The argument advanced by learned advocate Mr. Chitale on the question as to the nature of the proceeding namely Second Appeal No. 529 of 1999 is required to be accepted. The proceeding namely Second Appeal No. 529 of 1999 cannot be termed as a proceeding concerning grant of probate. The provisions of Section 222 and Section 226 of the said Act will be applicable to a proceeding where the Court is required to decide as to whether probate should be granted or not. The Second Appeal No. 529 of 1999 was filed so as to challenge that order passed by the learned District Judge by which the application for revocation of probate was granted. After the probate was granted in favour of Laxmanrao in respect of the Will executed by Mrs. Zende, Laxmanrao being the sole beneficiary, all the properties covered by the Will devolved on Laxmanrao and he secured interest in the properties as per the Will. Once it is observed that Laxmanrao secured right in respect of the properties covered by the Will dated 9th September, 1982 as a sole beneficiary, surely, heirs of Laxmanrao will have a right to prosecute the proceedings which were initiated by Laxmanrao to protect his interest in the properties. In my view, after the death of Laxmanrao, right to sue would survive and his heirs were rightly brought on record in Second Appeal No. 529 of 1999. The application filed by heirs of Laxmanrao was maintainable and grant of the same by the Registrar (Judicial-I) was legal and proper.
IN THE HIGH COURT OF BOMBAY
Civil Application No. 2091 of 2012 in Second Appeal No. 529 of 1999
Decided On: 08.10.2013
Smt. Radhabai Vithal Waikar
Vs.
Late Shri Laxmanrao Shankarrao Shinde through his LRs.(Sunita Laxmanrao Shinde and Ors.)
Vs.
Late Shri Laxmanrao Shankarrao Shinde through his LRs.(Sunita Laxmanrao Shinde and Ors.)
Hon'ble Judges/Coram:R.Y. Ganoo, J.
Citation:2013(6) MHLJ298
1. The prayers in this civil applications are as follows:
(a) Rule be granted.
(b) The Hon'ble High Court be pleased to quash and set aside the impugned order dated 1st March, 2006 passed by the Registrar (Judicial-I) allowing the CAS/356/2006.
(c) Be further pleased to pass appropriate order of abatement of proceedings of the proceedings of Second Appeal No. 539 of 1999.
(d) Be pleased to condone the delay of 5 years and 262 days in filing the present civil application and for costs.
(e) Costs of the present Civil Application and incidental expenses be provided for.
(f) Be further pleased to pass any other just and equitable orders and/or directions as may be necessary in the interest of justice and expedient in the facts and circumstance of the present case favouring the applicant.
Few facts which are required to be stated for the purpose of disposal of this civil application are as under.
2. One Mrs. Zende executed a Will on 9th September, 1982. One Mr. Laxmanrao S. Shinde was sole beneficiary under the said Will. He filed Misc. Application No. 640 of 1987 in the Court of Civil Judge, Senior Division, Pune for probate. This application was rejected by the learned Civil Judge, Senior Division, Pune by order dated 6th January, 1992. Said Laxmanrao was aggrieved by the said order and therefore, he filed Civil Appeal No. 558 of 1992 in the District Court at Pune. The learned 5th Additional District Judge by judgment and decree dated 20th January 1995 allowed the said civil appeal and granted probate in favour of Laxmanrao in regard to the Will executed by Smt. Zende on 9th September, 1982. Present applicant Mrs. Waikar and Mrs. Pawar were parties to the original Misc. Application No. 640 of 1987. On account of the grant of the Civil Application as aforesaid and the grant of probate, Mrs. Waikar and Mrs. Pawar were aggrieved. Mrs. Waikar filed Second Appeal No. 185 of 1995 in this Court challenging the judgment and order passed by the learned District Judge dated 20th January, 1995. That second appeal was dismissed on merits on 25th April, 1996. Mrs. Pawar had filed Second Appeal No. 333 of 1995. It was dismissed on 25th July 1996. These two orders passed in the aforesaid Second Appeals have been confirmed in the Supreme Court in as much as the proceedings filed against the second appeal have also been dismissed.
