1. The present second appeal u/s.100 of the Code of Civil Procedure has been preferred by the appellants herein - original opponents – appellants to quash and set aside the impugned order dated 18/08/2000 passed by learned Civil Judge (S.D.), Surendranagar in Civil Misc.Application No.53 of 1996, by which, learned Trial Court granted/ issued probate in favour of the respondent herein – original applicant. The appellants herein – original opponents have also prayed to quash and set aside the judgement and order dated 27/01/2012 passed by learned Appellate Court i.e. learned Additional District Judge, Surendranagar in Regular Civil Appeal No.9 of 2009, by which, learned Appellate Court has dismissed the said appeal preferred by the appellants herein- original opponents by confirming the judgement and decree passed by learned Trial Court granting probate in favour of the respondent herein – original applicant.
2. Facts leading to the present second appeal, in nutshell, are as under:
At the outset, it is required to be noted that respondent herein – original applicant is mother of the deceased and appellant No.1 herein is widow of deceased (who has now remarried) and appellant Nos.2 and 3 are son and daughter of the deceased and grand-son and grand- daughter of the respondent herein – original applicant. That the son of the respondent herein i.e. deceased Kiritkumar Jashwantlal Raval, who executed the Will dated 23/01/1991 bequeathing property mentioned in the said Will and the said Will executed by the said Kiritkumar Jashwantlal Raval also came to be registered. It appears that for some reasons, deceased thought it fit to bequeath the property in favour his mother only and not to bequeath the property in favour of his wife. It appears that the respondent herein – original applicant submitted application u/s.276 of the Indian Succession Act (hereinafter referred to as “the Act”) requesting to issue probate on the basis of the registered Will dated 23/01/1991 executed by his son i.e. Kiritkumar Jashwantlal Raval. It appears that a public notice was given in the local newspaper inviting objections, if any, and pursuant to which, appellant No.1 herein i.e. widow of the deceased Kiritkumar and daughter-in-law of respondent herein – original applicant submitted objections. However, after submitting the objections, she did not further participate in the proceedings though she engaged advocate. It appears that even learned advocate appearing on behalf of appellant No.1 did not remain present and contest the proceedings. Therefore, vide order dated 18/08/2000, learned Trial Court allowed the said application and directed to issue probate pursuant to the Will dated 23/01/1991 executed by Kiritkumar.
3. It appears that being aggrieved by and dissatisfied with the order dated 18/08/2000 passed by learned Trial Court issuing probate, the appellants herein – original opponents preferred First Appeal being First Appeal No.73 of 2001 before this Court. However, subsequently the same came to be transferred to the learned District Court, Surendranagar, which was numbered as Regular Civil Appeal No.9 of 2009 and by impugned judgement and order dated 27/01/2012 learned Appellate Court i.e. learned Additional District Judge, Surendranagar has dismissed the said appeal confirming the order passed by learned Trial Court granting probate in favour of respondent herein – mother of the deceased.
Being aggrieved by and dissatisfied with the judgment and orders passed by both the Courts below, the appellants herein – original opponents have preferred the present second appeal u/s.100 of the Code of Civil Procedure.
4. Mr.Bhargav Karia, learned advocate appearing on behalf of the appellants herein – original opponents has vehemently submitted that as there were already objections raised by appellant No.1 against granting of probate u/s.276 of the Act, only District Court could have granted probate. It is further submitted by Mr.Karia, learned advocate appearing on behalf of the appellants that even some of the properties, which were bequeathed by deceased under the Will did not belong to him and were belonging to his father – husband of the respondent herein and, therefore, deceased could not have bequeathed the said property and without holding any inquiry as required u/s.75 of the Act learned Trial Court has issued probate with respect to property, which according to the appellants was an ancestral property and could not have been bequeathed by the deceased. Therefore, it is submitted that there was non-compliance of section 75 of the Act. In support of his above submission, he has relied upon decision of the Hon'ble Supreme Court in the case of Vijyaben Vashram V/s. State of Gujarat and others reported in 1989(1) GLH 72.
4.1 Mr.Bhargav Karia, learned advocate appearing on behalf of the appellants herein – original opponents has further submitted that even there is non-compliance of section 281 of the Act. It is submitted that probate application submitted by the respondent herein was not verified by one of the attested witness and, therefore, there was non-compliance of the section 281 of the Act, which has vitiated the order passed by the learned Trial Court granting probate in favour of the respondent herein.
By making above submissions and relying upon above decision, it is requested to admit/allow the present second appeal.
5. The present second appeal is opposed by Mr.Dhaval Vyas, learned advocate appearing on behalf of the respondent herein – original applicant. It is submitted that as such there are concurrent findings of facts given by both the Courts below, which are not required to be interfered with by this Court in exercising power u/s.100 of the Code of Civil Procedure.
