Bombay High Court
Mukesh Ramanlal Gokal vs Ashok Jagjivan Gokal on 11 October, 2013
Author: R.D. Dhanuka
Bench: R.D.Dhanuka
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY.
TESTAMENTARY & INTESTATE JURISDICTION
MISCELLANEOUS PETITION NO. 54 OF 2012
IN
PETITION NO. 733 OF 2007
1. Mukesh Ramanlal Gokal )
Indian Inhabitant of Mumbai, )
aged 58, residing at 72, Rambha,)
66-C, Napean Sea Road, )
Mumbai - 400 006 ig )
2. Bharat Ramanlal Gokal, )
Indian Inhabitant of Mumbai, )
aged 57 residing at 6, )
CCI Chambers, Dinsha Vachha )
Road, Mumbai - 400 020 ) ...Petitioners
Versus
Ashok Jagjivan Gokal )
of Mumbai, Indian Inhabitant, )
residing at, Ivorine Building, )
6th Floor, M.K.Road, Mumbai )
400 020 ) .. Respondent
Mr. Aspi Chinoy, Sr. Advocate along with Mr. Zal Andhyarunjina along with
Mr. A. Dasgupta i/by M/s. Jhangiani Narulla & Associates for the petitioners.
Mr. V.R. Dhond, Sr. Advocate along with Mr. Akshay Patil along with Mr.
Ashish Kamat i/by D.P. Dighe for respondent.
CORAM : R.D.DHANUKA J.
RESERVED ON : AUGUST 21, 2013
PRONOUNCED ON : OCTOBER 11,2013
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ORAL JUDGMENT :
By this petition, petitioner seeks setting aside of the orders dated 4th August, 2011 and 6th August, 2011 passed by the Prothonotary and Senior Master permitting the respondent to amend probate granted by this court on 13th December, 2007 and seeks dismissal of the application for amendment made by the respondent dated 4th August, 2011. Some of the relevant facts for the purpose of deciding this petition are as under :
2.
Petitioners along with Mrs. Meena Rajani, Shailesh Gokal and Mrs. Sushila Gokal are the legal heirs of Mr. Ramanlal Gokal as per Hindu Succession Act, 1956 who expired on 22 nd March, 2007 (hereinafter referred to as the said deceased). The deceased had left will dated 25 th January, 2005 and codicil dated 28th June, 2006. Respondent was one of the executors named in the said Will and testament of the deceased on 25 th January, 2005.
On demise of the said deceased, respondent being one of the executors, of the Will filed Probate Petition (733 of 2007) for grant of probate of the Will and Codicil in this court. The respondent filed schedule of assets along with the said testamentary petition. One of the properties of the deceased which was described at Item No. 2 of the said schedule of assets filed along with the testamentary petition is extracted as under :
Merchantile 2nd Floor = 2200 sq. ft. 6th 50.00% Current a/c. No. 0001201401682 Corporation Floor = 2000 sq. ft. Mercantile Bank of India Main Branch, House, Reay Road, Mumbai. Mumbai 400 023
3. The respondent thereafter amended the said schedule of assets. As ::: Downloaded on - 27/11/2013 20:25:47 ::: .. 3 .. MPT-54.2012.sxw far as item No. 2 in the original schedule of assets which was in respect of the Mercantile House is concerned, the same was amended as under :
"Owner of Mercantile House situated at Magazine Street, Basement Ground plus six floors, Reay Road, Mumbai with its attendant assets and its right, title and interest in Mercantile House for the valuation of Rs.40,32,08,000/-." The above property fetches no rent.
4. The petitioners filed consent affidavits and did not raise any objection to grant of probate. The other heirs of the deceased also filed similar consent affidavits which were filed along with probate petition. As there was no opposition to grant of probate from any of the legal heirs of the deceased, by an order dated 13 th December, 2007, this court granted probate of the said last will and testament along with codicil in favour of the executor. It is the case of the petitioners that by the Codicil dated 28 th June, 2006, the said deceased had bequeathed property of Mercantile House in favour of the petitioners. It is the case of the petitioners that since respondent and another executor had misapplied the property of the deceased and did not comply with the directions of the testator as per the said will and codicil properly, petitioners filed complaint dated 22 nd February, 2011 and 8th April, 2011 to the Commissioner of Police against respondent. On 4 th August, 2011 respondent submitted affidavit in this court for the purpose of amendment in the probate. In the said affidavit dated 4 th August, 2011, respondents placed reliance on paragraph 11 of the Will dated 26 th January, 2005 which reads as under :
"11 (a) : My share and entitlement in the firm M/s. Mercantile Corporation".::: Downloaded on - 27/11/2013 20:25:47 :::
.. 4 .. MPT-54.2012.sxw The respondent sought amendment to item No.2 of the schedule as under :
"The deceased's share and entitlement in the Mercantile Corporation situated at Magazine Street, Reay Road, Mumbai."
5. The Additional Prothonotary & Senior Master raised four objections on such affidavit/application for amendment filed by the respondent on 4th August, 2011 which are as under :
"(1) Copy of the Affidavit to be furnished to the
Superintendent of stamps and Receipts to be produced.
(2) Consent Affidavit of all legal heirs to be filed.
(3) Affidavit of other legal executors to be filed.
Original Grant submitted for amendments. For orders."
