Thursday, 28 July 2016

When petition for probate should be converted in to civil suit?

This   appeal   has   been   filed   under   Section   299   of   the   Indian
Succession Act, 1925 (for short, the said Act) challenging the order dated
27.07.2015 passed by the learned Joint Civil Judge, Senior Division, Nagpur
in Probate Petition No. 6 of 2012 thereby dismissing the proceedings for
issuance of probate and granting liberty to the appellant to have the claim
adjudicated before the competent Civil Court.  
The trial Court relied upon the provisions of Section 213 read
with   Section   57(c)   of   the   said   Act   while   dismissing   the   proceedings.
Considering the observations of the Hon'ble Supreme Court in Balgir Singh
Wasu (supra) in the facts of the present case if the present proceedings are
permitted to be converted into a civil suit for adjudication as the same have
become contentious, such course would serve the ends of justice.  The point
as framed is answered by holding that the trial Court ought to have itself
converted the proceedings into a civil suit for being tried on merits instead of
dismissing the same.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH
NAGPUR.
FIRST   APPEAL     NO.   1118     OF     2015
Nitesh Shashikant Khobragade,

VERSUS
 Anil Marotrao Khobragade,

CORAM:     A. S. CHANDURKAR  J.
                           
  Dated    :   APRIL  07, 2016.
Citation:2016 (3) ALLMR821


In view of notice for final disposal issued on 04.01.2016 the
learned counsel for the parties have been heard at length.  
2] Admit.  Taken up for final disposal with consent of parties.  

3] This   appeal   has   been   filed   under   Section   299   of   the   Indian
Succession Act, 1925 (for short, the said Act) challenging the order dated
27.07.2015 passed by the learned Joint Civil Judge, Senior Division, Nagpur
in Probate Petition No. 6 of 2012 thereby dismissing the proceedings for
issuance of probate and granting liberty to the appellant to have the claim
adjudicated before the competent Civil Court.  
4] Facts in brief are that the appellant claims entitlement to a plot of
land alongwith property constructed thereon  on the basis of will executed by
Smt   Manoramabai   Khobragade   and   Shri   Marotrao   Khobragade   on
24.09.2003.  According to the appellant he had been named as executor in
the said will.  The appellant therefore filed a petition under Section 276 of
the said Act for grant of probate.  
The respondents herein were duly served.  They filed their reply
to the aforesaid proceedings.  The respondent no.1 pleaded that the appellant
had   no   right   whatsoever   under   the   said   will   and   thus   disputed   his
entitlement.  The respondent no. 2 however also claimed entitlement on the
basis of will dated 24.09.2003. 
5] The   appellant   thereafter   led   his   evidence   in   the   probate
proceedings.   On 08.10.2013 as the respondent no.1 and his counsel were
absent the right to cross­examine the appellant was forfeited.  Thereafter on
18.09.2014 the respondent no.1 and his counsel was absent and hence the
side of the respondent no.1 was closed.  On 15.11.2014 the respondent no.1
filed an application below Ex. 66 for permission to lead evidence.  He also

filed an application below Ex. 67 in which a prayer for dismissal of the
proceedings was made.  In the said application it was stated that in view of
the provisions of Section 213 of the said Act, the  proceedings itself were not
competent and that the requirements of Section 57 of the said Act were not
satisfied.  It was then stated that as the proceedings were being contested,
the same ought to have been converted into a suit.   
6] The aforesaid application was opposed by the appellant by filing
reply at Ex. 69.  Reference was made to the provisions of Section 28­A(1) of
the Bombay Civil Courts Act, 1869 with regard to the manner in which
contentious proceedings were required to be decided.       It was also stated
that the appellant had examined himself and one witness and had closed his
side.  The respondent no.2 had thereafter filed his evidence on affidavit and
at that stage the respondent no.1 had filed the application for dismissal of the
proceedings.  It was therefore stated that the proceedings ought to be treated
as contentious proceedings and decided on merits.  
By the impugned order dated 27.07.2015 the learned Judge of
the trial Court held that in view of the provisions of Section 213 read with
Section 57(c) of the said Act it was not necessary to obtain  probate of the
will.     The   application   below   Ex.   67   was   therefore   allowed   and   the
proceedings came to be dismissed after granting liberty to the appellant to
file   appropriate   proceedings   for   adjudication   of   his   claim   before   the
competent civil Court. 
7]         Shri C. F. Bhagwani, the learned counsel for the appellant submitted

