Gujarat High Court
Burjor Minochar Sorabkhan vs Respondent(S) on 19 August, 2015
Author: S.G.Shah
Bench: S.G.Shah
C/SCA/10714/2015 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 10714 of 2015
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BURJOR MINOCHAR SORABKHAN....Petitioner(s)
Versus
.....Respondent(s)
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Appearance:
MR MEHUL SHARAD SHAH, Advocate for the Petitioner(s) No.1
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CORAM: HONOURABLE MR.JUSTICE S.G.SHAH
Date : 19/08/2015
ORAL ORDER
1. Heard learned advocate Mr. Mehul S. Shah for the petitioner. There are none for the respondent since there is no respondent at all, so is the situation before the trial court being Court of Civil Judge (Senior Division) in Misc. Succession Application No.19 of 2002, order of which is under challenge in this petition.
2. The petitioner has challenged the order dated 17.2.2014 below Exh.19 in such Misc. Succession Application No.87 of 2004, so also the order of same date below Exhs.18 and 20 wherein it is simply endorsed that pursuant to order below Exh.19, such application does not survive and, thereby, application at Page 1 of 6 HC-NIC Page 1 of 6 Created On Sat Aug 22 00:48:15 IST 2015 C/SCA/10714/2015 ORDER Exhs.18 and 20 are disposed of. Whereas by impugned order below Exh.19, the trial court has rejected application seeking condonation of delay in filing an application for joining successor in title of the deceased - applicant. If we peruse the application, therein it is stated that the original applicant has expired on 25.11.2007 but since record of the main application was not traceable in the Office of the Court, the application is filed at belated stage and, therefore, it is requested to condone the delay. Whereas, by application at Exh.20, it is prayed to amend the causetitle by joining the name of present petitioner as successor of original applicant before the trial court, who expired on 25.11.2007, pursuant to Will executed by him joining present petitioner as its executor. At Exh.18, petitioner has prayed to set aside the abatement if at all such order was passed contending that he has to apply to join as a successorintitle of the original applicant but could not file application in time for want of original record.
3. If we peruse the impugned order, the only reason assigned by the trial court is to the effect that no documentary evidence is Page 2 of 6 HC-NIC Page 2 of 6 Created On Sat Aug 22 00:48:15 IST 2015 C/SCA/10714/2015 ORDER produced to prove the delay as sufficient cause and specific period for delay to be condoned is not disclosed in the application. The court has also taken note of pendency of probate application No.16 of 2008 and though there is no statement to that effect, it transpires that the court has relied upon the filing of such probate application in the year 2008 and, therefore, did not think it proper to condone the delay in joining heirs.
4. The main application being Misc. Succession Application No.87 of 2004 was initially filed by Burjor Minochar Sorabkhan. It is not disputed that there was one order of succession in his favour. It is also not disputed that nobody has come forward to object such succession. However, Misc. Succession Application No.87 of 2004 was filed for amendment in succession certificate issued pursuant to order in Succession Certificate Application No.19 of 2002 on or about 17.8.2004 considering the fact that certain details of several share certificates could not be disclosed in first application since it was not known to the applicant at the relevant time.
5. Therefore, practically, the fact remains that Page 3 of 6 HC-NIC Page 3 of 6 Created On Sat Aug 22 00:48:15 IST 2015 C/SCA/10714/2015 ORDER the present petitioner being Dinsha Kawasji Ghadiyali is claiming to join him as executor of Will of deceased Burjor Minochar Sorabkhan for which he has already filed an application for issuance of probate in the year 2008. However, when record of Misc. Succession Application No.87 of 2004 was available, he has pleaded to join as such in this application also.
6. Therefore, practically, the right to join as an executor arises only when probate is issued in favour of Dinsha Kawasji Ghadiyali and in view of that position, infact, there is no question of any delay in joining him as a successorintitle being executor of the Will. Therefore, when impugned order is not a speaking order and without considering the overall situation, the same needs to be quashed and set aside.
7. At the most, trial Court can club all the applications together i.e. probate application no.16 of 2008 and Misc. Succession Application No.87 of 2004 since same issue is involved in both the petitions i.e. who is successor of original applicant Burjor Minochar Sorabkhan. At the same time, it cannot be ignored that when succession Page 4 of 6 HC-NIC Page 4 of 6 Created On Sat Aug 22 00:48:15 IST 2015 C/SCA/10714/2015 ORDER certificate issued in favour of Burjor Minochar Sorabkhan is also required to be executed by Dinsha Kawasji Ghadiyali as his executor of Will, he is certainly entitled to take care of the properties which are left from the previous proceedings.
8. At the most, trial court may order to issue public notice in both the matters and shall decide the same at the earliest. The trial court may also avoid to decide applications at Exhs.19 and 20 till probate application no.6 of 2008 is decided. However, in that case, the trial court shall see that properties under consideration may not get lost in any manner whatsoever. Thereby, trial court has to safeguard the properties under reference by appropriate orders.
9. In view of above facts and circumstances, the impugned order is certainly improper and results into injustice to the petitioner and cannot sustain and, therefore, needs to be quashed and set aside. Thereby, impugned orders referred hereinabove are hereby quashed and set aside. To that extent, the petition is allowed. However, trial court shall decide such applications afresh and shall pass appropriate orders in accordance Page 5 of 6 HC-NIC Page 5 of 6 Created On Sat Aug 22 00:48:15 IST 2015 C/SCA/10714/2015 ORDER with law considering the observations made in this order.
10. In view of above, petition is allowed in above terms and disposed of accordingly.
(S.G.SHAH, J.) VATSAL Page 6 of 6 HC-NIC Page 6 of 6 Created On Sat Aug 22 00:48:15 IST 2015