3. After the aforesaid proceedings, Mrs. Waikar i.e. the present applicant filed application in the Court of Joint Civil Judge, Senior Division, Pune being Application No. 19 of 1997 under Section 263 of the Indian Succession Act, 1925 (hereinafter referred to as the said Act) for revocation of the said probate. That application was dismissed by judgment and order dated 24th August, 1998. The Civil Appeal No. 725 of 1998 was filed by Mrs. Waikar in the District Court at Pune challenging the judgment and order dated 24th August, 1998. That Civil appeal was allowed by the learned 7th Additional District Judge, Pune by judgment and decree dated 4th October, 1999. Laxmanrao, who was the beneficiary under the Will felt aggrieved by the judgment and order dated 4th October, 1999 and he filed Second Appeal No. 529 of 1999 in this Court. Said Second Appeal has been admitted.
4. During the pendency of the second appeal, said Laxmanrao expired on 18th November, 2005. His heirs i.e. respondent nos. 2 to 7 and Mrs. Sunita L. Shinde since deceased filed Civil Application No. 356 of 2006 on 13th February, 2006 for bringing them on record as heirs of said Laxmanrao. Since the said application was filed within time, it came before the learned Registrar (Judicial-I) for decision. The learned Registrar (Judicial-I) entertained the said civil application. Learned Registrar (Judicial-I) on 1st March 2006 passed following order on the said application.
S.A. No. 529 of 1999
None present for the appellant. Perused the case. The application for bringing the heirs of Appellant no. 1 is on record. The objection to it is not received. Hence, the application is allowed. The legal heirs be brought on record. The necessary amendment be carried out within one week.
5. Looking to the prayers set out in the civil application, this civil application will have to be disposed of on two counts namely, (i) whether the delay of 5 years and 262 days in filing the present civil application can be condoned (ii) Whether the civil application can be granted on merits.
6. In the facts and circumstances of the case, it would be convenient to hear and dispose of the aforesaid civil application point-wise.
7. On behalf of the applicant i.e. Mrs. Waikar, her power of attorney namely Mr. Prakash A. Valame appeared in the present civil application. He had pointed out to the Court the averments in the civil application where the applicant claims that no notice of the grant of civil application was served upon the applicant and it is only after the going through the website of the High Court in October, 2012, the applicant came to know that heirs of Laxmanrao have been brought on record and according to the applicant, soon after coming to know about bringing heirs on record in October, 2012, the civil application came to be filed on 4th December, 2012. On behalf of the applicant, it was therefore contended that there is no intentional delay on the part of the present applicant and in the absence of a specific notice of grant of civil application, the delay which has occasioned is required to be condoned in the interest of justice and to enable the applicant to press her civil application on merits.
8. Learned advocate Mr. Chitale appearing on behalf of the respondent nos. 2 to 7 states that the present applicant has deleted respondent no. 1. Mrs. Sunita L. Shinde on account of her death. He admitted that the present respondent nos. 2 to 7 are heirs of Mrs. Sunita L. Shinde. It is clear that as respondent nos. 2 to 7 are already on record, there was no need to make a formal application on record to bring respondent nos. 2 to 7 as heirs of said Smt. Sunita L. Shinde. The respondent nos. 2 to 7 have also not seriously disputed the deletion of Smt. Sunita L. Shinde.
9. The present respondents have filed affidavit-in-reply through respondent no. 4 i.e. son of Laxmanrao. Learned advocate Mr. Chitale appearing on behalf of the respondent had relied upon following judgments:-
