1. Present Second Appeal under section 100 of thew Code of Civil Procedure has been preferred by the appellants herein – original plaintiffs challenging the impugned judgement and order passed by the learned appellate court in Regular Civil Appeal No. 122 of 2005 dtd.28/12/2011, by which the learned appellate court has dismissed the said appeal confirming the judgement and decree passed by the learned trial court in Special Civil Suit No. 190 of 1993 dismissing the suit instituted by the appellants herein.
2. That the appellants herein – original plaintiffs instituted Special Civil Suit No. 190 of 1993 in the court of learned Civil Judge (S.D.), Bhavnagar for partition of suit properties in question contending inter-alia that in the properties of maternal great grandfather of the plaintiffs, they have a share as per Hindu Succession Act. It was contended that the suit properties in question were owned by one Chhaganlal Meghjibhai Dabhi - maternal great grandfather of the plaintiffs and on his death, his two sons Kunvarjibhai and Dharamshibhai became owners and on their death, mother of the appellants - plaintiffs had share in the properties in question and therefore, the aforesaid suit was filed for partition of the properties. The suit was resisted by the defendants – maternal uncles of the plaintiffs by submitting that as such the grandfather of the plaintiffs executed the Will and the said Will came to be executed and implemented long back during the lifetime of the mother of the plaintiffs, who died in the year 1968. It was also submitted that the suit is barred by limitation. That the learned trial court framed the Issues at Ex.67. It is also required to be noted that in the suit the plaintiffs submitted an application for amendment permitting the plaintiffs to challenge the Will executed by the plaintiffs - Kunvarjibhai – Maternal grandfather of the plaintiffs, which came to be dismissed and the said order is not challenged by the plaintiffs and the same has attained finality. That thereafter, on appreciation of evidence, the learned trial court by the judgement and decree dtd.19/6/2000 dismissed the said suit on the ground of limitation as well as on the ground that the plaintiffs have failed to prove that they have share in the properties of Kunvarjibhai – maternal grandfather of the plaintiffs. That the learned trial court also held that the plaintiffs have failed to prove the Will alleged to have been executed by Kunvarjibhai – maternal grandfather of the plaintiffs is false and/or concocted. Being aggrieved by and dissatisfied with the judgement and decree passed by the learned trial court dismissing the suit, the appellants herein – original plaintiffs preferred First Appeal No.1155 of 2000 before this Court, however, in view of the amendment in the Act, the same came to be transferred to District Court, Bhavnagar which was registered as Regular Civil Appeal No.122 of 2005. That by the impugned judgement and order dtd.28/12/2011 the learned Additional District Judge, Bhavnagar has dismissed the said appeal confirming the judgement and decree passed by the learned trial court in dismissing the suit. That Being aggrieved by and dissatisfied with the judgement and order passed by both the courts below in dismissing the suit, the appellants herein – original plaintiffs have preferred the present Second Appeal under section 100 of the Code of Civil Procedure.
3. Mr.S.M. Shah, learned advocate appearing on behalf of the appellants has assailed the impugned judgement and orders passed by both the courts below mainly on the following grounds :-
(i) That the learned appellate court has not followed the procedure as required under Order 41 Rule 31 of the Code of Criminal Procedure and while deciding the appeal the learned appellate court has not framed the Points for determination.
(ii) Both the courts below have materially erred in shifting the burden to prove the Will upon the plaintiffs – appellants herein.
(iii) The Will alleged to have been executed by the grandfather of the plaintiffs – Kunvarjibhai is not proved.
(iv) Both the courts below have materially erred in holding that the suit was barred by limitation.
4. That the learned advocate appearing on behalf of the appellants – plaintiffs has heavily relied upon the decisions of the Hon'ble Supreme Court in the case of B.M. Narayana Gowda Versus Shanthamma (d) by Lrs. And Anr., reported in 2011 (2) GLH 432 as well as in the case of Santosh Hazari Versus Purushottam Tiwari (Deceased) By Lrs., reported in (2001) 3 SCC 179.
5. Mr.Shah, learned advocate appearing on behalf of the appellants has further submitted that the defendants relied upon the Will in their defence and hence the burden to prove the Will, will always be upon the defendants, who relied upon the Will in their defence and therefore, both the courts below have materially erred in shifting the burden to prove the Will upon the plaintiffs. It is further submitted by Mr.Shah, learned advocate appearing on behalf of the appellants – plaintiffs that even the Will is not proved by the defendants. He has submitted that to prove the Will, attesting witnesses were required to be examined. It is submitted that the defendants have not examined attesting witnesses to prove the Will and therefore, both the courts below have materially erred in dismissing the suit. Mr.Shah, learned advocate appearing on behalf of the appellants has further submitted that both the courts below have materially erred in holding that the suit was barred by limitation.
