Gujarat High Court
Shivapriyaraje Kalakumar Bhogle (Thru ... vs Shrimant Sangramsinh Pratapsinhrao ... on 16 January, 2017
Author: Anant S. Dave
Bench: Anant S. Dave
C/CA/10580/2016 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CIVIL APPLICATION (LEAVE TO APPEAL) NO. 10580 of 2016
In
FIRST APPEAL (STAMP NUMBER) NO. 2930 of 2016
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE ANANT S. DAVE
and
HONOURABLE MR.JUSTICE A.Y. KOGJE
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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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SHIVAPRIYARAJE KALAKUMAR BHOGLE (THRU POA HOLDER RAMESH
THESIA)....Applicant(s)
Versus
SHRIMANT SANGRAMSINH PRATAPSINHRAO GAEKWAD & 10....Respondent(s)
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Appearance:
MR KAMAL TRIVEDI, SENIOR ADVOCATE assisted by MS SK VISHEN, and MR
ABHISHEKH MEHTA, ADVOCATES for the Applicant(s) No. 1
MR MIHIR THAKORE, SENIOR ADVOCATE assisted by MR ANUJ K TRIVEDI, ADVOCATE
for the Respondent(s) No. 8.2
MR DHAVAL D VYAS, ADVOCATE for the Respondent(s) No. 1 - 2
MR MIHIR JOSHI, SENIOR ADVOCATE assisted by MR SP MAJMUDAR, ADVOCATE for
the Respondent(s) No. 7.5
NOTICE SERVED for the Respondent(s) No. 5 , 7.1 - 7.5.3 , 8.1 - 8.2 , 11.1
NOTICE UNSERVED for the Respondent(s) No. 1 - 4 , 9.3 , 9.4.1 - 9.4.2 , 10.1 , 11 , 11.2 -
11.3
SHASHVATA U SHUKLA, ADVOCATE for the Respondent(s) No. 7.5
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CORAM: HONOURABLE MR.JUSTICE ANANT S. DAVE
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and
HONOURABLE MR.JUSTICE A.Y. KOGJE
Date : 16/01/2017
ORAL JUDGMENT (PER : HONOURABLE MR.JUSTICE ANANT S. DAVE)
1. This application is preferred by the applicant through her Power of Attorney holder seeking leave to appeal against consent terms dated 23.10.2013 as well as order /judgment and decree dated 23.10.2013 passed by the Court of 15th Additional Senior Civil Judge, Vadodara in Regular Civil Suit No.640 of 2003.
2. In this application, preferred seeking leave to appeal, it is claimed that applicant is one of the legatees of the properties of Late Smt.Shantadevi Gaekwad, testatrix as per Will dated 18.02.1992 read with Codicil dated 31.03.2002 and Codicil dated 01.04.2002 as well as properties of Smt.Mrunalinidevi Puar (elder sister of the mother of the applicant) as per Will dated 03.09.2012 and also a direct beneficiary of the share of the properties flowing from her mother Smt.Satvashila (Sarlaraje) Gaekwad (opponent No.10 herein) and this, directly inherits part of the property equal to her share in her capacity as grand daughter of Late Smt.Shantadevi Gaekwad in terms of the above Will and Codicil.
3. According to the applicant, though consent decree is passed on 23.10.2013, to which the applicant Page 2 of 29 HC-NIC Page 2 of 29 Created On Sat Aug 12 10:55:32 IST 2017 C/CA/10580/2016 JUDGMENT had no knowledge and when Smt.Mrunalinidevi Puar (opponent No.6 herein) passed away in Vadodara on 02.01.2015, a copy of her Will dated 03.09.2012 was provided to her by one of her cousins and going through the said Will dated 03.09.2012, the applicant made herself aware about the fact that the applicant was mentioned as one of the executors of the Will dated 03.09.2012. After due efforts and making an inquiry about the details of movable as well as immovable properties of the subject proceedings, the applicant has taken a conscious decision to file this application seeking leave to prefer appeal against judgment and decree, both dated 23.10.2013.
