are framed to determine this appeal.
Page 3 of 6 Downloaded on : Mon Jul 01 00:21:48 IST 2019 C/SA/185/2019 ORDER
(A) Whether the learned appellate Court below has committed substantial error of law in allowing the appeal of the respondents for revocation of probate by ignoring the settled principles with regard to the revocation of the probate as laid down under Section 263 of the Indian Succession Act?
(B) Whether the learned appellate Court below has committed substantial error of law in not considering that the respondents had no locus standi to prefer the appeal?
(C) Whether the learned appellate Court below has committed substantial error of law in not appreciating the fact that the appeal of respondents was time barred? (F) Whether the learned appellate Court below has committed substantial error of law in holding that Will of a person is to be treated as transfer of property, and therefore, the restriction of tenure of land is applicable to Wills?
Other questions are covered by the questions framed by the court therefore, they are not necessary to frame separately. Page 4 of 6 Downloaded on : Mon Jul 01 00:21:48 IST 2019 C/SA/185/2019 ORDER ORDER IN CIVIL APPLICATION:
Leave to amend.
Rule returnable on 4th July 2019.
Heard learned advocate for the applicant.
It was submitted by learned advocate for the applicant that will was executed in favour of the present appellant in the year 2005 and appellant approached before the Civil Court praying for probate by filing Civil Application in the year 2006 and accordingly, the probate application was allowed by the Court. The respondent preferred an appeal before the District Court wherein District Court erroneously ignored the provisions of the law, particularly, Article 137 of the Limitation Act allowing the appeal preferred by the respondent. It was further submitted that the judgment and decree passed in Regular Civil Appeal No. 123/2017 is contrary to record and provisions of law. That, in previous proceedings while applying for granting probate by the appellant, public notice was issued in the newspaper and the objections raised by the predecessor of the respondents were withdrawn by them. That, Will was properly proved by the present appellant. That, the ground raised by the respondent Page 5 of 6 Downloaded on : Mon Jul 01 00:21:48 IST 2019 C/SA/185/2019 ORDER in revocation application after passing of suitable time were not to be considered in the application preferred by the appellant in the year 2014. However, first appellate has committed an error in considering the ground raised by the respondent and wrongly applied provision of Article 137 of the Limitation Act.
It was further submitted that as the Civil Suit No. 436/2013 filed by the respondent challenging the will in dispute is pending before the Civil Court for adjudication and the grounds raised in the suit by the respondent would certainly affected. The findings arrived at by the first appellate Court in the judgment and order passed in Regular Civil Appeal No. 123 of 2017 are contrary to law and facts. Hence, it was requested by learned advocate for the applicant to maintain status-quo with respect to the suit property.
Considering the abovesaid facts and arguments advanced, the judgment and order dated 20th March 2017 passed by the first appellate Court in Regular Civil Appeal No. 123/2017 shall be stayed till the next date of hearing.
(B.N. KARIA, J) K. S. DARJI Page 6 of 6 Downloaded on : Mon Jul 01 00:21:48 IST 2019