that the trial Court was not justified in dismissing the proceedings for grant
of probate.  He submitted that as the prayer for grant of probate was being
contested by the respondent no. 1, the procedure as prescribed by Section
295 of the said Act was required to be followed.  He submitted that in fact
the appellant had led his evidence in support of the prayer for grant of
probate and after the side of the respondent no.1 was closed, the application
for dismissal of the proceedings was filed.  It was then submitted that even if
it was not necessary for executor to establish his  right under Section 213 of
the said Act, once the proceedings for grant of probate had been filed and the
same became contentious the proceedings were required to be decided by
following the procedure prescribed by Section 295 of the said Act.   The
learned counsel placed reliance upon the judgment of the Division Bench in
Gajanan Chandrarao Sawant   Vs.   Mrs. Chandrabhaga Chandrarao Sawant
and others 2001(1) Civil LJ 332 and the judgment of learned Single Judge of
the Gujrat High Court in  Chandravadan Manubhai alias Manwantrai Mehta
Vs.  Nalini Navin Bhagwati and others AIR 1996 Gujarat 123.  He therefore
submitted   that   the   present   proceedings   itself   can   be   permitted   to   be
converted into civil suit for being tried by the competent Court.  
8]                Shri M. R. Joharapurkar, the learned counsel for the respondent
no.1 on the other hand supported the impugned order.  He submitted that as
the   proceedings   for   grant   of   probate   were   not   maintainable   in   view   of
provisions of Section 213 read with Section 57 of the said Act, there was no
question of converting the proceedings for being tried as a suit.  He  referred

to the provisions of Section 264(2) of the said Act and submitted that no
Notification had been issued by the State Government conferring jurisdiction
on the District Judge to grant or revoke probate in Nagpur district.  It was
submitted that as the proceedings itself were not maintainable there was no
question of seeking its conversion for being tried as a civil suit.  In support of
his submissions the learned counsel placed reliance upon the judgments in
Vishnu Ramchandra Undage   Vs.   Ganapati Ramchandra Undage & others
2005(4) Maharashtra Law Journal 1108 and Madhukar Rajanna Darbhe  Vs.
Union of India and others  2008(2) Bom. C. R. 418.  He therefore submitted
that the proceedings were rightly dismissed by the trial Court.  
9]  Shri Manke, the learned counsel appearing for respondent no.2
however supported the submissions made on behalf of the appellant.  Relying
upon the judgment of the Hon'ble Supreme Court in the case of Balbir Singh
Wasu  Vs.  Lakhbir Singh and others (2005) 12 Supreme Court Cases 503, it
was submitted that considering the observations made in para 5 of the said
judgment it was open for the Court to entertain an application for grant of
probate even if the matter was not covered by Section 213 of the said Act.  
9] I have given due consideration to the respective submissions and
I have also gone through the records of the case.  The point that arises for
determination is: 
Whether   the   trial   Court   instead   of   dismissing   the
proceedings   ought   to   have   converted   the   same   for
being tried as a civil suit? 
10] The facts on record indicate that the appellant is seeking probate