4. While taking us to factual background and pedigree of Late Smt.Shantadevi Gaekwad, Shri Kamal Trivedi, learned Senior Counsel appearing for the applicants drew our attention to contents of Will dated 18.02.1992 and Codicil dated 31.03.2002 and 01.04.2002, specifically para-7 of Will dated 18.02.1992 and Clause-4 of Codicil dated 31.03.2002 - Annexures-E and F respectively to the petition and contended that the applicant is aggrieved by consent decree inasmuch as, the applicant is not a signatory and never accorded any consent to the consent terms.
4.1 It is submitted that the manner in which
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amendments were moved to the plaint on 22.10.2013, viz. Exh.221, Exh.218, Exh.225 and Exh.229, whereby almost all members of Smt.Shantadevi Gaekwad family are brought on record, their names appear as parties, either as plaintiffs or defendants and next day on filing of compromise pursis, an order is passed in hurry, would indicate that the applicant is deprived of her legal right as well as legal injury caused to her and therefore, she is within her right to challenge such decree and as she is not able to challenge it by filing First Appeal as required under Section 96 of the Code of Civil Procedure, 1908, leave is sought for. 4.2 It is submitted that from para-7 of the Will executed by Smt.Shantadevi Gaekwad on 18.02.1992, it is clear that the applicant, being a grand-child, was entitled to the share so mentioned therein. The applicant being a grand-child and one of the five grand- daughters, her entitlement was mentioned. Even the manner in which Codicil dated 31.03.2002 and 01.04.2002 were executed, is in realm of doubt, which almost takes away all her legal entitlement accruing out of the Will. Our attention is drawn to contents of consent terms which referred to various movable and immovable properties situated at Vadodara and other places, viz. Mumbai, Delhi, etc. and Clause-7.11, by which it was clarified Page 4 of 29 HC-NIC Page 4 of 29 Created On Sat Aug 12 10:55:32 IST 2017 C/CA/10580/2016 JUDGMENT that the plaintiff was under no obligation to make any contribution for payment to be made to the grand-daughter of Late Smt.Shantadevi Gaekwad, i.e. the applicant under Clause-7 of the last Will and testament of Smt.Shantadevi Gaekwad dated 18.02.1992.
4.3 It is submitted that plaintiffs - P1, P2, P3, P4 and P5 and defendants - D1, D2/1, D2/2 and D2/3 and almost all legal heirs whether legatees of the Will or not, are given share in the properties and last column of the consent terms reveals that Advocate for defendant No.6/2 was also signatory, but no signature was put forth in the above consent terms by defendant No.6/2. Thus, family compromise under consent terms did take away right accrued out of the Will. Much emphasis is laid on the fact that the applicant, being grand-daughter and legatee of the Will, was legally entitled to receive her part of share. Shri Trivedi distinguished the claim of the applicant of equal right in the properties by referring to O-23 R-3 of the Code of Civil Procedure, 1908 and submitted that the applicant being aggrieved by such deprivation of legal right and injury /hurt caused to her, is entitled to file appeal and seek leave in filing appeal to exercise her legal right to quash and set aside the consent decree passed on consent terms, which deprived her of legal rights. It is submitted that even Page 5 of 29 HC-NIC Page 5 of 29 Created On Sat Aug 12 10:55:32 IST 2017 C/CA/10580/2016 JUDGMENT on the ground of equal treatment meted out to other legal heirs and legatees, whether named in Will or not, the applicant ought to have been joined in consent terms and benefits ought to have been granted on par with. In absence of her willingness or any signature on the consent terms, appreciation by the trial Court and recording satisfaction about contents of the such compromise and genuineness thereof is misconceived inasmuch as, it is indirectly presumed that the applicant is represented by the Advocate and this deserves to be considered by this Court granting leave as prayed for so an opportunity is available to the applicant to challenge the same by filing appeal.
