Gujarat High Court
Sunil Kennykumar Nihalani vs Motikumar Harchandrai Nihalani on 8 October, 2021
Equivalent citations: AIRONLINE 2021 GUJ 1982
Author: B.N. Karia
Bench: B.N. Karia
C/SCA/16692/2019 CAV JUDGMENT DATED: 08/10/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 16692 of 2019
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2021
In R/SPECIAL CIVIL APPLICATION NO. 16692 of 2019
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE B.N. KARIA
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1 Whether Reporters of Local Papers may be allowed No
to see the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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SUNIL KENNYKUMAR NIHALANI
Versus
MOTIKUMAR HARCHANDRAI NIHALANI
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Appearance:
MR. D.C.DAVE, LD. SR.COUNSEL FOR MR JIGAR M PATEL(3841) for the
Petitioner(s) No. 1,2
DELETED(20) for the Respondent(s) No. 4
MR SP MAJMUDAR(3456) for the Respondent(s) No. 1
NOTICE UNSERVED(8) for the Respondent(s) No. 2,3
SHASHVATA U SHUKLA(8069) for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE B.N. KARIA
Date : 08/10/2021
CAV JUDGMENT
Learned advocate appearing for the petitioners requested to delete the respondents No. 2 and 3 as they are not proper party. Page 1 of 17 Downloaded on : Sat Oct 09 04:31:58 IST 2021 C/SCA/16692/2019 CAV JUDGMENT DATED: 08/10/2021 Learned advocate appearing for the respondents has no objection if permission to delete the respondent Nos. 2 and 3 is granted. Permission as sought for stands granted.
1. Present petitioners are the Original Opponent Nos. 1 and 4 in Civil Misc. Application No. 97 of 2015 before the trial Court have challenged legality and validity of the order passed in application below Exh.54 by the learned 28th Additional Senior Civil Judge, Vadodara on 31.8.2019 filed by them and requested to allow the said application below Exh.54.
2. The short facts leading to the present case are as under:-
2.1 Respondent No.1 filed probate application being Probate Application No. 97 of 2015 on 22nd June, 2015 before the Court of learned Senior Civil Judge, Baroda, seeking probate/letters of administration of Will dated 12.2.2015 alleged to have been executed by the father of the petitioners in favour of respondent No.1. Upon issuance of public notice, present petitioners appeared before the Court and filed their objections with regard to issuance of Probate/Letters of Administration in favour of applicant -respondent Page 2 of 17 Downloaded on : Sat Oct 09 04:31:58 IST 2021 C/SCA/16692/2019 CAV JUDGMENT DATED: 08/10/2021 No.1 on the ground that Will dated 12th February, 2015 was forged and concoted one. The petitioners also filed Special Civil Suit No. 242 of 2016 before the Court of learned Principal Senior Civil Judge, Vadodara on 25th June, 2016 with a prayer to pass decree of cancellation of forged Will dated 12th February, 2015 alleged to have been executed by their father in favour of respondent No.1. They further prayed for decree of permanent injunction restraining the respondent No.1 from transferring the disputed properties. On 27 th August, 2018, petitioners filed an application below Exh.54 in Civil Misc. Application No. 97 of 2015 with a prayer for consolidation of two proceedings i.e. Civil Misc. Application No. 97 of 2015 and Special Civil Suit No. 242 of 2016 and for recording common evidence of both these proceedings. Petitioners also filed an application below Exh. 55 seeking hearing of the application below Exh. 54 prior in point of time before the proceedings further with the probate proceedings. Respondent No.1 opposed the said application below Exh. 54 filed by the petitioners. After hearing the parties, learned 28th Additional Senior Civil Judge, Vadodara rejected the application below Exh.54 filed by the petitioners vide order dated 31st August, 2019 . Hence, this petition.Page 3 of 17 Downloaded on : Sat Oct 09 04:31:58 IST 2021
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3. Heard learned advocates appearing for the respective parties.