with regard to the will executed on 24.09.2003 in which the appellant has
been shown as an executor.   In these proceedings the respondent no.1 by
filing reply has opposed the prayer for grant of probate.   In view of such
opposition,   the   proceedings   have   become   contentious   in   view   of   the
provisions of Section 295 of the said Act.  The question however is on such
proceedings becoming contentious whether the same deserve to be dismissed
by relying upon the provisions of Section 213 read with Section 57(b) of the
said Act.  
11] In  Balbir   Singh   Wasu  (supra)   probate   proceedings   were   filed
before the Court which had no jurisdiction to entertain the same.   In that
context while considering the provisions of Section 213 of the said Act and
the   situation   where   probate   proceedings   have   been   filed   at   a   place   not
covered by Section 213 of the said Act, in para 5 of the said judgment it was
observed thus:       
“5. The appellant's counsel then contended that Section
213 of the Succession Act which requires an executor
to obtain probate before establishing his claim under
the   Will   was   not   applicable   outside   the   Presidency
Towns of Calcutta, Madras and Bombay.  Assuming this
to   be   correct,   we   do   not   read   Section   213   as
prohibiting the executor from applying for probate as a
matter  of prudence  or  convenience  to the  courts  in
other parts of the country not covered by Section 213.
Those   courts   are   competent   to   entertain   such
applications if made.” 
The aforesaid observations indicate that the proceedings for grant of probate
were permitted to be continued despite the same having been filed in a Court
which was not covered by Section 213 of the said Act.  Thus if the probate is

sought  as  a matter  of prudence  in  a  Court  that  is   not  covered  by  the
provisions of Section 213 of the said Act, such Court would be competent to
entertain   the   application   for   probate.     In   the   present   case,   though   the
provisions of Section 213 of the said Act would not apply to seek grant of
probate, the proceedings would have to be entertained on merits.
12] Admittedly, the appellant had already led his evidence in support
of the application as made.  Though the right of the respondent no.1 to lead
evidence was forfeited, an application for setting aside said order was also
moved   by   the   respondent   no.1.     In   these   facts   therefore   if   the   present
proceedings are permitted to be converted into a suit as the same have
become   contentious,   the   same   would   result   in   avoiding   multiplicity   of
proceedings.  Similar course was followed in the case of Chandravadan Mehta
(supra) by the Gujarat High Court.  Similarly, the Division Bench in Gajanan
Chandrarao  (supra) permitted the proceedings to be tried as a suit after
noticing the contest between the parties.  
13] The  judgment   of  learned   Single  Judge   in   the   case  of  Vishnu
Ramchandra   Undage  (supra)   relied   upon   by   the   learned   counsel   for
respondent no.1 refers to the proceedings for probate being filed in a city not
covered by Section 213 of the said Act.  It was held that the executing Court
was not correct in holding that the will in question required probate. Said
decision is on the aspect of requirement of obtaining probate which issue
does not arise in the present case.   Similarly, the decision in  Madhukar
Rajanna Darbhe (supra) considers challenge to the validity of the provisions


of   Section   57   of   the   said   Act.   Said   provision   has   been   held   to   be
constitutionally valid.   This decision also does not assist the case of the
respondent   No.1.     Considering   the   observations   of   the   Hon'ble   Supreme
Court in Balbir Singh Wasu (supra) as a matter of prudence if a party applies
for grant of probate even in a Court not covered by Section 213 of the said
Act, such proceedings can be entertained.
14] The trial Court relied upon the provisions of Section 213 read
with   Section   57(c)   of   the   said   Act   while   dismissing   the   proceedings.
Considering the observations of the Hon'ble Supreme Court in Balgir Singh
Wasu (supra) in the facts of the present case if the present proceedings are
permitted to be converted into a civil suit for adjudication as the same have
become contentious, such course would serve the ends of justice.  The point
as framed is answered by holding that the trial Court ought to have itself
converted the proceedings into a civil suit for being tried on merits instead of
dismissing the same.
15] Accordingly following order is passed: 
1] The order dated 27.07.2015 passed below Ex. 67 and the
consequential order passed below Ex. 1 is quashed and set aside. 
2]   The probate proceedings are restored on the file of the trial
Court.   The trial Court shall pass appropriate order in terms of Section 295
of the said Act for treating the proceedings as contentious.  The proceedings
shall   be   decided   on   their   own   merits   without   being   influenced   by   any
observations   in   this   order.     It   would   be   open   for   the   parties   to   raise

appropriate defences in accordance with law.  The record  of the proceedings
be sent to the trial Court forthwith.   
3] The First Appeal is allowed in aforesaid terms with no order as
to costs.   
JUDGE

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