Gujarat High Court
Narotambhai Govindbhai Kachhatiya vs Mulraj @Mukeshbhai Govindbhai ... on 24 March, 2025
NEUTRAL CITATION
C/SA/30/2025 ORDER DATED: 24/03/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SECOND APPEAL NO. 30 of 2025
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2024
In R/SECOND APPEAL NO. 30 of 2025
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NAROTAMBHAI GOVINDBHAI KACHHATIYA & ORS.
Versus
MULRAJ @MUKESHBHAI GOVINDBHAI KACHHATIYA
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Appearance:
MR RC KAKKAD(389) for the Appellant(s) No. 1,2,3,3.1,3.2,3.3,3.4
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CORAM:HONOURABLE MR.JUSTICE SANJEEV J.THAKER
Date : 24/03/2025
ORAL ORDER
1.1 Being aggrieved by the judgment and decree passed by the 2 nd Additional District Judge, Devbhumi Dwarka @ Khambhalia in Regular Civil Appeal No.2 of 2007 whereby the Additional District Judge Devbhumi Dwarka @ Khambhalia dismissed the appeal filed by the appellant defendants and confirmed the judgment and decree dated 27.03.2017 passed by the Additional Civil Judge, District Devbhumi Dwarka @ Khambhalia in Regular Civil Suit No.68 of 2016, the present second appeal has been filed. 1.2 Parties herein are addressed as per their original status before the trial Court.
2.1 The brief facts arising in the present Second Appeal are that the
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plaintiff and defendants are close relatives. Defendant nos.1 and 3 are elder brothers of the plaintiff and defendant no.2 is mother of the plaintiff and defendant nos.1 to 3 and defendant no.4 is son of the defendant no.3. The entire dispute revolves around the property which belonged to the plaintiff's father viz. Late Satvara Govind Vashram who expired on 22.12.2010 and the property in dispute in the suit was purchased by late Satvara Govind Vashram Kachhatia by registered sale deed No.542 dtd.17.07.1973. The plaintiff has put forward his case stating that by way of registered Will having registration Number 2198 dated 11.08.2009, the father of the plaintiff has bequeathed the properties in his favour and as the defendants started construction on the suit premises and plaintiff being the owner of the property by registered Will, the plaintiff filed Regular Civil Suit No.68 of 2016. The defendants had appeared in the suit and taken contention that the suit property was purchased out of the joint family income of the father of the plaintiff Late Satvara Govind Vashram and defendant nos.1 and 3 and as the father of the defendants was the head of the family, registered sale-deed has been made in the name of the father of the plaintiff and, therefore, it is contended that the suit property is joint family property and the defendants have right, title and interest in the said property. The Page 2 of 14 Uploaded by MISHRA AMIT V.(HC00187) on Thu Mar 27 2025 Downloaded on : Thu Mar 27 21:46:36 IST 2025 NEUTRAL CITATION C/SA/30/2025 ORDER DATED: 24/03/2025 undefined defendants have also taken contention that disputed property is purchased out of the joint family income and, therefore, late Satvara Govind Vashram could not have executed the Will with respect to the suit property and, therefore, it has been contended by the defendants, that the father of the plaintiff and the defendant nos.1 and 3 did not have any right to bequeath the suit property, which according to defendants is purchased from joint family income. Moreover, a contention has also been taken that as no probate certificate has been obtained by the plaintiff, the plaintiff can not have any legal right to claim by way of the said Will. After considering the documentary and oral evidence and after giving findings on all the issues that have been framed vide Exh.95, the trial Court, partly allowed the suit filed by the plaintiff and the trial Court held that the plaintiff is entitled to peaceful possession of the property mentioned in Annexure-A of the plaint and directed the defendants to handover peaceful possession to the plaintiff of the property mentioned in Annexure-A at serial no.1 and held that plaintiff is at liberty to remove additional construction made on the property mentioned in Annexure-A at serial no.1 of the plaint and prohibited the defendants from interfering with the possession of the plaintiff in regard to the property at serial no.1 at Annexure-A. Page 3 of 14 Uploaded by MISHRA AMIT V.(HC00187) on Thu Mar 27 2025 Downloaded on : Thu Mar 27 21:46:36 IST 2025 NEUTRAL CITATION C/SA/30/2025 ORDER DATED: 24/03/2025 undefined 2.2 Being aggrieved by the said order, the defendants filed Regular Civil Appeal No.02 of 2017 and after re-appreciating the evidence, the appellate Court dismissed the appeal and confirmed the judgment and decree of the trial Court passed in Regular Civil Suit No.68 of 2016 and hence the present second appeal.