4. Learned advocate for the petitioners has strongly argued that the reasons arrived at by learned Judge rejecting the application below Exh.54 are erroneous and illegal. That, the objection filed by the present petitioners in the Probate Application No. 97 of 2005 and ground raised in the plaint of Special Civil Suit No. 242 of 2016 are bound to be same as to how the Will dated 12 th February 2015 was executed by the father of the petitioners in favour of respondent No.1 and it is forged and concocted one. That, two more prayers were made by the petitioners in respect of possession and restraining defendants in transferring the suit properties of Special Civil Suit No. 242 of 2016 filed by them. That, learned trial Court has exceeded the jurisdiction by rejecting the application below Exh.54 as no prejudice would have been caused to respondent No.1. That, the consolidation of two proceedings would have prevented multiplicity of proceedings between the same parties. That, observations made by trial Court in Special Civil Suit No. 242 of 2016 which was filed subsequent in point of time (after one year) Page 4 of 17 Downloaded on : Sat Oct 09 04:31:58 IST 2021 C/SCA/16692/2019 CAV JUDGMENT DATED: 08/10/2021 then the Probate Proceedings i.e. Civil Misc. Application No. 97 of 2015 are not proper for rejection of the application, as common issues were involved in both the proceedings. Therefore, it was proper that common evidence is led by both the parties so as to avoid the possibility of two contradictory judgements. In support of his arguments, learned advocate appearing for the petitioner has relied upon the decision rendered in case of Smt. Multivabhujiw/o. Goswami Goverdhaneshji Girdharlalji Vs. Smt. Kalindivabhuji and others reported in AIR 1994 GUJARAT 42. Hence, it was requested by learned advocate for the petitioners to allow the present petition.
5. Per contra, learned advocate appearing for the respondents has strongly objected the submissions made by the petitioners and submitted that this petition itself is required to be dismissed on the ground of material suppression of facts as the petitioners have suppressed the filing of an application under section 10 of the Code of Civil Procedure, 1908 for staying the proceedings of Special Civil Suit No. 242 of 2016. It is further submitted that Probate Application i.e. Civil Misc. Application No. 97 of 2015 was filed on Page 5 of 17 Downloaded on : Sat Oct 09 04:31:58 IST 2021 C/SCA/16692/2019 CAV JUDGMENT DATED: 08/10/2021 22th June, 2015 wherein, objections were filed by the petitioners on 30th December, 2015. That, Special Civil Suit No. 242 of 2016 was filed on 25th June, 2016. That, Probate Application i.e. Civil Misc. Application No. 97 of 2015 was filed previously by respondent No.1 Therefore, application for stay of trial/proceeding of the Civil Suit filed by the petitioners was required under Section 10 of Code of Civil Procedure, 1908. That, application below Exh.54 for consolidation of Civil Misc. Application No. 97 of 2015 is not maintainable as there is no provision for consolidation under the Code of Civil Procedure, 1908. That, Probate Court has exclusive jurisdiction to decide the issues regarding the legality and validity of the Will. That, the proceedings of the Probate Application would be carried out in the manner prescribed under the Indian Succession Act, 1925. That, Probate Court alone has exclusive jurisdiction in respect of matters regarding the legality and validity of the Will. That, such an order as prayed by the petitioners in their application below Exh.54 cannot be passed without the consent of parties in both the proceedings. That, consent of parties is a pre-requisite for any order of consolidation. That, order passed by the trial Court refusing consolidation is a discretionary order which does not call Page 6 of 17 Downloaded on : Sat Oct 09 04:31:58 IST 2021 C/SCA/16692/2019 CAV JUDGMENT DATED: 08/10/2021 for any interference under the supervisory jurisdiction of this Court under Article 227 of the Constitution of India. That, Special Civil Suit No. 242 of 2016 was filed by the petitioners subsequent point of time (after one year) after probate proceedings being Civil Misc. Application No. 97 of 2015 and these two proceedings do not deserves to be clubbed together. In support of his arguments, learned advocate has relied upon the decision rendered in case of Chiranjilal Shrilal Goenka Vs. Jasjit Singh and Others reported in (1993) 2 SCC 507. Hence, it was requested by learned advocate appearing for the respondent No.1 to dismiss the petition.