(4)6. On 4th August, 2011, Additional Prothonotary and Senior Master considered the request of the respondent to dispense with consent affidavit and affidavit of other executors before granting such amendment. On 4 th August, 2011, amendment is granted by the Prothonotary not only to amend the probate but also to amend the petition which was already disposed of. On 6th August, 2011, there was another order passed granting permission for amendment of original probate which reads as under :
"As per order dated 04/08/2011, petitioner has amended the schedule and re-declared the Petition on 5 th August, 2011 and ::: Downloaded on - 27/11/2013 20:25:47 ::: .. 5 .. MPT-54.2012.sxw then the following requisitions complied with :
(1) Copy of the affidavit furnished to the
Superintendent of Stamps and Receipts produced on
04/08/2011.
(2) Requisition Nos. 2 and 3 dispensed with (Pl. see remark on docket) Original Grant submitted for amendment.
In view of the above facts, Original Grant may be amended accordingly as prayed and to be placed before the Prothotnaroy & Senior Master.
A: request may be granted......
Sd/- 6/8/11 Sd/- 6/8/11"
7. It is the case of the petitioners that the petitioners came to know about these orders on 9th August, 2011. Petitioners applied for copies of the relevant orders and documents. On 27th April, 2012, petitioners filed this petition and have applied for setting aside the order dated 4 th August, 2011 and 6th August,2011 passed by the additional Prothonotary & Senior Master, permitting amendment to the probate petition as well as schedule.
Petitioner also filed separate petition bearing No. 66 of 2013 for removal of the respondent and his brother Mr. Jagjivan Gokal as executors. Misc. Petition No. 66 of 2013 was heard simultaneously along with this petition and is being disposed of by a separate order.
8. Mr. Chinoy, learned senior counsel appearing on behalf of the petitioners invited my attention to paragraphs 11 and 12 of the affidavit in reply filed by the respondent on 22/8/2012. It is stated in the said affidavit that by letter dated 16th June, 2011, respondent promptly replied to the police ::: Downloaded on - 27/11/2013 20:25:47 ::: .. 6 .. MPT-54.2012.sxw and informed that he had inadvertently misdescribed the property in the schedule to the probate petition. One of the partners of M/s. Mercantile Corporation namely Mr. Jaloo Nogi Karanjawalla, was surviving and had therefore, become the sole proprietor of the firm. It is stated that realizing that the erroneous mis-description in the Schedule to the probate was causing unnecessary complications and that the petitioners were wrongly claiming ownership of what was not even bequeathed to them under the Will and/or Codicil, the respondent filed affidavit dated 4th August, 2011 and approached the Prothonotary to correct the inadvertent inaccuracy in the schedule to the probate by way of an amendment. In view of the order passed by the Prothonotary & Senior Master on 6 th August, 2011 allowing amendment, schedule is in consonance with the Will and Codicil which reads as under :
"The deceased's share and entitlement in the Mercantile Corporation..."
9. Mr. Chinoy submits that the amendment sought by the respondent was obviously with a view to obviate any claim and police action against him by the petitioner pursuant to the police complaints made by the petitioners. He submitted that the amendment as sought was not a case of inadvertence but affects the rights of the beneficiaries.
He submits that with a view to defeat the rights of the petitioners in the property, such amendment was sought exparte. Mr. Chinoy placed reliance on Rule 304 of the High Court (Original Side) Rules and also section 152 of the Code of Civil Procedure which are extracted as under :
::: Downloaded on - 27/11/2013 20:25:47 :::.. 7 .. MPT-54.2012.sxw Rule 304 of the High Court (Original Side) reads thus :
"R. 304. Errors, how rectified after decree or order is sealed : After a decree or order has been sealed, any application to rectify an inaccuracy or clerical or arithmetical error shall be made to the Prothonotary and Senior Master and he may, in his discretion, after notice to the parties when he deems it necessary, rectify such inaccuracy or error. The Prothonotary and Senior Master may, if he thinks fit, place the matter before the Judge who passed the decree or order or in the event of his absence on leave or retirement before any other Judge and the Judge may in his discretion, after notice to the parties, when he deems it necessary, amend the decree or order so as to bring it in conformity with the judgment or rectify such inaccuracy or error.
152. Amendment of judgments, decrees or orders : Clerical or arithmetical mistakes in judgments, decrees or orders or errors arising therein from any accidental slip or omission may at any time be corrected by the Court either of its own motion or on the application of any of the parties."
10. Mr. Chinoy, learned senior counsel submits that the application before Prothonotary & Senior Master for rectification of the order can be made only to rectify an inaccuracy or clerical or arithmetical error. The Prothonotary and Senior Master has no power to rectify and/or amend the substantive situation and ought to have placed the matter before the learned Judge to pass an order for amendment after notice to parties so as to bring it in conformity with the judgment or rectify the error. It is submitted that ::: Downloaded on - 27/11/2013 20:25:47 ::: .. 8 .. MPT-54.2012.sxw there is no provision in the Original Side Rules for permitting amendment in the probate petition which is already disposed of. Only probate can be amended to the limited extent of rectifying an accuracy or clerical or arithmetical error. Learned senior counsel submits that on perusal of the affidavit dated 4th August, 2011, it is clear that it was not even pleaded by the respondent that there was any clerical or arithmetical error in the probate petition or in the judgment. Learned senior counsel submits that the order passed by the Prothonotary allowing amendment in the disposed of probate petition is beyond his powers and jurisdiction.
11. Mr. Chinoy, learned senior counsel submits that the probate petition was granted by this court in view of the petitioners and other legal heirs having filed affidavit giving their no objection to the grant of probate when it was filed. The Prothonotary and Senior Master thus could not have dispensed with the requirement of filing consent affidavits or issuing notice to the legal heirs and in any event not without recording any reasons as to why issuance of notice was not necessary. The Petitioners and other legal heirs were deprived of the opportunity to raise objection to the amendment sought by the respondent. It is submitted that the exercise of such powers by the Prothonotary of dispensing with filing of consent affidavit and without issuance of notice has drastic and serious consequences and deserves to be set aside.