3.1 Learned advocate for the defendant has canvassed his argument on the ground that the suit property is joint property and by Will the father could not have bequeathed the property in favour of the plaintiff. It has also been argued that the trial Court has not rightly taken into consideration the oral evidence of the parties more particularly of plaintiff wherein plaintiff has stated that the suit property has been purchased from the joint income. 3.2 Moreover, it has been argued that in the plaint, the suit value is mentioned at Rs.3/-Lakhs while in cross-examination, the plaintiff has admitted that the valuation of the suit property is Rs.60/- Lakhs and despite the fact that the suit has been under-valued by the plaintiff, the Court has not considered the said aspect. Moreover, it has been argued that the Court has not considered the aspect that there is no income of late Satvara Govind Vasram in the year 1991 and it has been argued that the fact that the father of the plaintiff has Page 4 of 14 Uploaded by MISHRA AMIT V.(HC00187) on Thu Mar 27 2025 Downloaded on : Thu Mar 27 21:46:36 IST 2025 NEUTRAL CITATION C/SA/30/2025 ORDER DATED: 24/03/2025 undefined executed the Will was never disclosed and mutation entry with respect to the said Will was also without issuance of notice under Section 135(D) of the Bombay Land Revenue Code and the Will has not been proved as envisaged under the provisions of the Evidence Act. It has also been argued that the plaintiff had not come before the Court with clean hands. It has been argued that the plaintiff was aware that the other property in question is ancestral property. It has also been argued that the admission of the plaintiff in the cross-examination where the plaintiff has admitted that the property has been purchased from the joint income of the family has not been considered by the trial Court as well as the appellate Court. It has also been argued that the Court should have considered the evidence of Natvarbhai Muljibhai who has been examined at Exh.190 where he has stated that the deceased Govindbhai was doing labour work at his premises along with the defendant no.1 and defendant no.3 and, therefore, it is the case of the defendant that the deceased Satvara Govind Vasram, defendant no.1 and defendant no.3 were working together and the suit property was purchased jointly by deceased along with defendant no.1 and defendant no.3. It has also been argued by learned advocate for the defendant that the plaintiff himself has stated in his cross- examination that during the life-time of the father, the distribution of Page 5 of 14 Uploaded by MISHRA AMIT V.(HC00187) on Thu Mar 27 2025 Downloaded on : Thu Mar 27 21:46:36 IST 2025 NEUTRAL CITATION C/SA/30/2025 ORDER DATED: 24/03/2025 undefined the property has been done and if that was the factual aspect then father viz. Satvara Govindbhai Vashram could not have executed the Will regarding the property in favour of plaintiff. It has also been argued by learned advocate for the defendant that substantial questions of law are involved and there is admission made by the plaintiff that the property is ancestral property and that the division has been made with respect to property during the life-time of the father and that property has been purchased by joint income of the family and, therefore, it has been argued that the present Second Appeal is required to be admitted.
4.1 Having heard learned advocate for the defendant and having perused the judgment and decree and the paper-book containing proceedings of Special Civil Suit No.36 of 2011 (New Regular Civil Suit No.68 of 2016) that has been supplied by learned advocate for the defendant, which is taken on record, the fact remains that the suit that has been filed is with respect to two properties i.e. one which is self-acquired property purchased by the registered sale-deed and another is ancestral property and the Will that has been executed is with respect to property that belongs to the deceased and in the said suit, relief that has been sought is that the property purchased by registered sale-deed dated 11.08.2009, to declare that in view of the Page 6 of 14 Uploaded by MISHRA AMIT V.(HC00187) on Thu Mar 27 2025 Downloaded on : Thu Mar 27 21:46:36 IST 2025 NEUTRAL CITATION C/SA/30/2025 ORDER DATED: 24/03/2025 undefined said Will the plaintiff is the only owner of the property and that present defendant did not have any right, title or interest in the said property and to cancel the revenue entry and for direction to the defendant to handover the premises to the plaintiff and for injunction restraining the defendants from transferring, assigning and selling the property to third party and restraining the defendants from making any construction and / or demolition in the suit premises. 4.2 The fact remains that plaintiff relies on registered Will executed by Late Satvara Govind Vashram on 11.08.2009 which is produced vide Exh.146. The fact also remains that the said Will is registered Will and the witnesses to the said Will are Chhaganbhai Rudabhai and Kishorbhai Vasrambhai Mongara who have been examined vide Exhs.155 and 159 respectively and both the witnesses have reiterated that the Will was executed in their presence and they along with the deceased had gone to the Sub-registrar office for executing the said Will. Moreover, the said Will is a registered Will and during the life- time of late deceased Satvara Govindbhai Vashrambhai, for a period of more than one year, he himself has never challenged that the said Will has not been executed by him and, therefore, the Will has been proved by plaintiff as per Section 68 of the Evidence Act, which reads as under:
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NEUTRAL CITATION C/SA/30/2025 ORDER DATED: 24/03/2025 undefined "68. Proof of execution of document required by law to be attested.