6. Having heard learned advocates appearing for the respective parties and from the contents of the application below Exh.54, probate proceedings being Civil Misc. Application No. 97 of 2015 filed by respondent No.1 and contents of the plaint of Special Civil Suit No. 242 of 2016 filed by the present petitioners, it appears that the relief was sought by the respondent No.1 in its application for probate to the effect that present petitioners who are executors of the Will, have renounced to act as executor of the Will and letter of administration with authenticated true copy of Will be granted in Page 7 of 17 Downloaded on : Sat Oct 09 04:31:58 IST 2021 C/SCA/16692/2019 CAV JUDGMENT DATED: 08/10/2021 favour of the respondent No.1 who is ligatee/beneficiary of the Will with all the recognized rights to the properties and to take/recover all the yielding, interest, mesne profits and all the benefits of the property which was annexed to it or which may be earned in future till its realization. In Special Civil Suit No. 242 of of 2016 preferred by the petitioners, relief was sought that Will dated 12 th February, 2015 be declared as ab initio, null and void along with ancillary proceedings. It is not in dispute that present petitioners have filed their written objections vide Exh. 27 by the petitioner in probate application. in Probate Application. If we consider the averments made in the plaint of Special Civil Suit No. 242 of 2016, identical objections were raised in their written objections below Exh. 27 by the petitioners in probate application. It is not in dispute that Probate Application was filed on 22nd June, 2015. Subsequently, Special Civil Suit No. 242 of 2016 was filed by the present petitioners in June, 2016. Written Objections were submitted below Exh. 27 by the petitioners in Probate Application on 30th December, 2015. Special Civil Suit No. 242 of 2016 was filed after one year from the date of filing of the Probate Application by respondent No.1 and after six months from the date of filing of written objections in Probate Page 8 of 17 Downloaded on : Sat Oct 09 04:31:58 IST 2021 C/SCA/16692/2019 CAV JUDGMENT DATED: 08/10/2021 Application below Exh.27. The question of genuineness of the Will executed by father of the petitioners dated 12 th February, 2015 would require to be adjudicated by the Court.
7. This Court in case of Smt. Multivahuji W/o. Goswami Goverd-haneshji Girdharlalji (Supra) has dealt with the similar question of Probate Application preferred by the petitioners on 25 th January, 1982 under the provisions of Indian Succession Act and Special Civil Suit No. 8 of 1982 filed by the Objector for partition of coparcenary properties inter alia contending that movable and immovable properties left behind by deceased were ancestral properties in his hand and son of deceased, has his share in coparcenary properties. After almost 10 years, on 20th February, 1992, application below Exh.152 was filed by the objector contending that application for probate filed by widow of deceased as well as Special Civil Suit No. 9 of 1982 filed by the respondents for partition of the ancestral property should be consolidated and tried together inasmuch as widow of deceased was claiming under a Will and she had applied for probate while respondent have challenged the genuineness, legality and validity of the Will. Both Page 9 of 17 Downloaded on : Sat Oct 09 04:31:58 IST 2021 C/SCA/16692/2019 CAV JUDGMENT DATED: 08/10/2021 in their reply as well as in the substantive suit filed by them for partition of the property issues arisen in both the proceedings between the parties are substantially same and findings on such issues in one proceeding are likely to affect the finding in another proceedings, and therefore, the application for probate as well as Special Civil Suit should be consolidated and tried together. In case of Smt. Multivahuji W/o. Goswami Goverd-haneshji Girdharlalji (Supra), Hon'ble Apex Court has observed as under:-
24. From the nature of the aforesaid two proceedings it can be said that some of the issues which arise in both the proceedings as regards capacity of the testator at the time when he made the will and as regards due execution and attestation of the will and as regards consideration of allegedly suspicious circumstances surrounding the will, common question of facts would arise in both the proceedings and evidence in both the proceedings would be common. However, the evidence as regards nature of the property as to whether it was self-
acquired or ancestral and as regards title of the testator over it and also as regards availability of such property for partition by metes and bound would be the questions which would arise in special civil suit only.
26. It is true that the Civil Procedure Code does not provide for joint trial of the suits, but at the same time it is now well accepted position of law that Under Section 151 of the Code of Civil Procedure in appropriate cases an order for consolidation of the cases can be made. The Courts have even ordered joint trial of the cases. A Court has inherent power ex debito justitiae to consolidate suits, where it is in the ends of justice to do so to avoid needless expenses and inconvenience to parties. In deciding whether two or more suits should be consolidated or not, the whole question is whether or not, in the long run, it will be expeditious and advantageous to all concerned to have the two suits tried together as analogous cases. Where it appears that there is sufficient unity, or similarity in the matter in issue in the suits or that the determination of the suits rests mainly on a common question, it is convenient to have them tried as analogous cases.