12. Learned senior counsel placed reliance on section 3 of the Limitation Act in support of his submission that the application for rectification of the alleged errors in the probate itself was barred by law of limitation. According to the learned senior counsel, Article 137 which ::: Downloaded on - 27/11/2013 20:25:47 ::: .. 9 .. MPT-54.2012.sxw provides for period of limitation of three years, from the date on which right to apply accrued to the applicant, would apply to such application for amendment. It is submitted that the probate was granted on 13 th December, 2007 whereas application for amendment was made on 4 th August, 2011 which was beyond the period of three years and thus the said application was beyond the prescribed time and was required to be dismissed. It is submitted that the learned Additional Prothonotary and Senior Master was bound to make enquiry as to whether such application for amendment as filed was within the period of limitation which enquiry he failed to conduct.
13. Mr. Chinoy, learned senior counsel submits that such application for amendment as made by the respondent did not fall under Article 304. It is submitted that under section 261 of the Indian Succession Act, the court has limited power of rectification of the errors in the names and description or in setting forth the time and place of the death of the deceased for that purpose in a limited grant. It is submitted that none of errors can be corrected even by the courts which would directly affect the rights of the parties without hearing parties. It is submitted that if respondent would have made appropriate application for amendment before the court after issuing notice to the petitioners and other legal heirs, such parties could have demonstrated before the court that there were no errors in the probate granted by this court and no amendment could be permitted by the court under section 261 of the Indian Succession Act. It is submitted that since the learned additional Prothonotary and Senior Master has permitted the amendment which has effect of changing the nature of the grant itself, such power does not fall under Rule 304 of the High Court (Original Side) Rules. Section 261 of the Indian Succession Act reads thus :
::: Downloaded on - 27/11/2013 20:25:47 :::.. 10 .. MPT-54.2012.sxw "261. What errors may be rectified by Court.- Errors in names and descriptions, or in setting forth the time and place of the deceased's death or the purpose in a limited grant, may be rectified by the Court and the grant of probate or letters of administration may be altered and amended accordingly."
14. Mr. Dhond, learned senior counsel appearing on behalf of the respondent on the other hand submits that the mind of the testator was clear that he was not entitled to exclusive ownership of the entire building but he had certain share in the firm namely M/s. Mercantile Corporation. It is submitted that the amendment carried out therein in no any manner decides the share of the legatees. By amendment the probate petition and grant were brought in consonance with clause 11 of Will. The respondent executor did not commit anything wrong by seeking such amendment. There are no mala fides on the part of the executor in applying for the correction of the obvious error. It is submitted that no prejudice is caused to the petitioners by such amendment. Mr. Dhond, learned senior counsel would submit that when the first amendment which was carried out by the executor by which the said deceased was shown to have exclusive ownership rights in respect of the building Marcantile House itself was incorrect and carried out inadvertently and was not in consonance with the directions issued by the testator under clause 11 of the Will read with Codicil. The petitioners thus could not have raised any objection to the rectification of such inadvertent error. Mr. Dhond submits that the description mentioned in the schedule of the assets in the probate petition was inaccurate or showed clerical error which can be corrected by the Prothonotary and Senior ::: Downloaded on - 27/11/2013 20:25:47 ::: .. 11 .. MPT-54.2012.sxw Master by exercise of his powers under section 304. The order passed by the Prothonotary is not beyond his powers. It was within the discretionary powers of the Prothonotary and Senior Master to dispense with the consent of the petitioners and other legal heirs which discretion was properly exercised by him. Mr. Dhond submits that it was within the powers of the Prothontary and Senior Master to decide whether there was any inaccuracy in the probate petition and grant and whether notice should have been given to the beneficiaries or not. Mr. Dhond submits that the powers of the court under section 152 of the Code of Civil Procedure to correct clerical or arithmetical mistakes in the judgments, decrees or orders or errors arising therein are narrow in comparison to the wide powers given to the Prothonotary and Senior Master under Rule 304 of the High Court (Original Side) Rules which includes not only to rectify clerical or arithmetical errors but also inaccuracy. It is submitted that the expression inaccuracy used in Rule 304 is in contradiction with the clerical or arithmetical error. Learned senior counsel placed reliance on the judgment of the Supreme Court in the case of Peethani Suryanarayan Vs. Kishore 2009 (11) SCC 308 and particularly paragraph 4, 9, 10, 14 and 18 in support of his submission that if the facts are not disputed and merely identity of the description of the rights of the testator is changed, petitioners would not be affected and thus following of principles of natural justice in this case would be an empty formality. Para 4, 9, 10, 14 and 18 of the said judgment in the case of Pithani (supra) read thus :
"4. Respondent No. 1 thereafter filed an application for amendment of a mistake, said to be a clerical one, in the decree, seeking deletion of the Town Survey No. 462 and substituting the same by the Town Survey No. 463. The said application was allowed by an order dated 25.08.2003.
9. The factual matrix involved in the matter, as noticed hereinbefore, is not in dispute. It is also not in dispute that in the plaint suit land was described as Revisional ::: Downloaded on - 27/11/2013 20:25:47 ::: .. 12 .. MPT-54.2012.sxw Survey No. 165. The village became a part of the municipality, by reason whereof a new Town Survey was assigned to the suit land being Town Survey No. 463. However, in the plaint and consequently in the preliminary decree as also in the final decree, Town Survey No. 462 was mistakenly mentioned, which was evidently a typographical mistake.
