Nina Anwar Merchant vs Karim Ul Haq Meghani And 17 Ors And Hdfc ... on 27 June, 2022
This judgment was
followed by a learned Single Judge of our Court in Raichand
Dhanji v. Jivraj Bhavanji, AIR 1932 Bombay 13.
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Raichand Dhanji vs Jivraj Bhavanji on 3 December, 1930
Sheonath Singh vs Madanlal And Anr. on 12 December, 1958
9. That the rule contained in S, 213 of the Indian Act is a rule of procedure becomes all the more obvious when we look at it from another angle. There is a strong current of authority for the proposition that the provisions of Section 213 are sufficiently complied with where a person may not have obtained the probate before the commencement of the suit but he obtains it before the passing of the decree in that suit. Thus it was held in Raichand v. Jivraj, AIR 1932 Bom 13 that the grant of probate of a will is not a condition precedent to the institution of a suit by a person claiming as a legatee, and the executor or the legatee may institute a suit without obtaining probate, but he will not be allowed to establish his right or in other words entitled to a decree unless probate is granted to him before the passing of the decree.
Kamalakant Gopalji vs Madhavji Vaghji on 26 November, 1934
2. The suit was filed on 9th September 1932, and on the face of it the claim is time-barred. Plaintiff however relies on the absence of the defendant from British India in 1932 to save the bar of limitation. Defendant also contends that the plaintiff cannot maintain this suit on the promissory notes as a surviving coparcener, assuming that he was one, as the promissory notes are payable to Gopalji Ramji or order. The plaintiff, it was contended, is not a holder who can give a valid and proper discharge to the defendant. In his written statement the defendant alleges that he is not aware that plaintiff is the only son and heir or legal representative of his-father, and that even if he is, he cannot' file this suit without obtaining representation to his father's estate. There was however nothing to prevent the plaintiff from filing the suit as the sole heir of his father if he was so minded, and all that has been held in Raichand v. Jivraj 33 Bom. L.R. 1372 is that the Court cannot pass a decree-until he had obtained such representation. That question however does not now arise, as the plaintiff claims the two amounts of the promissory notes as the solo surviving coparcener.
Arumugam Chelliah Paul (Since Deceased ... vs Life Insurance Corporation Of India on 30 November, 1989
8. Mr. Pagnis then cited the case of Raichand Dhanji v. Jivraj Bhavanji . This is for the purpose of showing that the practice followed in the Bombay High Court according to which the Court used to pass a decree in a suit by an executor or legatee with a direction that the decree be not sealed until probate was granted or representation was taken out, is not correct. In my view, this has no application as far as the question involved in this suit.
Armugam Chelliah Paul And Others vs Life Insurance Corporation Of India on 30 November, 1989
Mr. Pagins then cited the case of Raichand Dhanji v. Jivraj Bhavanji [1930] 33 Bom LR 1372. This is for the purpose of showing that the practice followed in the Bombay High Court according to which the court used to pass a decree in a suit by an exactor or legatee with a direction that the decree is not to be executed untill probate was granted or representation was taken out,is not correct. In my view, this has no application as far as the question involved in this suit is concerned.
Ramniklal Amritlal Shah vs Bhupendra Impex Pvt. Ltd. & Ors. on 13 December, 2000
This judgment was followed by a learned Single Judge of our Courts in Raichand Dhanji v. Jivraj Bhavanji and others.. The learned Single Judge of this Court following the judgment of the Privy Council in Meyappa Chetty v. Supramanian Chetty,; Chandra Kishore Roy v. Prasanna Kumari, and the judgment of this Court in Jamsetji Nassarwanji v. Hirjibhat Naoroji, took the view that the personal property of the testator including all rights of action vests in the executors after the testator's death and that he could institute a suit without obtaining probate, but that he could not obtain a decree in the suit before the grant of probate.
Mahesh Govindji Trivedi vs Legal Heirs Of Bhagvanji on 5 December, 2013
In view of the above, the
view of the learned Single Judge in Raichand Dhanji v. Jivraj
Bhavanji & Ors, AIR 1932 Bombay 13, cannot be of much
assistance to the respondent. Emphasis was placed on the following
holding;-
G. Chaya Padmini vs $ Mutta Lakshmi Narasamma And 3 Others on 10 April, 2026
it was
held that where the Court considered that a certificate was necessary, it
was enough to produce the certificate before the decree--(see also Raichand
Dhanji v. Jivraj Bhavanji [(1930) 56 Bom. 65.]
Radha Mohan vs Mrs. Jane Hilt And Anr. on 15 March, 1945
3. Mr. Mukhtar Ahmad has referred us to various eases of the Bombay and 6ther High Courts, in none of which, however, has it been held that a decree granted by a Court in disregard of the provisions of Section 214, Succession Act, is a nullity; for example, in Raichand Dhanji v. Jivraj Bhavanji ('32) 19 A.I.R. 1932 Bom. 13 it was held that under Section 213, Succession Act, the grant of probate of a will is not a condition precedent to the institution of a suit for claiming a right as executor or legatee under the will. A legatee or executor can file a suit without obtaining probate, but he will not be entitled to a decree unless probate has been granted to him before the passing of the decree. That really amounts only to re-stating the provisions of Section 214. Other cases referred to us also seem to us to do little more than re-state the provisions either of Section 213 or of S.214, and for ourselves, we find it impossible to see how a decree obtained in the manner in which this decree has been obtained can be a nullity. No doubt the decree might have been set aside in appeal and it is just possible that a suit might have been instituted to set it aside, but that is quite a different thing from saying that the decree in such a suit is a nullity. The decree is analogous to one which is based on a wrong view of the law. No one would, we think, venture to suggest that a decree which was given on the basis of a time-barred debt was a nullity, though such a decree could certainly be set aside in appeal and it is quite clear to us that an objection of that kind could not be entertained by an executing Court.
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