1. A.K. Hazra Vs. Rubi, MANU/SC/0738/1997 : AIR 1997 S.C. 2724
2. P.K. Ramchandran Vs. State of Kerla, MANU/SC/1296/1997 : AIR 1998, SC 2276
3. K.N. Srimal Vs. G.V. Gavane, MANU/MH/0865/2006 : 2007 (1) Mh. L.J. 807.
10. These judgments were cited to submit that the delay of 5 years and odd days is inordinate and the explanation given by the present applicant that she saw the order of granting civil application to bring heirs of Laxmanrao in October, 2012 on website and thereafter she filed the civil application in view of the said order should not be accepted. It was also contended by learned advocate Mr. Chitale that some other litigation is pending between the present applicant and the present respondents. He submitted that on account of the said litigation, the knowledge of bringing heirs of Laxmanrao on record of this second appeal will have to be imputed to the applicant. Learned advocate Mr. Chitale had drawn my attention to the averments in the affidavit-in-reply. It was pointed out that in the proceedings viz. L.P.A. 17 of 2007 filed in this Court concerning Special Civil Suit No. 514 of 1996, the present applicant and the present respondents were parties and that in the said proceedings, heirs of said Laxmanrao were brought on record in or about 2007. It was submitted that in the said proceedings, the applicant has not challenged bringing present respondents on record as heirs of Laxmanrao. In substance, it was sought to be argued by learned advocate Mr. Chitale that the present applicant has not disputed the fact that the present respondents are the heirs of said Laxmanrao.
Learned advocate Mr. Chitale further submitted that in the facts and circumstances of the case and on the basis of authorities cited by him, the delay should not be condoned and this application be rejected as being filed beyond the period of limitation.
11. I have considered the rival submissions on the question of condonation of delay. It is true that by order dated 1st March, 2006 heirs of said Laxmanrao were brought on record. The order directing that heirs of Laxmanrao should be brought on record has been implemented in as much as the amendment has been carried out to the second appeal. On the basis of record which was before this Court, it is clear that no material is placed before the Court to show that the order dated 1st March, 2006 was communicated to the present applicant who was a contesting respondent to the second appeal. It is to be noted that civil application to bring heirs of Laxmanrao was filed within time prescribed by the provisions of Indian Limitation Act, 1963 and, therefore, it was granted without notice to respondent i.e. present applicant. No fault can be found in disposal of the said civil application dated 1st March, 2006 without notice to the applicant.
12. Once it is noted that the fact of grant of civil application by order dated 1st March, 2006 was not intimated to the present applicant, the contention of the respondents that the knowledge as regards bringing heirs of Laxmanrao on record should be imputed to the applicant, cannot be accepted. In view of the above, explanation furnished by the applicant to condone the delay in filing this application will have to be accepted. The delay occasioned is not intentional. The applicant was not sleeping over her right or that despite knowing the fact that heirs of Laxmanrao are brought on record by a particular order, she did not take steps as regards order dated 1st March 2006. For the aforesaid reasons, the delay in filing this application is required to be condoned.
13. I now turn to the submissions advanced on merits of the present civil application. It was submitted on behalf of the applicant that copy of the civil application by which the heirs of Laxmanrao were sought to be brought on record was not served upon the present applicant and as such, the grant of the said application on 1st March 2006 is illegal. It was submitted that on this ground alone, the present civil application ought to be granted.
14. Learned advocate Mr. Chitale appearing on behalf of the respondents opposed the submission made on behalf of the applicant. It is the contended by the respondents that the application for bringing heirs of Laxmanrao on record was filed within the period of limitation and therefore as per Rule 8(iv)(b) of Chapter 17 of the Bombay High Court (Appellate Side) Rule, 1960, no notice of the intention to bring the heirs of a particular party who has since died was required to be given to the opposite party and the application had to be granted. It was submitted that on account of the aforesaid Rule, the Registrar (Judicial-I) did not give notice to the applicant i.e. respondent in second appeal and the civil application and granted the said application. Learned advocate Mr. Chitale submitted that the stand of the applicant that order dated 1st March 2006 is illegal for want of notice to the applicant should be rejected.