If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence :[Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a Will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 (XVI of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied.] [Inserted by Act 31 of 1926, Section 2.]"
Therefore, as the said Will has been proved by the fact that two attesting witnesses have proved the execution of the said Will and endorsement of the Sub-registrar Office on the Will also amounts to attestation of the said Will. The defendants have neither examined any independent witness to prove the fact that the said Will was not properly executed nor it is the case of the defendant that the testator was not in good health to execute the said Will but the only contention that the defendant has raised is that, property bequeathed to the plaintiff was purchased from the joint income of the family and that during the life-time of deceased he had already distributed the property.
4.3 The fact remains that there is no counterclaim and / or the
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separate suit claiming that defendants are owners of the property and there is no claim that late deceased was not exclusive owner of the property as the said property was purchased from the joint income of the family. Moreover, the fact also remains that it is an admitted position that the property mentioned at Annexure-A at Serial No.1 in the plaint was self-acquired property purchased by deceased Satvara Govindbhai Vashrambhai by registered sale-deed and,therefore, it cannot be said that the same is ancestral property and / or property purchased from the joint income of the family. Moreover, in the present case, the Will of deceased Satvara Govind Vashram was registered one and the plaintiff has discharged onus of proving the Will and along with that, deposition of attesting witnesses Nakumbhai and Kishorbhai who have also supported the case of the plaintiff and, therefore, onus shifted on the defendant who has opposed the said Will of late Satvara Govindbhai Vashrambhai, to bring material on record to dislodge the case of plaintiff in which case the onus would have shifted back to the plaintiff, to satisfy the Court that the late Satvara Govindbhai Vashrambhai did not have authority to attest the Will and that he was not in the capacity to execute the same.
4.4 In the present case, the burden to prove that Will has been
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executed and is genuine document is upon the plaintiff. Therefore, it was for the plaintiff to prove that the deceased has signed the Will and he has put his signature out of his own Will, having sound mind and he understood the nature and effect thereof and in the present case by sufficient evidence, the plaintiff has discharged his burden of proving the Will and onus of proof was on the defendant to prove by cognate evidence that deceased was not capable of executing the Will in favour of plaintiff with respect to property mentioned in the plaint, as the same were purchased from the joint income of the family. In the present case, for the genuineness of the Will, the plaintiff has examined attesting witnesses of the Will. Even the plaintiff has examined the advocate Mrs.Sangeeta Modi vide Exh.160, who has admitted that late Satvara Govindbhai Vashrambhai, had signed the said Will in her presence along with both witnesses and, therefore, the trial Court and the appellate Court have rightly held that the Will executed by deceased which is registered Will has been duly proved by plaintiff according to Law. Moreover, the fact that the suit property mentioned at Annexure-A at Serial No.1, is a self-acquired property and the said property has been purchased by registered sale- deed (Exh.126) in the year 1973 by deceased Satvara Govindbhai Vashrambhai.