10. The power of the court to allow such an application for amendment of plaint is neither in doubt nor in dispute. Such a wide power on the part of the court is circumscribed by two factors, viz., (i) the application must be bonafide; (ii) the same should not cause injustice to the other side and (iii) it should not affect the right already accrued to the defendants.
14. On a query made by us, it was stated at the bar that the deeds of sale dated 29.06.1992 and 7.08.1992, in terms whereof the appellants purchased share in the joint family property, consisted of the suit lands including the aforementioned Town Survey No. 463. It is not the case of any of the party to the suit that the Town Survey No. 462 was the joint family property or could have otherwise been the subject matter of the said suit for partition.
18. There cannot be any doubt whatsoever that the principles of natural justice are required to be complied with. But, in a case of this nature, the same would be an empty formality. The facts are not disputed. The identity of the suit land has not been changed. It is not a case where, as submitted by Mr. Mahabir Singh, one land is being substituted by another. The fact that the town survey No. 463 is a joint family property is not in dispute. As indicated hereinbefore, it is the same plot which was the subject matter of sale and only in respect thereof the appellants herein could claim partition. Appellants have also furthermore not been able to show as to how and in what manner they have been prejudiced."
Mr. Chinoy the learned counsel for the petitioner relied upon paragraphs 9, 10 and 14 of the said judgment.
15. Mr. Dhond submits that there was no infirmity or mala fide action on the part of the respondent in seeking amendment. It is submitted that power to amend grant includes power to amend pleadings. Mr. Dhond placed reliance on the judgment of the Supreme Court in the case of Niyamat ::: Downloaded on - 27/11/2013 20:25:47 ::: .. 13 .. MPT-54.2012.sxw Ali Vs. Sonar 2007 (13) SCC 421 and particularly paragraphs 3, 4, 6, 9, 12,18, 19, 21 in support of the submission that description of the property in the schedule of property can be rectified by the Prothonotary under Rule 304 . Said paragraphs read thus :
"3. Plaintiff claimed title over the suit property on the basis of purchases made under two registered deeds of conveyances dated 27.1.1968 comprising of 12 shares of Plot No. 340, 341, 342 and 343 of Mouza Tegharia admeasuring 1.39 acres from defendant No. 1 and his three sisters. However, in the Schedule of Property, described in the schedule to the plaint, it was stated:
All that acres of land now developed for Housing Township appertaining to Rs. Dag No. under Khatian Nos. of Mouza Tegharia, J.L. No. 6, lying and situate within Sonargaon Park, P.S. Sonarpore, District South 24 Parganas (South).
4. A decree was passed wherein again the same Schedule of Property was described as the property involved in the suit. It was directed:
The plaintiff do get a decree for declaration of title and permanent injunction against the defendants in respect of the suit property.
It is declared that the plaintiff has right, title and interest in the suit property.
Defendants are restrained by an order of permanent injunction from disturbing or interfering with the peaceful possession of the plaintiff over the suit property in any way or in any manner whatsoever. The other prayer of the plaintiff is refused in view of my discussion made in the body of judgment.
6. An application for amendment of the plaint as also of the decree containing the Schedule describing the said property was, however, filed on 27.6.2000, inter alia, stating:
That both parties went on trial and adduced both oral and documentary evidence in respect of the suit property and there was never any dispute as to the identity of the suit of the suit property.
That at the time of drafting of the plaint through inadvertence the total area of the Land, R.S. Plot Number and Khatian Number have not been mentioned in the Schedule of the Plaint through inadvertence.
That it is an accidental error.
That it is a clear case of misdescription of the suit property and no prejudice will be caused to the defendant if the plaint and the decree are amended at this stage.
9. It was urged that the application for amendment, if allowed, would give rise to substitution of one property in place of another, particularly, having regard to the change in the J.L. number.
12. Mr. Jaideep Gupta, learned senior counsel appearing on behalf of the ::: Downloaded on - 27/11/2013 20:25:47 ::: .. 14 .. MPT-54.2012.sxw respondents, on the other hand, submitted that the court's power to amend a decree is not only confined to a clerical or arithmetical error but also the pleadings of the parties, if a mistake had occurred in the pleadings and the same is continued. Reliance in this behalf has been placed on Bela Debi v. Bon Behary Roy and Ors. MANU/WB/0140/1951 : AIR1952Cal86 . It was furthermore urged that the suit being for enforcing a sale deed, the Dag and Khatian number stated in the plaint was determinative as regards identification of the property. J.L. number, it was urged, has nothing to do with the identification of the property or the village in which it is situated. It was pointed out that the plots in question had also been ordered to be mutated in favour of the respondent. Even an Advocate-Commissioner had also been appointed who has also submitted a report.
18. Section 152 of the Code of Civil Procedure empowers the Court to correct its own error in a judgment, decree or order from any accidental slip or omission. The principle behind the said provision is actus curiae nemesis gravabit, i.e., nobody shall be prejudiced by an act of court.
19. Code of Civil Procedure recognises the inherent power of the court. It is not only confined to the amendment of the judgment or decree as envisaged under Section 152 of the code but also inherent power in general. The courts also have duty to see that the records are true and present the correct state of affair. There cannot, however, be any doubt whatsoever that the court cannot exercise the said jurisdiction so as to review its judgment. It cannot also exercise its jurisdiction when no mistake or slip occurred in the decree or order. This provision, in our opinion, should, however, not be construed in a pedantic manner. A decree may, therefore, be corrected by the Court both in exercise of its power under Section 152 as also under Section 151 of the Code of Civil Procedure. Such a power of the court is well recognized.