By making above submissions it is requested by Mr.Shah, learned advocate appearing on behalf of the appellants to admit and allow the present appeal.
6. Heard Mr.S.M. Shah, learned advocate appearing on behalf of the appellants herein – original plaintiffs and considered and gone through the judgement and orders passed by both the courts below.
7. At the outset, it is required to be noted that the appellants herein – original plaintiffs have instituted the suit before the learned trial court for partition of the properties owned by their maternal grandfather – Kunvarjibhai, which were belong to their maternal great grandfather – Chhaganlal Meghjibhai Dabhi. It is required to be noted that Chhaganlal Meghjibhai Dabhi – maternal great grandfather of the plaintiffs had two sons namely Kunvarjibhai and Dharamshibhai.
Kunvarjibhai died on 24/5/1962 and Dharamshibhai died on 24/9/1988. It appears from the pedigree that Kunvarjibhai – maternal grandfather of the plaintiffs had three sons and one daughter i.e. mother of the plaintiffs. That the mother of the plaintiffs died on 19/10/1968 and during her lifetime she had never claimed any share in the properties of Kunvarjibhai. That after a period of 31 years from the date of death of the Kunvarjibhai – maternal grandfather of the plaintiffs and after a period of 26 years from the date of death of their mother, who died on 19/10/1968, the plaintiffs have instituted the suit for partition claiming share in the properties of Kunvarjibhai i.e. maternal grandfather of the plaintiffs in the year 1993. It is also required to be noted that Kunvarjibhai executed the Will on 11/10/1951 produced at Ex.176 and the same was also executed after the death of the Kunvarjibhai and even the property was partitioned on the basis of the said Will by document dtd.11/7/1968 i.e. during the lifetime of the mother of the plaintiffs. Considering the facts and circumstances of the case when both the courts below have concurrently found that the suit was barred by limitation, it cannot be said that both the courts below have committed any error and/or illegality in holding so.
8. Now, so far as the contention on behalf of the appellants that both the courts below have materially erred in shifting the burden upon the plaintiffs to prove the Will is concerned, it is required to be noted that as such the Will is not challenged. It is to be noted that as such the plaintiffs submitted an application for amendment in the suit to challenge the Will dtd.11/10/1951, however, that application came to be dismissed and the said order has attained finality, as the said order is not challenged further. It is required to be noted that the defendants came out with a case that the Will was executed by Kunvarjibhai which came to be acted upon after his death and the properties were partitioned as per the partition agreement dtd. 11/7/1968, however, it was the case on behalf of the plaintiffs that at the relevant time when the Will was executed, Kunvarjibhai was not keeping good health and he was not in a mental capacity to execute the Will. Therefore, when the appellants – plaintiffs disputed the Will it was for them to prove the same. Under the circumstances, both the courts below have not committed any error and/or illegality in shifting the burden to prove the Will upon the plaintiffs. It is required to be noted that as such both the courts below have not shifted the burden upon the plaintiffs to prove the Will but both the courts below have shifted the burden upon the plaintiffs to prove that Kunvarjibhai was not in a position to execute the Will. Under the circumstances and more particularly when the Will is not challenged, it cannot be said that both the courts below have committed any error and/or illegality in dismissing the suit.
9. Now, so far as the submission on behalf of the appellants - plaintiffs that the learned appellate court has not followed the procedure as required under Order 41 Rule 31 of the Code of Civil Procedure inasmuch as Points for determination are not framed is concerned, it is required to be noted that as such the learned appellate court has considered all the points/issues in the appeal in detail and therefore, merely specific points for determination are not framed, the impugned judgement and order passed by the learned appellate court is not required to be quashed and set aside solely on that ground. What is required to be considered is whether the learned appellate court has applied its mind on all the issues raised in the appeal or not. Under the circumstances when the learned appellate court has considered all the points/issues in the appeal, on the aforesaid ground, the impugned judgement and order passed by the learned appellate court is not required to be quashed and set aside.
10. Now so far as the reliance placed upon the decision of the Hon'ble Supreme Court in the case of B.M. Narayana Godwa (supra) is concerned, on facts, the same shall not be applicable. It is required to be noted that in the said said case, it was the case of First Appeal and therefore, the scope and ambit of First Appeal cannot be equated with the scope and ambit of the present Second Appeal filed under section 100 of the Code of Civil Procedure.
11. Even the decision of the Hon'ble Supreme Court in the case of Santosh Hazari (supra), would not be applicable and/or would not be of any assistance to the appellants considering the facts and circumstances of the case.
12. In view of the above and for the reasons stated above, there is no substance in the present appeal and the same deserves to be dismissed and is accordingly dismissed.
In view of dismissal of the main Second Appeal, no order in the Civil Application for stay and the same is also consequently dismissed.
rafik [M.R. SHAH, J.]