4.4 Inter alia it is submitted that within two days, viz. moving of amendments by which plaintiffs and defendants came to be added and the date on which consent term was signed and Court passed order and decree, both in hurried manner reveals non-application of mind to the contents. Further, the trial Court has gone beyond its power and jurisdiction vested in a Court of law, which is empowered under the Hindu Succession Act for enforcing testaments and issuance of probates. Thus, by passing the order and decree, both on the same day, virtually a fraud is committed at the behest of the parties to the settlement with a sole objective of depriving the Page 6 of 29 HC-NIC Page 6 of 29 Created On Sat Aug 12 10:55:32 IST 2017 C/CA/10580/2016 JUDGMENT applicant of the benefits in the properties which would come to her share in inheritance as well as in terms of Will and Codicil of Smt.Shantadevi Gaekwad. 4.5 In support of various submissions, reliance is placed on following decisions:-
I. In the case of Kiran Arora Vs. Ram Prakash Arora, reported in AIR 1980 Del. 99. Our attention if drawn to paras-8, 9 and 10 of this judgment in which Section 23 of the Indian Contract Act, 1872 viz-a-viz O-23 of the Code of Civil Procedure, prior to amendment, is considered where it has been held that compromise was not lawful unless all the parties interested have consented to it and that it is not permissible to a Court to record a compromise where one of the interested parties has not consented to it and it not a party to the compromise.
II. In the case of M.N.Aryamurthy & Anr. Vs. M.D.Subbaraya Setty (dead) through LR & Ors., reported in (1972) 4 SCC, 1. In the context of joint family property under Mitakshara branch, father's power to Page 7 of 29 HC-NIC Page 7 of 29 Created On Sat Aug 12 10:55:32 IST 2017 C/CA/10580/2016 JUDGMENT divide family properties, who could not, under the Hindu law, dispose of by Will, joint family property or any part thereof and as a Will, it was clearly inoperative on various dispositions made by him, our attention is invited to paras-11 and 12 in which concept of family arrangement was discussed and in para-14, after discussing facts of that case, the Apex Court found that when one of the sons of the family is shown to have not accepted or participated in the family arrangement, the family arrangement as a binding agreement between the several coparceners must fail. The above decision, further in para-20, considering the question whether the defendants would, in law, be liable to account to the plaintiff for the profits earned by the defendants in their own business or for the acquisitions made by them in that business, while confirming the view of the High Court, it was held that on a partition by severance of the joint status, the members of the family become tenants-in-common of the family property. If one of the members remains Page 8 of 29 HC-NIC Page 8 of 29 Created On Sat Aug 12 10:55:32 IST 2017 C/CA/10580/2016 JUDGMENT in possession of the entire properties of the family, there is no presumption that the property, which as acquired by him after severance of the status, must be regarded as acquired for the family. III. In the case of Chandrabhai K.Bhoir & Ors.
Vs. Krishna Arjun Bhoir & Ors., reported in (2009) 2 SCC, page No.315, in which the Apex Court considered facts with regard to application of Section 302 of Succession Act, 1925, where one Kanha Barik Mahatre executed a Will on or about 08.09.1963, the legatees whereunder were the respondents. He expired on 06.08.1974.
An application for grant of probate in respect of the said will was filed by the respondents. The appellants filed a caveat thereto, pursuant whereto a suit was directed to be registered. In the said suit, a compromise was entered into by and between the parties. An agreement by way of family arrangement was also entered into by and between the parties on or about 02.12.1992. Respondent No.1 herein was the Executor of the said Will, Page 9 of 29 HC-NIC Page 9 of 29 Created On Sat Aug 12 10:55:32 IST 2017 C/CA/10580/2016 JUDGMENT who took out a Chamber Summons purported to be in terms of Section 302 of the Act claiming certain reliefs. By recording contentions and reproducing Section 302 of the Succession Act, the Apex Court found that a probate is granted in respect of Will. An executor is appointed to administer the estate of the testator in terms thereof. The Will ordinarily should be administered having regard to the last wishes of the testator himself. A probate when granted binds the whole world. It is a judgment in rem. In case of any conflict between the terms of the Will and the settlement, the former will prevail. IV. In the case of Hardevinder Singh Vs. Paramjit Singh & Ors., reported in (2013) 9 SCC, page No.261. In this case, the plaintiff, who claimed to be co-sharer, filed a suit and challenged the Will, where defendant No.5 (brother of the plaintiff) supported his case and trial Court decreed the suit and in appeal filed at the instance of defendant Nos.1 to 4, the judgment and decree was overturned.
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The plaintiff entered into a settlement
with the contesting defendants who had
preferred appeal. Such decree
prejudicially affected defendant No.5, who was benefited by the decree passed by the trial Court and same having been unsettled, the benefits accrued in his favour became extinct and thus, he suffered legal injury by virtue of overturning the decree. In the facts as above, when his legal right was affected accruing out of the decree in his favour, defendant No.5 was held to be an aggrieved person.