21. The question came up for consideration before the Calcutta High Court in Bela Debi (supra), wherein it was held It will thus be seen that there is a diversity of judicial opinion as to how far a Court can go in rectifying its own decree. Where, of course, the amendment is in order to carry out its own meaning, there is no doubt about the power of the Court in effecting such corrections (see In re St. Nazaire Co. ; Preston Banking Go. v. Allsop . Nor can it be disputed that it has power to rectify mistakes which are of a ministerial kind (see Mellor v. Swire . But the difficulty arises when it is found that the mistake is not one of the Court but is a mistake of the parties themselves. Mistakes in the description of properties in deeds, is illustrative of this kind of mistake. It is the parties who have made the mistake, and the mistake is continued in the pleadings and the decree. According to one view, Section 152 is confined to acts of the Court and, therefore, mistakes of parties made in the pleadings or deeds and documents evidencing the transaction cannot be corrected (Ramchander Sarup v. Mazhar Hussain . The second view is that under this section and Section 151, plaint, judgment and decree all can be amended (see Shiam Lal v. Mt. Moona Kuar ; Ram Chandra v. Jamna Prosad . A third view is that it is permissible under such circumstances to amend the decree and it is unnecessary to amend the plaint (Badri Pande v. Chhangur Pandey/ ; Jamini Bala Biswas v. Bank of Chettinad Ltd.
Lastly, there is the view, which I have already noted, which goes to the extent of holding that the Court cannot only rectify pleadings and decrees but rectify documents evidencing the transactions themselves, upon which the suit was founded.
I shall now state, what in my opinion, is the true meaning of Section 152, Civil P. C. I am not in favour of giving a narrow construction to Section 152. I do not agree that Section 152 must necessarily refer to an 'accidental slip or omission' of the Court itself, or its ministerial officers. It does not say so in the section itself, and should not be interpreted as such. Where it is the Court's own accidental slip or omission, or that of its ministerial officers, there can be no ::: Downloaded on - 27/11/2013 20:25:47 ::: .. 15 .. MPT-54.2012.sxw doubt that the section applies. But it gives power to rectify any accidental slip or omission in a judgment, decree or order, and might include an accidental slip or omission traceable to the conduct of the parties themselves. But it must be an 'accidental slip or omission'. A mistake made by the parties in a, deed upon which the suit is founded, and repeated in the judgment, decree or order, may or may not be an 'accidental slip or omission.' Where it is clear, that such is the case, then I do not see why the Court cannot set it right. In doing so, what is going to be rectified is, the judgment decree or order, and it is not at all necessary to rectify either the pleadings or the deed. In making such corrections, however, the Court can only proceed on the footing that there could be no reasonable doubt as to what it really intended to say in its judgment decree or order. It cannot go into any disputed questions. If there is a particular description of a property in a deed, and a suit has been instituted on the strength of that description, and a decree passed, it is not permissible in proceedings under Section 152 to go into disputed questions as to what property was intended to be dealt with, by the parties in the deed. I agree with Gentle C. J. that such a question can only be dealt with, in appropriate proceedings under the Specific Relief Act (see T. M. Ramakrishnan Chettiar v. G. Ramakrishnan Chettiar . But it may so happen that the mistake is so palpable that nobody can possibly have any doubt as to what the parties meant or what the Court meant when it passed its judgment, decree or order. For example, suppose in a conveyance a property is described as '24 Chowringhee Road, Bhawanipur'. It would be clear to everybody what property was meant, and it cannot be seriously doubted that in abating that the property was in 'Bhawanipur', the parties had committed an 'accidental slip or omission'. In such a case, I would not go to the extent of holding that the Court has no power to correct the judgment, decree or order which has repeated the. mistake. In doing so, the Court need not correct the pleadings or the document but its own decision. In my opinion, it is not necessary in such a case to amend the pleadings or to rectify the deed, therefore, no question arises as to whether the Court has power to do so. It is, however, quite clear that such cases must be of rare occurrence, and the scope thereof is severely limited. The power cannot be extended to the resolving of controvertial points, and a decision as to what the parties intended or did not intent to do. Apart from this exceptional case, I hold that the Court cannot correct errors anterior to the proceedings before it. For such a purpose, the proper proceeding is by way of a suit under Section 31, Specific Relief Act. To this extent, I agree respectfully with the view enunciated by Gentle C. J. in T.M. Ramakrishnan Chettiar v. G. Radhakrishnan Chettiar and the view expressed by Young J. in Shujaatmand Khan v. Gobind Behari . Applying these principles to the facts of this case, I think that the rectification asked for is impossible. If there has been a mistake in the original agreement it is a mistake which is fundamental, and it is impossible without going into evidence, to decide as to what the parties meant. There are facts in favour of the contention put forward by either party and I cannot describe it as an error (if there is at all any error) as can be called "an accidental slip or omission" as contemplated in Section 152. In any event, such slips or omissions cannot be rectified in proceedings under Section 152 or even under Section 151 of the Code."
16. Mr.Dhond, learned senior counsel submits that the learned Additional Prothonotary and Senior Master has rightly corrected the inaccuracy in the schedule of assets. At most, it would be an error within jurisdiction of the learned Additional Prothonotary and Senior Master which cannot be interfered with by this court which error if any has been committed while exercising discretionary powers exercised by the ::: Downloaded on - 27/11/2013 20:25:47 ::: .. 16 .. MPT-54.2012.sxw Prothonotary & Senior Master. Mr. Dhond, submits that when first amendment was carried out in the schedule, entire building was claimed to be ownership property of the deceased including second floor which was not even claimed by the petitioners, which demonstrates inaccuracy in the description of the suit property on the face of it, it required amendment. If such amendment is granted, no prejudice would be caused.