Page 10 of 14 Uploaded by MISHRA AMIT V.(HC00187) on Thu Mar 27 2025 Downloaded on : Thu Mar 27 21:46:36 IST 2025 NEUTRAL CITATION C/SA/30/2025 ORDER DATED: 24/03/2025 undefined 4.5 The other fact that has been argued by learned advocate for the
defendant is that the plaintiff cannot claim any right by virtue of the Will executed by father bearing No.2198 dtd.11.08.2009, unless and until the plaintiff has asked for probate or letter of administration on the basis of the said Will, the learned appellate Court was right in relying upon the judgment reported in 2022 (4) GLH 541 in the case of Drupadsinh Kshtirya vs. Gangaben Narharisinh Kshtirya, wherein it has been made clear that probate of Will not to be obtained by Hindu with respect to Will made outside the territories or regarding immovable situate outside territory. Relevant para of the said decision in the case of Drupadsinh Kshtirya vs. Gangaben Narharisinh Kshtirya (supra) relied upon by the Appellate Court is as under:
"Thus, while by virtue of Sub-section (1) of Sec.213 of the said Act, it is provided that no right as executor of legatee can be established in any Court of Justice unless Probate or Letter of Administration is granted, however as provided in sub-Section (2) clause (I) thereof, the same shall apply in the case of Wills made by any Hindu, Buddhist, Sikh or jaina where such Wills are of the classes specified in clauses (a) and (b) of Section 57. Now, as per Clause (b) to Sec.57, all such Wills and condicils made outside those territories and limits that is to say of Bengal, Madras, and Bombay, so far as it relates to immovable property situate within those territories. The Apex Court in the decision in Clarence Pais and other (Supra) (paragraph No.6) so also this Court in the decision in Minaxiben Page 11 of 14 Uploaded by MISHRA AMIT V.(HC00187) on Thu Mar 27 2025 Downloaded on : Thu Mar 27 21:46:36 IST 2025 NEUTRAL CITATION C/SA/30/2025 ORDER DATED: 24/03/2025 undefined Shashikantbhai patel (Supra) (paragraph 10) have held that Probate will not be obtained by a Hindu in respect of a will made outside those territories or regarding the immovable situate outside those territories."
4.6 In the present case, defendants have not challenged the said Will before any competent authority and it is for the first time, the execution of the said Will has been challenged in written statement at Exh.47 by defendants.
5. Therefore, also the defendant has miserably failed to show that there is any substantial question of law involved in the present appeal and the substantial question of law which has been formulated in the memo of appeal are also not substantial question of law and on facts and the said factual aspect has well been considered by the Trial Court and the First Appellate Court.
6. It is required to be noted that in Second Appeal, the scope is very limited and the Court cannot re-appreciate the evidence. In the case of Navaneethammal v. Arjuna Chetty reported in 1996 (6) SCC 177, the Hon'ble Apex Court has observed as under:-
"11. This Court, time without number, pointed out that interference with the concurrent findings of the courts below by the High Court under Section 100 CPC must be avoided unless warranted by compelling reasons. In any case, Page 12 of 14 Uploaded by MISHRA AMIT V.(HC00187) on Thu Mar 27 2025 Downloaded on : Thu Mar 27 21:46:36 IST 2025 NEUTRAL CITATION C/SA/30/2025 ORDER DATED: 24/03/2025 undefined the High Court is not expected to reappreciate the evidence just to replace the findings of the lower courts."
7. In the case of Jaichand (Dead) through Lrs and Other v. Sahnulal and Another reported in 2024 SCC OnLine SC 3864, the Hon'ble Apex Court has observed as under:-
"28. It is thus clear that under Section 100 CPC, the High Court cannot interfere with the findings of fact arrived at by the first Appellate Court which is the final Court of facts except in such cases where such findings were erroneous being contrary to the mandatory provisions of law, or its settled position on the basis of the pronouncement made by the Apex Court or based upon inadmissible evidence or without evidence."
8. Under the circumstances, this Second Appeal is devoid of any substantial question of law. Both the learned Trial Court and first appellate Court have rightly decided the issue between the parties in the right perspective and as stated above no substantial question of law arises in the present appeal. The defendant has failed to prove his case before the learned trial Court as well as before the first appellate Court. This Court does not find any substance in the present Second Appeal as the same is devoid of any merit both on facts and law and the same is dismissed at admission stage. In view of the order passed in the Second Appeal, the Civil Application does not survive and the same is accordingly disposed of. The connected civil application/s, if Page 13 of 14 Uploaded by MISHRA AMIT V.(HC00187) on Thu Mar 27 2025 Downloaded on : Thu Mar 27 21:46:36 IST 2025 NEUTRAL CITATION C/SA/30/2025 ORDER DATED: 24/03/2025 undefined any, shall stand disposed of accordingly.
(SANJEEV J.THAKER,J) MISHRA AMIT V. Page 14 of 14 Uploaded by MISHRA AMIT V.(HC00187) on Thu Mar 27 2025 Downloaded on : Thu Mar 27 21:46:36 IST 2025