4.6 In the facts of this case, as recorded in consent terms, the original plaintiffs have agreed to withdraw all proceedings including probate application pending in the Court and that would jeopardies the right of the applicant.
4.7 With regard to preliminary objection raised by Shri Mihir Joshi, learned Senior Counsel for one of the respondents about delay of 2 years and 11 months and no application is filed to condone the delay, reliance is placed on following decisions:-
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HC-NIC Page 11 of 29 Created On Sat Aug 12 10:55:32 IST 2017 C/CA/10580/2016 JUDGMENT I. Decision of Division Bench of the Calcutta High Court in the matter of Dipankar Roy Vs. Pranab Kanti Mani, reported in 2007 SCC OnLine Cal. 232, where the Division Bench has taken a view that period of limitation in a case of third party, viz. A party which is not in the proceedings before the Court below and leave application is filed to prefer an appeal, such affected party, being a stranger to the proceedings, ordinarily is not entitled to prefer an appeal without obtaining specific leave from the Court. However, following the practice and procedure of the Court, application for leave to prefer an appeal is to be filed and in case if there is delay, if any, it would commence from grant of leave.
II. In the case of Bhagmal & Ors. Vs. Kunwar Lal & Ors., reported in (2010) 12 SCC, page No.159, which pertains to setting aside ex parte decree in revision under O-9, R-13 read with Sections 115 and 151 and Sections 5, 3 and Article 123 of the Limitation Act. The Apex Court considered Page 12 of 29 HC-NIC Page 12 of 29 Created On Sat Aug 12 10:55:32 IST 2017 C/CA/10580/2016 JUDGMENT certain facts of the case arising out of proceedings before the subordinate Court and the High Court and it was held that "even if it is held that limitation started from the knowledge about date of decree, there was a satisfactory explanation of the delay. Absence of application for condonation of delay was held to be inconsequential.
4.8 It is thus submitted that in the facts of this case, failure to prefer a separate application or prayer in this regard to condone delay, would not be fatal or to non-suit the applicant for the purpose of seeking leave.
5. Shri Mihir Joshi, learned Senior Counsel appearing for one of the respondents at the outset submitted that the present application is barred by delay and laches and the decree is passed on 23.10.2013 and this application is preferred on 27.09.2016, having delay of 2 years and 11 months, for which, even a reasonable explanation is not coming forth. It is submitted that law of limitation is subject to discretion that may be exercised by the Court and in case of not of inordinate delay, the Court may generally or ordinarily exercise such discretion in favour of a party praying to condone the delay, but in the facts of this case, when legal Page 13 of 29 HC-NIC Page 13 of 29 Created On Sat Aug 12 10:55:32 IST 2017 C/CA/10580/2016 JUDGMENT cases are taken up, instituted or filed by the parties against each other, who happened to be family members of the applicant, it is not believable that the applicant was either unmindful or oblivious to such litigation.
Even reasons stated in the application for explaining delay do not appear to be convincing and on this ground alone, the application deserves to be rejected. 5.1 While distinguishing the judgments cited by Shri Trivedi, learned Senior Counsel for the applicant, it is submitted by Shri Joshi that no law is laid down in the decisions in the case of Dipankar Roy (supra), Kiran Arora (supra) and Bhagmal & Ors (supra) and in the case of Bhagmal & Ors (supra), the Apex Court found hyper- technical view taken by the High Court when the applicant had not preferred an application for condonation of delay, but in the facts of the case, the Apex Court found that delay would start from the date of knowledge, which was sufficiently explained and delay was condoned. Thus, according Shri Joshi, none of the above decisions would be a binding precedent to this Court in rejecting this application in absence of prayer to condone delay by filing separate application.
5.2 However, on merits, Shri Mihir Joshi, learned Senior Counsel for one of the respondents would contend that whatever limited legal right accrued to the Page 14 of 29 HC-NIC Page 14 of 29 Created On Sat Aug 12 10:55:32 IST 2017 C/CA/10580/2016 JUDGMENT applicant so bequeathed by her and so referred to in Will dated 18.02.1992 in para-7, to which signatories had signed and confirmed the compromise and even if the decree drawn on the basis of compromise /consent terms is set aside hypothetically and the appeal is allowed, the applicant would be entitled to the share so mentioned in para-7 and modified by two Codicils.