17. In rejoinder, Mr. Chinoy, learned senior counsel for the petitioners submits that in the original petition filed by the respondent, respondent who was one of the executors had disclosed 50% share of the deceased in respect of the second and sixth floor of the said building Mercantile House in the schedule. It is submitted that the respondent was aware that the said deceased became entitled to the said property Mercantile House being sole surviving partner at the time of his death and had rightly carried out the first amendment. By the second amendment, the respondent deliberately deleted the Mercantile House from the schedule after four years of the grant of probate and after filing of the police complaint by the petitioners against the respondent with a view to overcome criminal complaints. It is submitted that the first amendment carried out by the respondent was conscious perception of what the estate was. It is submitted that on perusal of para 11 and 12 of the affidavit in reply filed by the respondent, it is clear that by the amendment sought by the respondent and allowed by the Prothonotary and Senior Master was not for the correction of any typographical mistake, but has affected the rights of the parties. Learned senior counsel distinguished the judgment of the Supreme Court in the case of Niyamat Ali Maula by placing reliance on paragraphs 21 in which the Supreme Court has adverted to the judgment of Allahabad High Court in the case of Badri Pande Vs. ::: Downloaded on - 27/11/2013 20:25:47 ::: .. 17 .. MPT-54.2012.sxw Changur Pande, AIR 1933 All 102 and in the case of Jamini Bala Biswas Vs. Bank of Chettinad Ltd. AIR 1935 Rang 522. Mr. Chinoy, learned senior counsel submits that under section 152 of the Code of Civil Procedure, Court can correct accidental slip or omission. Mr. Chinoy submits that there was no mistake and/or omission or accidental slip when the first amendment was carried out by the respondent to the schedule of assets. Mr. Chinoy distinguished the judgment of the Supreme Court in the case of Peethani Suryanarayan (supra) by placing reliance on paragraph 9 of the said judgment to demonstrate that in the matter before the Supreme Court, it was the case of typographical mistake which was evident and such mistake was corrected by the court under section 152 of the Code of Civil procedure which is not the case in hand.
18. It is not in dispute that the respondent was the only petitioner who was one of the executor who had filed petition inter alia for probate in respect of the Will and codicil executed by the said deceased. In the schedule to testamentary petition, initially entitlement of the deceased in the Mercantile Corporation was disclosed as 50% share of second floor admeausring 2200 sq. ft. and of 6 th floor admeasuring 2000 sq. ft. in the building known as Mercantile House. The said schedule was subsequently amended by the respondent and it was stated that the said deceased was owner of Mercantile House and its right title and interest in the Mercantile House was valued at Rs.40,32,08,000/-. Based on this last schedule on record of this court in the said probate petition, this court issued grant in favour of the respondent executor. It is not in dispute that the probate was granted by an order dated 13th December, 2007. It is the case of the respondent that he along with other executors has implemented the ::: Downloaded on - 27/11/2013 20:25:47 ::: .. 18 .. MPT-54.2012.sxw directions issued by the Will and codicil which was probated by this court except in case of residuary legacy. It is the case of the respondent that the legacies under the said will and codicil including the share of the said deceased in Mercantile House have already been handed over to the beneficiaries. It is the case of the petitioners on the other hand that since the respondent did not comply with the directions of the testator as per will and Codicil properly and did not do his duties prescribed under the provisions of the Indian Succession Act, 1925, petitioners have filed a complaint on 22nd February, 2011 and 8th April, 2011 against the respondent to the Commissioner of Police, Mumbai. On perusal of the affidavit in reply filed by the respondent in this proceedings and in particular Paragraph 11 and 12 in the said affidavit dated 22 nd August, 2012, it is revealed that it is the case of the respondent that when petitioners filed complaint against respondent before the Commissioner of Police by letter dated 16 th June, 2011 respondent replied to the police that he had inadvertently mis- described the property in the schedule to the probate petition. It is the case of the respondent that as one of the partners of M/s. Mercantile corporation namely Mr. Jaloo Nogi Karanjawalla was surviving and had therefore become the sole proprietor of the firm on realising that the erroneous mis- description in the schedule to the probate was causing unnecessary complications and that the petitioners were wrongly claiming ownership of what was not even bequeathed to them under the Will and/or Codicil, respondent filed affidavit/application dated 4 th August, 2011 and applied before the Prothonotary to correct the inadvertent inaccuracy in the schedule to the probate by way of amendment.
19. On perusal of the application filed by the respondent before the ::: Downloaded on - 27/11/2013 20:25:47 ::: .. 19 .. MPT-54.2012.sxw Additional Prothonotary and Senior Master, it is clear that the only reason given in Paragraph 2 of the said application for seeking amendment to the probate as well as probate petition was that inadvertently respondent had described the deceased as owner of Mercantile House instead of what was described in Paragraph 11 of the Will under Item No. 2 of the Schedule. From the bare reading of the said affidavit/application, it is clear that it is not the case of the respondent that in the said probate granted, there was any inaccuracy or in the schedule to the probate petition or that the amendment was necessitated in view of the knowledge now derived by the respondent that one of the partner of M/s. Mercantile Corporation Mr. Jaloo Karanjawalla was surviving and had became sole proprietor of the firm.
