1. This petition is preferred under Article 227 of the Constitution of India challenging the order of learned City Civil Judge dated 9th September 2011 in Execution petition No. 26/11 arising from Summary Civil Suit No. 360 of 2008.
2. The petitioner is the widow of Shailesh Atmaram Sheth who passed away on 8th October 1995. She lives in a flat owned by her husband who purchased it from self acquired income. The will of husband of the present petitioner dated 20th June 1997 in respect of his property was notarised and it is the say of the petitioner that on demise of her husband, she became exclusive owner of the property of her husband. Her name is also reflected in the record of Municipal Corporation, electricity company and even in the society. The share certificate was in the name of her husband dated 17th January 1975. Thereafter the certificate has been transferred in the name of the present petitioner.
3. A Summary Civil Suit No. 360/08 was preferred by the respondent herein for recovery of sum of Rs 2,50,000/ with 18% interest thereon from the son of the present petitioner Shri Devang Shailesh Sheth. It was averred in the suit that son of the petitioner was a Stamp Vendor and on taking the commission he was earning livelihood by selling non judicial and judicial stamp papers. The respondent is also working as a Stamp Vendor on commission basis and they both had shared good terms. One Mr. R.S Panchal had conducted the deal for the purchase of stamp papers. When denied by the respondent, the son of the present petitioner called up to request to hand over the stamp papers to Mr. Panchal. The stamps worth Rs 2,50,000/ were handed over to Shri R. S. Panchal for and on behalf of petitioner's son.
4. It is the allegation of the respondent that the son of petitioner also had a friend named Rakesh Modi with whom he had monetary transactions and under one or the other pretext the son of the present petitioner had asked him to deliver money to the present respondent. He was taken in a car and was found murdered on 27th July 2007. An FIR was lodged being 1st CR. No.101 of 2007. In the suit the respondent sought for decree of Rs 2,50,000/ with interest against the son of the petitioner and same was decreed by the Court.
5. When Execution Petition No. 26 of 2011 was filed an application was preferred being Exhibit 19 by the present petitioner to set aside the order of attachment by the trial court, after hearing both the sides the trial court rejected the application of present petitioner on dated 27th August 2010 and therefore challenge to such order.
6. Learned advocate Mr. Ashish Dagli has urged that no probate is necessary in the State of Gujarat and even without probate, rights acquired by the legatee of the will can be established. This has been held in the case of Minaxiben Shashikantbhai Patel Vs. Dist. Collector, Gandhinagar reported in 2007 (1) GLR 277. It is the say of the learned advocate for the petitioner that the petitioner is the mother of the judgment debtor and she has been given the rights by the statue and therefore, she cannot be deprived of the same. Relying on the judgment of Gandabhai Ranchhodji Gandhi Vs Noshir Ka Vasji Sabowala and Ors reported in AIR 1994 Gujarat 18 where the principle is reiterated to the effect that the possession of property cannot be demanded on ground of denial of title by tenant. The Apex Court in the case of Clarence Pais and Ors vs Union of India reported in AIR 2001 Supreme Court 1151 held that the requirement to produce probate or letters of administration for getting rights of executor or legatee is recognised. In this case question was whether there was differential treatment to the residence of separate geographical region as far as the requirement to produce probate or letter of administration for establishing right as an executor or legatee was concerned. The Apex Court held thus (para 6):
“The scope of Section 213(1) of the Act is that it prohibits recognition of rights as an executor or legatee under a will without production of a probate and sets down a rule of evidence and forms really a part of procedural requirement of the law of forum. Section 213(2) of the Act indicates that its applicability is limited to cases of persons mentioned therein. Certain aspects will have to be borne in mind to understand the exact scope of this section. The bar that is imposed by this section is only in respect of the establishment of the right as an executor or legatee and not in respect of the establishment of the right in any other capacity. The section does not prohibit the will being looked into for purposes other than those mentioned in the section. The bar to the establishment of the right is only for its establishment in a Court of justice and not its being referred to in other proceedings before administrative or other