5.3 It is submitted that various legal cases, civil as well as criminal, pending between the parties came to be negotiated, deliberated and ultimately to see that peace and harmony prevails in the family to avoid further litigation, wiser counsels have prevailed and irrespective of initial beneficiaries so mentioned in the Will or Codicils, or both, all members of the family have signed the consent terms and it would be beyond perception of any prudent man that all family members would conspire and enter into an act of fraud or any such illegal act only with a view to deprive the applicant of her share.
5.4 It is submitted that neither any legal right is violated nor any injury or hurt is caused to the applicant and as belated attempt is made by the applicant to rake-up the whole issue and unsettle the settlement, no leave as prayed be granted. It is submitted that in absence of any pre-existing right in the property and as Page 15 of 29 HC-NIC Page 15 of 29 Created On Sat Aug 12 10:55:32 IST 2017 C/CA/10580/2016 JUDGMENT the mother of the applicant, who has disowned her, is given her due share, it cannot be said that the applicant has any right, either under Succession Act or any other law for time being in force and in absence of any challenge to the Will or Codicils by the applicant, compromise /consent terms allowed to be produced on record and judgment and decree drawn on the basis of such terms in accordance with law, do not require to be disturbed at the behest of the applicant, having no legal right.
5.5 Learned Senior Counsel has further submitted that concept of fairness and equal treatment to be meted out to the applicant is borne out from the record and keeping intact the original benefits /share of the applicant in Will dated 18.02.1992, consent terms are signed, which would reveal that there was no ill- intention or malafide, much less any fraud on the part of the signatories.
5.6 Further distinguishing the decisions relied on by learned Senior Counsel for the applicant, it is submitted that the same would not be applicable and in the case of Kiran Arora (supra), admittedly preliminary decree for partition, in a suit filed, was already drawn and the Court was considering the facts in the context of Section 23 of the Indian Contract Act, 1872 and in the Page 16 of 29 HC-NIC Page 16 of 29 Created On Sat Aug 12 10:55:32 IST 2017 C/CA/10580/2016 JUDGMENT facts of this case, it cannot be said that the agreement is unlawful or forbidden by law. Even in the case of M.N.Aryamurthy (supra), the Apex Court was considering the facts to which reference is made earlier, but after applying law laid down in the case of Mohd. Amin Vs. Vakil Ahmad, AIR 1952 SC, 258, a father disposing of the properties under the Hindu law by Will in case of joint family property, was held to be inoperative on the basis of various dispositions made by father. In the facts of this case, the applicant is not even entitled for more than grant of share mentioned in the Will of 18.02.1982 and for which due care is taken in the consent terms and therefore, her not signing the consent terms will make no difference. Likewise, according to learned Senior Counsel for the respondent, in the case of Chandrabhai K.Bhoir (supra), where executor was seeking direction against himself, was held not maintainable and after discussing provisions of Section 302 of the Succession Act, 1925, it was held that if the agreement was not part of the Will, Section 302 will have no application and when executor is playing dual role with respect to the same property, viz. one as executor and other as developer, effect of such dual role would be only his action for that part, viz. for which he is a signatory. Section 302 application was held maintainable and remedy against his action as a developer has to be in an Page 17 of 29 HC-NIC Page 17 of 29 Created On Sat Aug 12 10:55:32 IST 2017 C/CA/10580/2016 JUDGMENT independent suit and not in proceedings under Section 302 of the Succession Act.
5.7 At the end, learned Senior Counsel would submit that in absence of any illegality in drawing consent term decree, based on consent terms, admittedly signed by all the legatees and members and inheritors of Smt.Shantadevi Gaekwad, the Court below has not committed any illegality and hence, the application deserves to he rejected.