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27. However, at the same time it shall have to be kept in mind that the jurisdiction of the Court in contentious probate proceeding is exclusive and limited and for the issues which squarely fall within the jurisdiction of the probate Court, the judgment of the probate Court would operate as res judicata. Therefore, in my opinion it would be just and proper to see that the probate Court proceed with the issues which exclusively fall within its jurisdiction. Once the evidence is recorded on the issues which exclusively fall within the jurisdiction of the probate Court, the Court shall proceed to record evidence on issues which arise in the special civil suit and which do not fall within the jurisdiction of the probate Court.
8. Another decision rendered in case of Chiranjilal Shrilal Goenka (Deceased) Through LRS. Vs. Jasjit Singh and others reported in (1993) 2 SCC 507 relied upon by learned advocate for the respondent, in para 15, Hon'ble Apex Court referred the case of Ishwardeo Narain Singh Vs. Smt. Karnta Devi, observed as under :-
"15. In Ishwardeo Narain Singh v. Smt Kamta Devi this Court held that the court of probate is only concerned with the question as to whether the document put forward as the last will and testament of a deceased person was duly executed and attested in accordance with law and whether at the time of such execution the testator had sound disposing mind. The question whether a particular bequest is good or bad is not within the purview of the probate court. Therefore the only issue in a probate proceedings relates to the genuineness and due execution of the will and the court itself is under duty to determine it and preserve the original will in its custody. The Succession Act is a self-contained code insofar as the question of making an application for probate, grant or refusal of probate or an appeal carried against the decision of the probate court. This is clearly manifested in the fascicule of the provisions of the Act. The probate proceedings shall be conducted by the probate court in the manner prescribed in the Act and in no other ways. The grant of probate with a copy of the will annexed establishes conclusively as to the appointment of the executor and the valid execution of the will. Thus it does no more than establish the factum of the will and the legal character of the executor. Probate court does not decide any question of title or of the existence of the property itself.Page 11 of 17 Downloaded on : Sat Oct 09 04:31:58 IST 2021
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9. Another judgment relied upon by learned advocate for the respondent No.2 rendered in case of Bhopo Fakirbhai (minor) and another Vs. Bai Mani d/o Jijibhai Bechardas and others reported in AIR 1961 Guj 92 wherein, it is observed as under :-
4. It is not open to the Court to hear witnesses in one suit only and to treat evidence in one suit as evidence in another without the consent of the parties unless the Court has authority to do so under the provisions of the Evidence Act. The learned counsel for the opponents has not pointed out any provisions in the Evidence Act giving the Court such powers to treat the evidence in one suit as evidence in the other suit notwithstanding the issues may be different and notwithstanding that the parties may not be common as in this case. He, however, relies on the case of Kashi Prosad Singh v. Secy. of State for India in Council, ILR 29 Cal 140, which however relates to the consolidation of appeals and deals more or less with the question of Court-fees.
In appeal, there is no question of taking evidence. The Calcutta High Court's decision is not a decision on the question of consolidation of suits. Whatever principles may apply to the consolidation of appeals, I am of the opinion that evidence cannot or ought not to be heard in common in suits without the consent of the parties.
10. In another decision rendered in case of Dalip Singh Vs. State of Uttar Pradesh and others reported in (2010) 2 SCC 114 in para 4, Hon'ble Apex Court has referred the case of Welcome Hotel Vs. State of A.P. wherein, it was held that a party which has misled the Court in passing an order in its favour is not entitled to be heard on the merits of the case. .
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11. The judgment relied upon by learned advocate for the respondent of the Hon'ble Apex Court would certainly binding to this Court. Here, in the instant case common question is involved in both the proceedings initiated by the respondent No.1 in Probate Application No. 97 of 2015 and Special Civil Suit No. 242 of 2016 filed by the petitioners. In both the proceedings, validity of the Will dated 12th February, 2015 executed by the father of the petitioners in favour of respondent No.1 is to be adjudicated. The parties in two proceedings filed by them are common. Similar objections were filed by the present petitioners in Probate Application No. 97 of 2015 vide exh. 27. It is also true that Special Civil Suit No. 242 of 2016 was filed by the present petitioners after one year of filing of the Probate Application No. 97 of 2015 by the respondent No.1. It is pertinent to note that both the proceedings i.e. Civil Misc. Application No. 97 of 2015 as well as Special Civil Suit No. 242 of 2016 are pending before Curt of learned Sr. Civil Judge, Vadodara. It is true that Probate Court is Court of exclusive jurisdiction with respect of certain issues and squarely fall within its jurisdiction. The probate proceedings may decide the issues for trial (a) whether at the Page 13 of 17 Downloaded on : Sat Oct 09 04:31:58 IST 2021 C/SCA/16692/2019 CAV JUDGMENT DATED: 08/10/2021 time of such execution, the testator had sound deposing mind when he made will and (b) Whether Will was duly executed and attested.
