By way of present Appeal, the appellant has challenged the legality and validity of the judgment and order dated 31st December 1992 passed by the Joint District Judge, Surat, in Miscellaneous Civil (Probate) Application No.133 of 1981, whereby the learned Judge has granted Letters of Administration on the basis of a will made by one Premlataben wd/o. Kanchanlal Kapadiya, who died on 10th May 1979.
It is the case of the original applicants before the trial Court that Premalataben wd/o. Kanchanlal Kapadia died on 25th June 1979 at Surat and her death is registered in the municipal record on 26th June 1979. Premlataben had made her will in her sound state of health and mental condition and her last will was made on 10th May 1979 which was made voluntarily. It is the case of the respondents that she did not left behind her any movable property. She had left behind her an immovable property i.e. a bungalow, in Surat City as described in schedule 'A' to the Probate Application. That Premlataben was permanently residing at Surat and at the time of her death, she was residing at Ward No.5, House Nondh No.1203 of Haripura, Bhavanivad. When she made a will, she had not made any party as its executor. The respondents herein are her daughters and the appellant herein is her son. In view of above premises, it was prayed that the probate may be issued in favour of the respondents herein. The learned Judge vide impugned judgment and order allowed the said application by issuing Letters of Administration in favour of the respondent No.1-original application No.1. Hence, present appeal.
Mr.V.K.
Shah, learned counsel appearing for the appellant, has submitted that the learned Judge has erred in holding that the will at Exhibit 72 was legal and valid, on the basis of which the Letters of Administration is issued; that the learned Judge ought to have taken into consideration the written statement at Exhibit 12 filed by the appellant wherein it is specifically contended that the will was not legal and valid; that the learned Judge ought to have appreciated that the will has been executed on 10th May 1979 at Surat and on that day, the testator was at Mumbai, which has been corroborated by the documentary evidence on record; that the learned Judge has wrongly concluded that it is not necessary for the testator to sign the will in presence of witnesses; that the learned Judge has given much weightage to the deposition of the witness at Exhibit 71 and the diary at Exhibit 31; that the learned Judge has failed to appreciate that the testator of the will was not knowing English and some of the words in the will are written in English; that the learned Judge has erred in appreciating the provision of Section 63 of the Act. In support of his these submissions, Mr.Vyas has relied upon the decision of the High Court of Calcutta in the case of Ajoy Kumar Maiti v. Anil Kumar Maiti, reported in 2008 Law Suit (Cal) 544. In view of aforesaid, it is prayed to allow present appeal.
Mr.Unmed Shukla, learned Advocate for the respondents, has submitted that the learned Judge has passed the impugned judgment and order after taking into consideration the relevant aspects of the matter and appreciating the evidence on record. The learned Judge has also taking into consideration the depositions and cross-examinations of the relevant witnesses and come to the impugned conclusion, which is just and proper. Hence, present appeal may be dismissed.
Having considered the rival contentions raised by the learned advocates for the respective parties, averments made in the appeal and the documentary evidence produced on record as well as the impugned judgment and order, it transpires that the learned Judge has relied upon the evidence of witness Harivadan Champaklal Khatkawala, who has been examined vide Exhibit 71. This witness Harivandan Khatkawala has categorically stated that the deceased Premlataben had told him that she had written the will at Exhibit 72 on her own. It is also required to be noted that the learned Judge has rightly relied upon the evidence of this witness who has further stated that both the witnesses i.e. Harivandan Champaklal Khatkawala and Indrasenbhai, had signed in presence of the testator. This witness has in his cross-examination admitted that the testator Premlataben had signed the will at Exhibit 72 in his presence. It is also revealed from the evidence of this witness that the other witness Indrasenbhai, aged 75 years at the relevant point of time, was a heart patient and bedridden and, therefore, could not come to depose before learned Judge. Thus, from the evidence of this witness Harivadan Champaklal Khatkawala, it is crystal clear that the will at Exhibit 72 was written by Premlataben and it was signed by her before him at Surat. Thus, the learned Judge has rightly answered the point in this respect and the findings to that effect are just and proper.
So far as the contention of the appellant that the will was written at Bombay is concerned, the learned Judge has rightly placed reliance on the diary at Exhibit 31, which was being written by Premlataben, to maintain her account. In the said diary, as observed by the learned Judge, the account for 12th May 1979 has been written by her, which goes to show that she was at Surat on 12th May 1979 and the case of the appellant that she was being treated by Dr.Ramkrishna from 09th May 1979 to 11th May 1979 is not believed by the learned Judge on the ground that the said Dr.Ramkrishna is not an independent witness as the wife of the appellant had worked in the clinic of the said Dr.Ramkrishna for about four months. Thus, the learned Judge has rightly discarded the evidence of Dr.Ramkrishna in absence of case papers. Hence, the finding of the learned Judge that the testator was at Surat on 10th May 1979, is absolutely just and proper.
It is pertinent to note that the learned Judge has rightly observed on appreciation of evidence on record that the will was written in the handwritings of Premlataben and it bears her signature. The contents of the will also do not go to show that it is a forged one when it is well-explained in the will that since her son i.e. appellant herein, was well-to-do, she thought to give her properties in equal share to all her daughters i.e. respondents. Thus, the requisite requirements under Section 63 of the Indian Succession Act, 1925 have also been duly satisfied. It is also proved by the evidence of witness Harivandan at Exhibit 71 that the testator was having mental capacity at the time of execution of will, which was written down at her own free will and it was signed by her. Further, looking to the fact that no executor in the will has been named, the learned Judge has granted Letters of Administration as per Section 291 of the Indian Succession Act, 1925.
So far as the decision relied upon by Mr.Vyas in the case of Ajoy Kumar Maiti (supra) whereby it is inter alia held that the District Judge will have authority to decide the issue in question, is concerned, it is required to be noted that the facts of the above cited decision are materially different from the facts of the present case. Further, in the present case the powers are deleted to the Joint District Judge to deal with such case. Hence, it will not be appropriate to entertain present appeal as the same is devoid of any substance and merit.
In view of aforesaid, I am of the opinion that the view taken by the lower Court is just and proper. The lower Court has assigned cogent and convincing reasons for arriving at the conclusion. I do not find any illegality much less any perversity in the findings recorded by the lower Court. I am in complete agreement with the findings recorded by the lower Court. No case is made out to interfere with the findings recorded by the lower Court. Hence, present appeal deserves to be dismissed.
For the foregoing reasons, present appeal fails and is, accordingly, dismissed. No order as to costs.
(K.S.
Jhaveri, J) Aakar Top