6. If the issue involved in this application for grant of leave is examined in the backdrop of submissions made by learned Counsel for the parties, perusal of Will dated 18.02.1992, two Codicils dated 31.03.2002 and 01.04.2002 viz-a-viz O-23, R-3 and Section 96 of the Code of Civil Procedure, 1908, we find that para-7 of the Will dated 18.02.1992 reads as under:-
"7. I HEREBY BEQUEATH AND DEVISE and DIRECT that my INVESTMENTS IN SHARES, BONDS and DEPOSITS (other than those specifically mentioned and/or bequeathed elsewhere in this WILL), such as Shares in Public Limited Companies, Capital Investment Bonds and other bonds, Unit Trust of India, Bank accounts and deposits, etc. be distributed amongst the following of my family members in the proportions (percentage of total investment value or maximum amount, whichever is less) as Page 18 of 29 HC-NIC Page 18 of 29 Created On Sat Aug 12 10:55:32 IST 2017 C/CA/10580/2016 JUDGMENT specified below:
TO MY DAUGHTERS (except 5% or 30 lacs
Dr.Mrunalini Devi Puar) maximum each
Smt.Pramilaraje Khachar, Smt.
Sarlaraje Bhonsle,
Smt.Vasundhararaje Ghorpade &
Smt.Lalitaraje Krdutta
TO MY GRANDCHILDREN (except 1% or 10 lacs
Samarjitsingh R.Gaekwad) maximum each
(children of my sons and
daughters)
TO MY DAUGHTER-IN-LAW 4% or 25 lacs
Smt.Shubhanginiraje Ranjitsingh maximum
Gaekwad
(emphasis supplied)
The balance remaining (either percentage or absolute total amount) after this distribution is to be divided equally amongst my son Ranjitsingh Gaekwad, my grandson Samarjitsingh Ranjitsingh Gaekwad and Ranjitsingh Gaekwad HUF.
The manner of distribution or division of these investments, i.e. which/what &/or how a particular investment is inherited or is apportioned (goes) to a heir or beneficiary will be determined by the Executors of this WILL preferably by mutual consent of the heirs &/or beneficiaries."
6.1 Clause-4 of Codicil dated 31.03.1992 reads as under:-
"4. As most of the CIB bonds and other bonds /investments stated in may said WILL are encashed and the accounts realized are utilized by me during my life time I hereby revoke the direction given in my Page 19 of 29 HC-NIC Page 19 of 29 Created On Sat Aug 12 10:55:32 IST 2017 C/CA/10580/2016 JUDGMENT said will in respect of the bonds /investments which are encashed and realized. In addition, in respect of the unrealized bonds /investments if any remaining at the time of my death I direct that the same shall be bequeathed and given to my son Ranjitsingh solely."
6.2 Clause-7.11 of the consent terms reads as under:-
"7.11 The parties and each of them hereby irrevocably represents, warrants, declares and confirms that notwithstanding the terms or provisions of any legacy, (with the exception of the bequest to one granddaughter of Late Shantadevi Gaekwad, {i.e. Shivapriyaraje Bhogle}, under clause 7 of the Last Will and Testament of Shantadevi Gaekwad dated 18th February 1992} and in particular Clause 1{b} thereof, read with the 1st Codicil dated 31st March 2002 and the 2nd Codicil dated 1st April 2002 being contrary to and/or inconsistent with the provisions of these Consent Terms and the manner of distribution of the estate of Late Shantadevi Gaekwad as contained herein, all Parties and each of them specifically, irrevocably and unconditionally confirms the manner of distribution of the said estate of late Shantadevi Gaekwad as recorded herein and shall not at any later date for any reason whatsoever raise or make any claim, objection, contention whatsoever in this regard or in context of or in connection with the last Will Page 20 of 29 HC-NIC Page 20 of 29 Created On Sat Aug 12 10:55:32 IST 2017 C/CA/10580/2016 JUDGMENT and Testament of Shantadevi Gaekwad dated 18th February 1992 and in particular Clause 1{b} thereof, read with, the 1st Codicil dated 31st March 2002 and the 2nd Codicil dated 1st April 2002. It is clarified that the Plaintiffs shall be under no obligation to make any contribution for payment to be made to the granddaughter of Late Shantadevi Gaekwad, {i.e. Shivapriyaraje Bhogle}, under clause 7 of the Last Will and Testament of Shantadevi Gaekwad dated 18th February 1992.."
6.3 The reasonings given by the learned Judge in paras-3, 4 and 5 of order below consent terms dated 23.10.2013 read as under:-
"3. In pursuant to the settlement arrived between the parties to the suit, they have appeared before this Court personally along with their respective Ld. Advocates and presented the compromise deed (consent terms) before this Court. On receiving the same, this Court has inquired about the contents of the said compromise deed and the parties to the suit have not only admitted the contents of the said compromise deed, but also admitted their signature made thereunder and they have requested this Court to pass appropriate order.