Tribunal. The section is a bar to everyone claiming under a will, whether as plaintiff or defendant, if no probate or Letters of Administration is granted. The effect of Section 213(2) of the Act is that the requirement of probate or other representation mentioned in subsection (1) for the purpose of establishing the right as an executor or legatee in a Court is made inapplicable in case of a will made by Muhammadans and in the case of wills coming under Section 57(c) of the Act. Section 57(c) of the Act applies to all wills and codicils made by any Hindu, Buddhist, Sikh or Jain, or or after the first day of January, 1927 which does not relate to immovable property situate within the territory formerly subject to the LieutenantGovernor of Bengal or within the local limits of the ordinary civil jurisdiction of the High Courts of Judicature at Madras and Bombay, or in respect of property within those territories. No probate is necessary in the case of wills by Muhammadans. Now by the Indian Succession (Amendment) Act, 1962, @pageSC1155 the section has been made applicable to wills made by Parsi dying after the commencement of the 1962 Act. A combined reading of Sections 213 and 57 of the Act would show that where the parties to the will are Hindus or the properties in dispute are not in territories falling under Section 57(a) and (b), subsection (2) of Section 213 of the Act applies and subsection (1) has no application. As a consequence, a probate will not be required to be obtained by a Hindu in respect of a will made outside those territories or regarding the immovable properties situate outside those territories. The result is that the contention put forth on behalf of the petitioners that Section 213(1) of the Act is applicable only to Christians and not to any other religion is not correct.”
7. This Court in case of Minaxiben Shashikantbhai Patel Vs Dist. Collector Gandhinagar (supra) has reiterated the ratio of Apex Court in Clarence Pais Vs. Union of India which reads thus :
“A combined reading of Ss. 213 and 57 of the Act would show that S. 213 (1) which contains the restriction prohibiting recognition of rights as an executor or legatee under a will without production of a probate, is applicable to Parsis after the amendment of the Act in 1962 and to Hindus who reside within the territories which on 191870 were subject to the Lt. Governor of Bengal or to areas covered by original jurisdiction of the High Courts of Bombay and Madras and to all wills made outside territories and limits so far as they relate to immovable property situate within those territories and limits. If that is so, it cannot be said that the section is exclusively applicable only to Christians and, therefore, it is discriminatory. The differences are not based on any religion but for historical reasons that in British Empire in India, probate was required to prove the right of a legatee or an executor but not in part "B" or "C" States. That position has continued even after the Constitution has come into force. Historical reasons may justify differential treatment of separate geographical regions provided it bears a reason and juust relation to the matter in respect of which differential treatment is accorded. Uniformity in law has to be achieved, but that is a long drawn process. Undoubtedly, the States and Union should be alive to this problem. Only on the basis that some differences arise in one or other States in regard to testamentary succession, the law does not become discriminatory so as to be invalid. Such differences are bound to arise in a federal set up.”
8. In the matter before learned Single Judge in case of Minaxiben Shashikantbhai Patel Vs, Dist. Collector Gandhinagar (supra) the property was situated at Gandhinagar and is outside the territories of the original Civil Jurisdiction of the High Court of Bombay and the property is even otherwise situated in the State of Gujarat, which is outside the original civil jurisdiction of the High Court of Bombay or Madras or Calcutta. Therefore, it has been held that even without probate, the rights acquired by the executor or legatee of the will can be established before the Court or before any other authority which in the present case is the revenue authority.
9. Admittedly as per the certificate of death of deceased Shaileshbhai Sheth passed away on 8th October 2005 and property was transferred in the name of petitioner Poornima by making change in the share certificate issued by the society. The mother of the judgment debtor insisted that she was the owner and therefore, her property cannot be attached. The Court denied any relief on the ground that there was no probate nor letter of administration granted of will of her husband and merely the share certificate or the tax bills or electricity bills would not create any title in her favour.