15. I have considered the rival submissions on the question of non service of copy of civil application for bringing heirs of Laxmanrao on record upon the present applicant. In this connection, the argument advanced by learned advocate Mr. Chitale based on the provisions of Rule 8(iv)(b) of Chapter 17 of the Bombay High Court (Appellate Side) Rules, 1960 is required to be accepted. The application for bringing heirs of Laxmanrao was brought on record was filed within 90 days from the date of death of said Laxmanrao. As such, the said application was filed within the period of limitation. Since it was filed within the period of limitation, the copy of the same was not required to be served upon the present applicant i.e. the respondents in the said civil application as per the provisions of Rule 8(iv)(b) of Chapter 17 of the Bombay High Court (Appellate Side) Rules, 1960. In view of the above, passing of the order dated 1st March 2006 was proper.
16. The applicant through her power of attorney submitted before this Court that the original proceeding instituted by Laxmanrao was for probate and ultimately the probate came to be granted to Laxmanrao by judgment and decree dated 20th January, 1995 and that those orders were confirmed by the Supreme Court. According to the present applicant, since the original proceeding was a probate proceeding, the subsequent proceeding namely, the second appeal which came to be filed by Laxmanrao will also have to be treated as something concerning with the probate. The applicant had taken pains to point out to the Court the provisions of the Indian Succession Act, 1925 (for short said Act) and had relied upon the provisions of Section 222 and Section 226 of the said Act to submit that in view of the provisions of Section 222 and Section 226 of the said Act, the application filed by the heirs of Laxmanrao to bring them on record in the Second Appeal No. 529 of 1999 was not maintainable and the same could not have been granted. In this connection, the constituted attorney of the present applicant took me through the provisions of Section 222 as well as Section 226 of the said Act. According to him, the provisions of Section 222 of the said Act indicate that the probate can be granted to an executor. It was also pointed out on behalf of the applicant that the provisions of Section 226 of the said Act indicate that in case of a death of an executor, representation would survive and the surviving executor can come on record. According to the present applicant, no executor was appointed by the testatrix. It was also submitted that on account of the death of said Laxmanrao, the right to challenge the impugned order dated 4th October, 1999 passed in the Civil Appeal No. 725 of 1998 came to an end. It was submitted that on account of Section 226 of said Act, after the death of Laxmanrao, heirs of Laxmanrao cannot come on record and prosecute the second appeal. It was also submitted on behalf of the applicant that to the facts of this case, provisions of Order 22 Rule 4A of the C.P.C. are not attracted and second appeal stood abeted on the death of Laxmanrao. The applicant had relied upon the judgment in the case of Thrity Sam Shroff Vs. Shiraz B. Anklesharia & Anr. dated 07.03.2007 passed in Appeal No. 83 of 2007 in Notice of Motion No. 117 of 2006 in Suit No. 35 of 1996 in Petition No. 84 of 1993 in support of the aforesaid submissions. He also relied upon the judgment in the case of Lalitkumar Sharma and Ors. Vs. General Public and Ors., dated 23.07.2009 in F.A.O. No. 5280 of 2002 (Punjab and Haryana High Court). It was pointed out that the judgment in the case of Thrity Sam Shroff Vs. Shiraz B. Anklesharia & Anr. (Surpa) was used to decide the case in the case of Lalitkumar Sharma and Ors. Vs. General Public and Ors. (Supra). On behalf of the applicant, the judgment in the case of Chiranjilal S. Goenka (deceased) through LRs. Vs. Jasjit Singh & Ors. Reported in MANU/SC/0496/1993 : 1993 S.C. Cases (2) 507 was cited. It was pointed out by the constituted attorney of the present applicant that while deciding the judgment in the case of Thrity Sam Shroff Vs. Shiraz B. Anklesharia & Anr. (Surpa) reliance was also placed on judgment in the case of Chiranjilal S. Goenka (Supra). On behalf of the applicant, it was therefore submitted that the order dated 1st Mach, 2006 should not have been granted and that the said order is required to be set aside as the proceedings namely the second appeal has abeted on account of the death of Laxmanrao.