4. Looking to the Consent Terms dated 23/10/2013, it appears that the plaintiffs and the defendants have irrevocably and Page 21 of 29 HC-NIC Page 21 of 29 Created On Sat Aug 12 10:55:32 IST 2017 C/CA/10580/2016 JUDGMENT unconditionally confirmed the manner of distribution of the estates/properties as described in the compromise terms of Late Shantadevi Gaekwad as recorded herein and shall not at any later date for any reason whatsoever raised or make any claim, objections, contentions whatsoever in this regard or in context of or in connection with the last will and Testament of Late Shantadevi Gaekwad dated 18th February, 1992 and in particular clause 1{b} thereof read with the 1st Codicil dated 31st March, 2002 and 2nd Codicil dated 1st April, 2002.
5. Having gone through the entire consent terms which has been executed between the plaintiffs and defendants and also considering the circumstances of this case, I am of the opinion that, there is no legal bar to take the said consent terms on record. Not only this, but also, to secure the ends of justice and to put an end of the disputes between the parties, it is necessary to place the said consent terms on record. Moreover, as the parties to the suit have resolved their dispute amicably out of the Court and as they have submitted that they have arrived at the settlement by their free and express consent, I do not find any reason to disbelieve the said consent terms.
Hence, I pass following order:
6.4 In exercise of powers to grant leave to prefer an appeal under Section 96 of the Code of Civil Page 22 of 29 HC-NIC Page 22 of 29 Created On Sat Aug 12 10:55:32 IST 2017 C/CA/10580/2016 JUDGMENT Procedure, 1908, the appellate Court is not to be unmindful of the material on record, viz. nature of judgment order /decree under challenge viz-a-viz violation of any legal right or injury to an aggrieved person, who is seeking leave of the appellate Court either on the ground of no knowledge of such judgment and decree or that such judgment and decree passed by the Court below is contrary to law. Unlike that of Section 383(3)(4) of the Criminal Procedure Code, no such provision is available in Code of Civil Procedure, may be for the reason about nature of two Codes, viz. criminal and civil procedure, in which in earlier one, i.e. criminal, offenders are dealt with by State authority as per procedure established and in the subsequent one, i.e. civil, it is about adjudication of civil rights of the parties. In Criminal Procedure Code, to redress grievance of complainant /victim, as the case may be, even if prosecution, viz. State authority has made all its endeavour to see that accused is punished, but for proper representation or lack of evidence or for any other good reason, prosecution has resulted into acquittal of the accused and to avoid injustice to aggrieved person, the above provisions are incorporated. 6.5 In the facts of this case, keeping in mind O-
23, R-3 of the Code of Civil Procedure and Section 23 of Page 23 of 29 HC-NIC Page 23 of 29 Created On Sat Aug 12 10:55:32 IST 2017 C/CA/10580/2016 JUDGMENT the Indian Contract Act, consent decree is passed, for which the Court concerned has expressed its satisfaction about legality, validity and bonafide of consent terms produced before it for passing the decree accordingly. In this kind of case, viz. challenge to consent decree by an aggrieved person who is deprived of existing right or from any benefits accruing by virtue of the act and no consent is given by such person and decree is passed, it may be looked into and considered by the appellate Court keeping in mind nature of alleged breach of such legal right or injury. So long as legal rights and other such permissible benefits of non-signatory to consent terms are protected and taken care by other signatories to consent terms endorsing the settlement with a view to put an end to a long drawn litigation in overall interest of all beneficiaries /legal heirs in a case like this and such consent decree is passed on the basis of consent terms duly signed by beneficiaries /authorized signatories on their behalf, unwillingness of other beneficiary to endorse such common consent terms or even common consensus by majority of beneficiary settling their dispute or grievance which may not be detrimental or subversive to legal rights or interest of rest of beneficiaries, in absence of any material on record about ill-intention or motive of signatories, cannot be ipso facto be a ground for grant of leave.