10. Learned advocate therefore, insisted in the light of well settled principle of law that when property is situated in the State of Gujarat and in Ahmedabad, neither probate nor letter of administration would be necessary for establishing the right of legatee. The Court therefore, has erroneously decided that the judgment debtor being the legal heir of the deceased Shailesh Sheth has an equal share in the property.
11. Learned advocate is right to contend that the probate or letter of administration is not necessary for the property which is situated in Ahmedabad and she can establish her rights pursuant to the will executed by deceased Shailesh Sheth. At the same time the Court cannot be oblivious of the facts that mere transfer of share certificate in the name of petitioner would not take away rights of other heirs in respect of suit property if there exists any. And as noted by the Courts below, the copy of the will of course is indicative of fact that the said flat has been given exclusively to the wife of the deceased who is the third party to the execution petition. The petitioner's husband passed away on 8th October 2005. The said will was executed on 20th June 1997.
12. It is apparent and not in challenge that the decreetal dues are of the son of the present petitioner and she is the third party to the litigation. Attachment is being sought on the residential premise bequeathed by the deceased husband on the wife of the present petitioner Poornima. There being no necessity to obtain probate as mentioned hereinabove, only on the ground that no probate has been obtained, her challenge has failed.
13. Admittedly the son of the present petitioner is involved in default against whom the decree is passed for a sum of Rs 2,52,000/ with 18% per cent annum and attempt of recovery is faced with herculean task to get the said amount recovered. However, that would not ipso facto entitle any party to recover the said amount without adjudicating the rights of the third party. The trial court has also noted that the judgment debtor Mr. Devang Sheth has right title and interest in the property as per the will which finding is bereft of facts and therefore, the order of attachment sought to be quashed requires interference.
14. Profitable would be the reproduction of Order 21 Rule 58 of Code of Civil Procedure which concerns adjudication of claims to, or objections to attachment of property
(1) Where any claim is preferred to, or any objection is made to the attachment of, any property attached in execution of a decree on the ground that such property is not liable to such attachment, the Court shall proceed to adjudicate upon the claim or objection in accordance with the provisions herein contained :
(a) Where, before the claim is preferred or objection is made, the property attached, has already been sold or
(b) Where the Court considers that the claim or objection was designedly or unnecessarily delayed.
(2) All questions arising between the parties to a proceeding or their representatives under this rule and relevant to the adjudication of the claim or objection, shall be determined by the Court dealing with the claim or objection and not by a separate suit.
(3) Upon the determination of the questions referred to in subrule (2), the Court shall, in accordance with such determination –
(a) allow the claim or objection and release the property from attachment either wholly or to such extent as it thinks fit; or
(b) disallow the claim or objection; or (c ) continue the attachment subject to any mortage, charge of other interest in favour of any person; or (d) pass such order as in the circumstances of the case it deems fit.
(4) Where any claim or objection has been adjudicated upon under this rule, the order made thereon shall have the same force and be subject to the same conditions as to appeal or otherwise as if it were a decree.
(5) Where a claim or an objection is preferred and the court, under the proviso to subrule(1), refuses to entertain it, the party against whom such order is made may institute a suit to establish the right which he claims to the property in dispute; but, subject to the result of such suit, if any, an order so refusing to entertain the claim or objection shall be conclusive.
15. The Executing Court disallowed the claim and continued the attachment and the order made thereon since has a force of a decree therefore, when the same is challenged before this Court, on having found jurisdictional error, in exercise of supervisory power for having considered the same disregarding the relevant case laws. The order requires interference.
16. Of Course, yet another alternative is available of filing suit, in the event of refusal to entertain objection against the attachment by the 3rd party under rule (1) but here objections are not entertained under Rule (2) and hence, no remedy is available and on having found material error in appreciating materials, on law and facts and therefore, this order impugned is quashed.
(Ms. Sonia Gokani,J.) mary//