17. The present applicant has raised a point in ground no. 18 of the civil application to challenge the impugned order. According to the applicant, on account of the death of Laxmanrao during the pendency of the second appeal, the right to prosecute the second appeal has abeted as there is no provision for bringing heirs on record. The text of the ground no. 18 is as under:-
18. The applicant further states that once it is clear that the proceeding does not survive on the death of last surviving executor, such proceeding is bound to abate. The question of entertaining any application for substitution in an abated proceeding cannot arise, till and until the abatement is set aside. The question of setting aside the abatement would arise only in a case where right to sue survives and sufficient case is made out by moving the Court to set aside the abatement and to bring the legal representatives on record. Once it is clear that in a probate proceeding, there is no right to sue which can survive, the question of setting aside of the abatement does not arise. Once the abatement cannot be set aside, it means, proceeding cannot be revived. Once a proceeding is dead, the question of entertaining any application therein does not arise. Hence, the contention about the substitution of the deceased executor and thereafter transforming the proceeding into a proceeding for Letters of administration does not arise.
By relying on aforesaid submission, it was submitted on behalf of the applicant that order dated 1st March 2006 could not have been passed. He prayed for making the civil application absolute.
18. Learned advocate Mr. Chitale appearing on behalf of the respondents submitted that since order dated 1st March 2006 is passed and as there is no challenge to it within limitation, it operates as res-judicata. In support of this proposition, judgment in the case of Amitabh Textile Mills Ltd. Delhi Vs. U.P. State Electricity Board, reported in MANU/UP/0005/1998 : AIR 1998 All. 62 was relied upon. According to the present respondents, the order dated 1st March 2006 would operate as a res-judicata and said order cannot be challenged. He submitted that this civil application be dismissed.
19. It was argued by learned advocate Mr. Chitale that in L.P.A. No. 17 of 2007 filed in this Court, heirs of Laxmanrao were brought on record and the present applicant in the said proceeding had not challenged the action of bringing on record present respondents as the heirs of Laxmanrao. According to learned advocate Mr. Chitale once there is no challenge as regards the status of respondents as heir of Laxmanrao, the present civil application ought to be rejected.
20. It was also contended by learned advocate Mr. Chitale that the present application is filed in order to harass the present respondents. It was also argued by learned advocate Mr. Chitale that the submissions advanced by the power of attorney of the applicant based on the provisions of Section 222 and Section 226 of the said Act are attracted, should not be accepted. He submitted that the provisions of Section 222 and Section 226 of the said Act relate to proceeding filed by an executor of a Will seeking probate. Learned advocate Mr. Chitale submitted that Section 226 of the said Act indicates that if an executor has applied for probate of a Will and he dies, heirs of such executor cannot be brought on record. He further submitted that in a case where there are more executors than one, then, in the event of death of one executor, other executor can be brought on record. Learned advocate Mr. Chitale pointed out that the probate came to be granted by judgment and order dated 20th January, 1995 in Civil Appeal No. 558 of 1992 and said judgment and decree dated 20th January, 1995 has been confirmed upto the Supreme Court. He, therefore, submitted that while the proceedings were pending up to the Supreme Court, said Laxmanrao was alive and the order granting probate has been confirmed during the lifetime of said Laxmanrao. He further submitted that Laxmanrao was alive till the institution of the Second Appeal and admission thereof and Laxmanrao died only on 18th November, 2005 i.e. during the pendency of the second appeal. Learned advocate Mr. Chitale further submitted that respondents have been brought on record in Second Appeal where the question to be decided by this Court is whether the order granting revocation of probate is correct or not. He submitted that provisions of Section 226 of the said Act are not at all applicable to the facts of this case and as such, the contention of the applicant based on Section 226 of the said Act is required to be rejected. Learned advocate Mr. Chitale pointed out that after the order of granting of probate was confirmed upto the Supreme Court, Mrs. Waikar i.e. the present applicant filed Application No. 19 of 1997 under Section 263 of the said Act for revocation of probate. He submitted that said application was dismissed however, the said application came to be allowed in terms of judgment and order dated 4th October, 1999 passed by the learned District Judge in Civil Appeal No. 725 of 1999. He further pointed out that the Second Appeal No. 529 of 1999 was filed by Laxmanrao during his lifetime so as to challenge the order dated 4th October, 1999 passed by the learned District Judge in Civil Application No. 725 of 1998 by which the probate granted was revoked. Learned advocate Mr. Chitale, therefore, submitted that Second Appeal No. 529 of 1999 which was pending before the Court pertains to the proceeding as regards revocation of the probate and not the grant of the probate. He submitted that once the probate has been granted, said Will came into operation. He submitted that as per the Will executed by Mrs. Zende, entire property owned by Mrs. Zende was bequeathed to said Laxmanrao. He submitted that Laxmanrao was the sole beneficiary under the Will and on account of grant of the probate, he became the owner of all the properties and, therefore, when the Second Appeal No. 529 of 1999 was pending before this Court, he was interested in seeing that the order by which revocation of probate is granted is set aside. He, therefore, submitted that the proceedings in the nature of Second Appeal No. 529 of 1999 cannot be equated to the proceedings which are contemplated by the provisions of Section 222 and Section 226 of the Act. According to learned advocate Mr. Chitale, the proceedings namely Second Appeal No. 529 of 1999 is not the one which would come within the ambit of Section 222 and Section 226 of the said Act. He, therefore, submitted that the challenge to the impugned order dated 1st March, 2006 cannot stand and that the Civil Application should be dismissed.