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6.6 That every principles of equity and good
consciences can be pressed into service to see that the settlement arrived at by almost all beneficiaries after due deliberations and rounds of negotiations, either on their own understanding of the case or even by intervention and advice of well-wishers, ordinarily to be accepted by the Court and accepting such settlement or consent terms upon satisfaction about its legality, validity and genuineness under the facts and circumstances including that of fulfillment of parameters of Section 23 of the Indian Contract Act and O-23, R-3 of the Code of Civil Procedure, need not be disturbed even by granting application seeking leave to file appeal, which would open a fresh round of litigation for no reason.
6.7 When an innocent and curious child throws a stone in calm water and may wonder at creation of ripples, is altogether a different scenario than an attempt deliberately made to muddle serenity of water intentionally and knowing fully well the consequences of making the water impure. The case of the applicant herein is like later one and though all her legal rights flowing from the Will or Codicils are taken care of by signatories of consent terms and any grievance qua Will or Codicils for which proper remedy can be undertaken by Page 25 of 29 HC-NIC Page 25 of 29 Created On Sat Aug 12 10:55:32 IST 2017 C/CA/10580/2016 JUDGMENT the applicant, but the same cannot be formed basis to stir hornet's nest or open Pandora's box, resulting into multiplicity of litigation for no reason. The grant of leave mechanically without proper understanding of facts would throw consenting parties into vertex of unending agony, uncertainty, resulting into frittering away benefits accruing out of settlement as they have to undertake lengthy legal proceedings, consuming time of the Court and other resources. The grant of leave is not a mere formality of procedural in nature and the Court considering such an application for leave, may certainly consider merit of the challenge to judgment and decree that may not be gone into delay and thereafter pass order in accordance with law.
6.8 In the facts of this case, it is beyond any reasonable perception to accept allegations of fraud or any kind of malafide on the part of all twenty nine signatories, beneficiaries and members of the family in absence of any material on record and that signing of consent terms and moving amendment on 22.10.2013 with regard to beneficiaries and members of the family and drawing consent terms, signing the same and passing order, by itself would not indicate any ill-will on the part of the signatories. A bare perusal of consent terms reveals that there are as many as 29 signatories and they Page 26 of 29 HC-NIC Page 26 of 29 Created On Sat Aug 12 10:55:32 IST 2017 C/CA/10580/2016 JUDGMENT were duly represented by concerned Advocates. When all such parties to the suit, original and subsequently arraigned by way of amendment, residing at different places, were present in the Court to end long drawn litigation and acceptance thereof by the Court, it cannot be said that the order was passed hurriedly or with non- application of mind. By way of abandon caution, when so many persons are representing their cause and compromise was reduced in writing without any delay, resulting into passing of an order by the Court, by itself will not create any ground for believing that such an attempt was made only with a view to depriving the applicant. No prudent Presiding Officer would have any reason to doubt such consent terms on the ground that all members of the family would conspire against one person to deprive her of any right. However, record reveals otherwise that her share is not disturbed.
6.9 Our findings as above about right of the applicant flowing from Clause-7 of Will dated 18.02.1992 and Codicils dated 31.03.2002 and 01.04.2002 are for the purpose of deciding this application for grant of leave and same would not be construed to have any opinion or view on our part in any pending proceedings or any such proceeding that may be initiated in future. The independent and individual right under the testament is Page 27 of 29 HC-NIC Page 27 of 29 Created On Sat Aug 12 10:55:32 IST 2017 C/CA/10580/2016 JUDGMENT to be agitated in accordance with law in separate proceedings and may not be subject matter at the stage of grant of leave or even in appeal in a suit already concluded based on consent terms which takes care of right or interest accrued out of testamentary declaration or testatrix like in the present case.
6.10 With regard to decisions cited by Shri Trivedi, learned Senior Counsel for the applicant, we find that for the reasons stated hereinabove, none of the decisions will help the applicant on merits. However, we are not inclined to reject this application on the ground of delay or laches as we find sufficient cause shown and explained in the application itself. However, it is made clear that there is no straitjacket formula for considering any application for delay in an application to grant leave and it remains in the domain and discretionary powers of the Court to consider delay in the facts and circumstances of each case. But, not filing any separate application for condonation of delay would not be fatal.
7. For the reasons stated hereinabove, the application is rejected. Notice is discharged. No order as to costs.
(ANANT S.DAVE, J.)
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(A.Y. KOGJE, J.)
SHITOLE
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