20. There is no reference to the police complaint filed by the petitioners against the respondent in the said application nor there is any reference to the reply given by the respondent, if any to the Commissioner of Police in response to the complaint filed by the petitioners. It is not in dispute that for more than three years, respondent did not seek any amendment to the probate or to the schedule of the probate petition. The disputes between the petitioners who were beneficiaries and executors had stared in respect of the distribution of the estate of the said deceased in accordance with the schedule of assets duly amended at the instance of the respondent himself which described the property of the deceased on the premise that the said deceased was owner of the Mercantile House and its right title and interest in the Mercantile House was valued at Rs.40.23 Crores.
21. In my view, once the probate was granted by this court on the basis of the said schedule which was already once amended by the ::: Downloaded on - 27/11/2013 20:25:47 ::: .. 20 .. MPT-54.2012.sxw respondent and was being implemented, no further amendment either in the probate petition or in the probate itself could be granted even by this court without hearing all the beneficiaries/legatees/legal heirs under the said Will/Codicil.
22. In my view, considering the existing dispute between the parties and in view of police complaint already having been filed by the petitioners against the respondent executor, alleging non compliance in not distributing the properties of the deceased amongst the beneficiaries, respondent ought to have brought this facts on record before the Prothonotary & Senior Master in his application for seeking amendment of the probate as well as schedule to the petition. The respondent was also bound to serve such application on the beneficiaries/legatees or ought to have submitted consent affidavit of all the beneficiaries, legal heirs and other executors. If any such application would have been served upon the petitioners, it could have been opposed by the petitioners. Petitioners have not admitted that Mrs. Jaloo Karanjawalla has become sole proprietor of M/s. Mercantile Corporation or has become exclusive owner of Mercantile House. On the basis of such alleged knowledge derived by this respondent, he could not have applied for amendment exparte. In my view, Additional Prothonotary & Senior master also ought to have scrutinized such application and ought not to have granted amendment without notice to all the beneficiaries and legal heirs and ought not to have dispensed with the consent affidavit of the legatees/beneficiaries before allowing such application for amendment and that also after lapse of more than three years from the date of the issuance of grant by this court. On perusal of the order passed by the Additional Prothonotary and Senior Master, it is clear that no reasons are recorded as to why requirement of ::: Downloaded on - 27/11/2013 20:25:47 ::: .. 21 .. MPT-54.2012.sxw notice and filing of consent affidavit from the legatees/beneficiaries or other executors was dispensed with before granting application for amendment to the probate as well as schedule to the petition.
In my view, Mr. Chinoy, learned senior counsel appearing for the petitioners is right in his submission that the amendment sought by the respondent was with a view to obviate any claim and police action against him. There is no dispute that the testamentary court cannot decide the title of the deceased in the property forming part of the estate of the said deceased. Even if according to executor, there was mis-description and/or inaccuracy or description of the property was inadvertently mentioned as ownership property, no amendment to correct such alleged mis-description, inaccuracy or description of the property could be carried out without effecting service of notice and copy of application on the beneficiaries, legal heirs and other executors. The learned Prothonotary & Senior Master ought to have directed the respondent to make an application before the court instead of deciding such application for amendment himself even on the ground of gross delay in making application by the respondent for seeking such amendment.
23. In my view on bare reading of Rule 304 of the Bombay High Court (Original Side) Rules, it is clear that the Prothonotary & Senior Master is empowered to rectify the inaccuracy or clerical or arithmetical error in the order. However, the same can be exercised after notice to the parties. On perusal of the application for amendment made by the respondent before Prothonotary & Senior Master, it is clear that application was not made for rectifying any inaccuracy or clerical or arithmetical error. In my view, the ::: Downloaded on - 27/11/2013 20:25:47 ::: .. 22 .. MPT-54.2012.sxw amendment sought by the respondent for substitution of description of the property completely in schedule to the petition, could not have been considered as correction of any inaccuracy or clerical or arithmetical error which could be corrected by exercising discretionary power by the Prothonotary and Senior Master under rule 304 of the Bombay High Court (Original Side) Rules. The amendment applied by the respondent was of substantial nature and would affect the rights of the beneficiaries. In my view the Prothonotary and Senior Master could not decide the issue of inaccuracy about the description of the property in the probate petition or probate and that also without hearing the beneficiaries/legatees who would be substantially affected by any such amendment if allowed by the Prothonotary and Senior Master.
24. It is not in dispute that the respondents being one of the executor alongwith his brother had also claimed rights in the portion of the building Mercantile House, which was one of the property described in the Will of the deceased. The dispute between the beneficiaries and the executors had already started when said application for amendment was made by the respondent before the Prothonotary and Senior Master. In view of the rights, claimed by the respondent and his family members in the properties stated to be forming part of the estate of the deceased, respondent could not have made application for amendment and could not have obtained an order exparte without affecting the service of the notice and copy of the application served upon the beneficiaries. In my view, such action on the part of the respondent in filing such application and obtaining exparte order from Prothonotary & Senior Master is mischievous and obviously was with a view to obviate any claim and police action against him at the instance of the ::: Downloaded on - 27/11/2013 20:25:47 ::: .. 23 .. MPT-54.2012.sxw petitioners or was with a view to substantiate and improve his own claims against the beneficiaries in those properties. In my view the order passed by the learned Prothonotary and Senior Master allowing the amendment would be contrary and beyond his powers under Rule 304 of the Bombay High Court (Original Side) Rules. The amendment allowed by the learned additional Prothonotary & Senior Master are of exhaustive nature and accordingly the learned Prothonotary and Senior Master ought to have placed the matter before the learned Judge hearing such matters for passing appropriate orders for amendment after notice to the parties so as to bring it in conformity with the judgment or rectify the error.