21. I have considered the rival submissions on the merits of the matter. The only point which needs to be considered is whether the Second Appeal No. 529 of 1999 would come within the ambit of Section 222 and Section 226 of the said Act and whether right to sue survives in a proceeding like present Second Appeal No. 529 of 1999.
22. The argument advanced by learned advocate Mr. Chitale on the question as to the nature of the proceeding namely Second Appeal No. 529 of 1999 is required to be accepted. The proceeding namely Second Appeal No. 529 of 1999 cannot be termed as a proceeding concerning grant of probate. The provisions of Section 222 and Section 226 of the said Act will be applicable to a proceeding where the Court is required to decide as to whether probate should be granted or not. The Second Appeal No. 529 of 1999 was filed so as to challenge that order passed by the learned District Judge by which the application for revocation of probate was granted. After the probate was granted in favour of Laxmanrao in respect of the Will executed by Mrs. Zende, Laxmanrao being the sole beneficiary, all the properties covered by the Will devolved on Laxmanrao and he secured interest in the properties as per the Will. Once it is observed that Laxmanrao secured right in respect of the properties covered by the Will dated 9th September, 1982 as a sole beneficiary, surely, heirs of Laxmanrao will have a right to prosecute the proceedings which were initiated by Laxmanrao to protect his interest in the properties. In my view, after the death of Laxmanrao, right to sue would survive and his heirs were rightly brought on record in Second Appeal No. 529 of 1999. The application filed by heirs of Laxmanrao was maintainable and grant of the same by the Registrar (Judicial-I) was legal and proper.
23. For the aforesaid reasons, the submission made on behalf of the applicant that the proceeding viz. Second Appeal No. 529 of 1999 got abetted on account of death of Laxmanrao, cannot be accepted. Similarly, argument that to the facts of this case, Section 222 and Section 226 of the said Act are attracted, cannot be accepted.
24. For the aforesaid reasons, I hold that order dated 1st March 2006 passed by the Registrar (Judicial-I) granting civil application to bring heirs of Laxmanrao on record was correctly passed and no interference is required in the impugned order dated 1st March 2006. The challenge put up by the present applicant to the said order is rejected. For the aforesaid reasons, heirs of Laxmanrao can prosecute Second Appeal No. 529 of 1999. Hence, following order is passed to dispose of the civil application.
ORDER
(i) The Civil Application is rejected. In the facts and circumstances of the case, there shall be no order as to costs.
(ii) After the aforesaid order is passed, learned advocate Mr. Chitale appearing on behalf of the appellants in the Second Appeal prayed that the second appeal be fixed for hearing on a particular date. The power of attorney of the present applicant, who is present in the Court said that he has no objection for taking up the second appeal at an early date.
(iii) In view of the above, looking to the year of the Second Appeal, the Second Appeal is fixed for hearing in the week commencing from 28th October, 2013.
No comments:
Post a Comment