12. The second proceedings, being Special Civil Suit No. 242 of 2016, filed by the present petitioners challenging the legality and validity of the Will dated 12th February, 2015 shall have to be gone into by the Court of Senior Civil Judge. In the present case it is not dispute that both the proceedings are pending before the Court of learned Senior Civil Judge, Vadodara. In two proceedings, it can be said that some of the issues which arise in both the proceedings as regards capacity of the testator at the time when he made will and as regards due execution and attestation of the will and as regards consideration of allegedly suspicious circumstances surrounding the Will. Common question of facts would arise in both the proceedings and evidence in both the proceeding would be common. Under the circumstances, when two proceedings, which arise out of the same transaction or where substantial evidence which is to be led is common a joint trial of such proceedings is advisable so that considerable public time and expenses would be saved if the two proceedings are tried jointly and the evidence is recorded in one of Page 14 of 17 Downloaded on : Sat Oct 09 04:31:58 IST 2021 C/SCA/16692/2019 CAV JUDGMENT DATED: 08/10/2021 the two proceedings. It would also avoid inconvenience to the witnessed figuring in two proceeding as they will not be required to reappear and to give evidence in another proceedings which would also be helpful to avoid multiplicity in the trial of the same issues and to avoid conflict of decision. It is therefore, desirable that suits filed by the present petitioners and probate application i.e. Civil Misc. Application No. 97 of 2015 are jointly tried by recording common evidence in Probate Application . However, it shall be kept in mind the jurisdiction of the Court is contentious. Probate proceedings is exclusive and limited and for the issues which squarely falls within the jurisdiction of the probate Court the judgement of the probate court would operate as res judicata. Therefore, it would be just and proper to see that the probate court will proceed with the issues, which exclusively fall within its jurisdiction. Once the evidence is recorded on the issues which exclusively fall within the jurisdiction of the probate court and common issues in Special Civil Suit No. 242 of 2016, the Court shall proceed to record the evidence on remaining issues which arise in Special Civil Suit No. 242 of 2016 which do not fall within the jurisdiction of the probate court. It would be necessary to see that the Page 15 of 17 Downloaded on : Sat Oct 09 04:31:58 IST 2021 C/SCA/16692/2019 CAV JUDGMENT DATED: 08/10/2021 respondent No.1 in probate proceedings would be called upon to begin evidence and his evidence is recorded on all the issues to the probate proceedings first in point of time. In the result, this petition is hereby allowed and order passed in application below Exh. 54 and 55 in Civil Misc. Application No. 97 of 2015 dated 31 st August, 2019 is quashed and set aside. Both the proceedings shall be tried by the Court, wherein probate proceedings are pending.
It would be open for the Court to decide the application under Section 10 of C.P.C. independently.
After pronouncing this judgement, learned advocate appearing for the respondent has requested to stay this judgement passed by this Court.
Learned advocate appearing for the petitioners has objected that the otherside is facing trial before the trial Court day to day. Therefore, prayer made by the learned advocate for the respondent cannot be allowed by this Court.
Considering the issue involved in Special Civil Suit No. 242 of 2016, request of the learned advocate for the respondent stands rejected.
Page 16 of 17 Downloaded on : Sat Oct 09 04:31:58 IST 2021 C/SCA/16692/2019 CAV JUDGMENT DATED: 08/10/2021 ORDER IN CIVIL APPLICATION NO. 1 of 2021 In view of the order passed in the main matter i.e. Special Civil Application No. 16692 of 2019, this application does not survive and stands disposed of accordingly.
(B.N. KARIA, J) BEENA SHAH Page 17 of 17 Downloaded on : Sat Oct 09 04:31:58 IST 2021