25. Reliance is placed on section 3 of the Limitation Act by Mr. Chinoy, learned senior counsel in support of his submission that application for rectification was made after three years from the date on which the probate was granted by this court and was thus barred by law of limitation. It is not in dispute that that the probate petition was allowed by this court on 13th December, 2007 whereas application was made by the respondent for amendment before the Prothonotary and Senior Master on 4 th August, 2011 which was after three years from the date of grant of probate by this court. In my view, even if such application for amendment of the grant of probate would have been made before this court, in view of Article 137 of schedule I of Limitation Act, 1963, such application which is filed after three years from the date of grant of probate by this court, could not have been allowed as was barred by law of limitation. The learned Additional Prothonotary and Senior Master thus in my view could not have allowed such time barred application.
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26. On perusal of section 261 of the Indian Succession Act, it is clear that even the court has limited power of rectification of errors in the name or description or in setting forth time and place of the death of the deceased and is not to grant amendment of substantial nature which would directly affect the rights of the parties.
27. As far as submission of Mr.Dhond, learned senior counsel that power to amend grant includes power to amend pleadings is concerned, I am of the view that the learned Prothonotary and Senior Master has no power to grant any amendment in a disposed of proceedings under Rule 304 of the High Court (Original Side) Rules.
28. As far as submission of Mr.Dhond, that the learned Prothonotary and Senior Master has even if has committed an error same was an error within his jurisdiction which can not be interfered with by this court, in my view, the amendment as allowed by the learned Additional Prothonotary and Senior Master cannot be considered as an amendment having been allowed by exercising discretionary power. In my view, such amendment itself was beyond the powers of the Additional Prothonotary and Senior Master as it would affect the rights of the parties substantially and thus interference with such order caused by the Additional Prothonotary and Senior Master is warranted by this court.
29. As far as submission of Mr.Dhond, learned senior counsel that when the first amendment carried out by the executor by which the said deceased was shown to have exclusive ownership rights in respect of the building Mercantile House itself was incorrect and carried out inadvertently ::: Downloaded on - 27/11/2013 20:25:47 ::: .. 25 .. MPT-54.2012.sxw petitioners could not object to the second amendment is concerned, in my view even if according to the executor, the earlier amendment was carried out inadvertently due to any reason, he was bound to effect service of such amendment application upon the beneficiaries, legal heirs of the said deceased and other executors and could not have applied for correction of any such error alleged to have been carried out inadvertently. The amendment sought to be made by the respondent by making an application would not indicate that the same was for correcting any inaccuracy in the probate petition and grant which could be corrected by the Prothonotary and Senior Master.
30. As far as judgment of the Supreme Court in case of Peethani Suryanarayanan (supra) relied upon by Mr.Dhond, learned senior counsel is concerned, on perusal of the said judgment, it is clear that in the said matter, the applicant had applied for correction of the evident typographical mistake which is not the case before this Court. The said judgment is clearly distinguishable in the facts of this case and is of no assistance to the respondent. As far as judgment of the Supreme Court in case of Niyamat Ali (supra) relied upon by Mr.Dhond is concerned, on perusal of the said judgment, it is clear that there was a clear case of mis-description of the suit property and considering the facts of that case, Supreme Court held that no prejudice would be caused to the defendants if the plaint and decree were amended at that stage. In this case, beneficiaries have not accepted that there was any mis-description of the property alleged by the executor in the schedule to the probate petition. In my view, the facts of the judgment in case of Nimayat Ali (supra) are clearly distinguishable with the facts of this case and the said judgment is of no assistance to the respondent.
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31. I am not inclined to accept the submission of Mr.Dhond that there was any accidental error committed by the executor while carrying out the first amendment of the schedule of the probate petition which could be corrected by carrying out amendment. It is the case of the respondent himself in the affidavit in reply filed in this proceedings that it came to the knowledge of the executor that one of the partner of M/s.Mercantile Corporation Mrs.Jaloo Karanjawala was alive and became sole proprietor of the said M/s.Mercantile Corporation and became entitled to claim ownership of the Mercantile House and the deceased himself could not have bequeathed any such property to the beneficiaries, respondent applied for amendment to the probate petition. In my view, such allegations having been seriously disputed by the beneficiaries, on the basis of his so called knowledge derived after more than three years from the date of grant of probate, respondent not having issued any notice or did not obtain consent of the beneficiaries, the legal heirs and other executors itself clearly indicates that the application for carrying out amendment was with malafide intention and to obviate any action from the police and also with a view to improve his own claim made in respect of the building Mercantile House alongwith his other family members.
32. Such amendment carried out ex-parte by the respondent is thus unsustainable and deserves to be set aside. I, therefore, pass the following order :-
(a) Orders dated 4th August, 2011 and
6th August, 2011 passed by the Additional
Prothonotary and Senior Master are set aside.
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(b) Application dated 4th August, 2011
made by the respondent for amendment is
rejected.
(c) Respondent is directed to submit the
original probate obtained by the respondent
duly amended in the office of the Prothonotary
and Senior Master for deletion of the
amendment carried out pursuant to the orders
dated 4th August, 2011 and 6th August, 2011,
within two weeks from today.
(d) Prothonotary and Senior Master is
directed to delete the amendment carried out
by the respondent pursuant to the orders dated
4th August, 2011 and 6th August, 2011 to the
probate as well as petition.
(e) There shall be no order as to costs.
(R.D. DHANUKA, J.)
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