5.1 Now so far as contention on behalf of the appellants herein with respect to non-compliance of Sections 286 and 281 of the Act are concerned, it is submitted that no such contentions were ever raised either before learned Trial Court or before learned Appellate Court and, therefore, the same may not be permitted to be taken in the present second appeal. It is submitted that even otherwise, appellant No.1 after submitting objections did not contest the application any further. It is further submitted that even the subsequent event that appellant No.1 has remarried is also required to be considered.
5.2 Now so far as contention on behalf of the appellants herein that some of the properties, which have been bequeathed by the deceased could not have been bequeathed by the deceased as the same were not belonging to him and the same were belonging to his father and as the same is ancestral property, the same could not have been bequeathed by the deceased is concerned and no inquiry has been held by learned Appellate Court on the aforesaid ground as required u/s.75 of the Act is concerned, it is submitted that all these questions are not required to be considered by learned Probate Court. It is further submitted that as such no suit has been filed by the appellants herein either for declaration and/or making a grievance that the properties, which have been bequeathed by the deceased, could not have been bequeathed by the deceased.
5.3 Mr.Dhaval Vyas, learned advocate appearing on behalf of the respondent herein – original applicant has relied upon the decisions of the Hon'ble Supreme Court in the case of Ishwardeo Narain Singh V/s. Smt.Kamta Devi and others reported in AIR 1954 SC 280; in the case of Gurdev Kaur & Ors. V/s. Kaki & Ors. reported in AIR 2006 SC 1975 as well as in the case of Krishna Kumar Birla V/s. Rajendra Singh Lodha & Ors. reported in 2008 AIR SCW 2557.
By making above submissions and relying upon above decisions, it is requested to dismiss the present second appeal.
6. Heard learned advocates appearing on behalf of the respective parties at length and considered the impugned judgement and orders passed by both the Courts below.
7. At the outset, it is required to be noted that considering the relationship between the parties and considering the fact that even appellant No.1 had remarried and relation between appellant Nos.2 and 3 and respondent herein is grand-son and grand-daughter, this Court tried its best to see that the dispute is amicably settled and there is cordial relation between the appellant Nos.2 and 3 and the respondent herein but unfortunately all the efforts have failed. It is required to be noted that this Court has tried to settle the dispute considering the age of the respondent herein, who is aged approximately 80 years. However, all the efforts have failed and, therefore, this Court is required to consider the present second appeal on merits.
8. That respondent herein – original applicant submitted the application for probate of the Will executed by his son dated 23/01/1991, which was registered Will. Pursuant to the public notice, appellant No.1, who has subsequently remarried submitted objections and also engaged an advocate. However, probate application was not further contested and learned advocate appearing on behalf of appellant No.1 also did not remain present. Therefore, considering the scope of section 276 of the Indian Succession Act and considering jurisdiction of the probate court, learned Trial Court granted probate in favour of respondent herein – original applicant, which has been confirmed by the learned Appellate Court.
The impugned judgement and orders passed by both the Courts below are sought to be quashed on the ground of non-compliance of the section 281 of the Act and also by submitting that some of the properties could not have been bequeathed by the deceased as they were ancestral properties and learned Trial Court was required to hold necessary inquiry u/s.75 of the Act. The impugned order passed by learned Trial Court is assailed mainly on the ground that when the objections were raised, as per section 281 of the Act only District Court could have granted probate.
9. Now so far as contention on behalf of the appellants herein that non-compliance of sections 286 and 281 of the Indian Successions Act is concerned, it is required to be noted that no such contention was raised either before learned Trial Court or before learned Appellate Court. No such contention is reflected in the appeal memo. However, it is case on behalf of the appellants that in the written statement before learned Appellate Court, contention of non-compliance of section 281 of the Act was raised. It does not appear from the judgement and order that the said question was argued before learned Appellate Court. In the present appeal, it is not the case on behalf of the appellants that the said contention was argued and learned Appellate Court has not considered. Under the circumstances, the appellants cannot be permitted to raise the questions, which were not raised/argued before learned Trial Court/ Appellate Court and for the first time, the said contention is raised in the present second appeal.
10. Now so far as contention on behalf of the appellants with respect to not holding any inquiry as required under section 75 of the Act with respect to the properties, which have been bequeathed under the Will by the deceased is concerned, considering the aforesaid decisions relied upon by Mr.Dhaval Vyas, learned advocate appearing on behalf of the respondent, learned Probate Court has no jurisdiction to decide the question with respect to right, title and interest of any other persons. As observed and held by Hon'ble Supreme Court the jurisdiction of the probate Court is to decide the genuineness of the Will only. Even in the case of Gurudev (supra), the Hon'ble Supreme Court has held that probate court's role is limited to examining the whether the instrument propounded as the last Will of the deceased is or is not that by the testator and whether it is the product of the free and sound disposing mind. It is only for the purpose of examining the authenticity or otherwise of the instrument propounded as the last Will, the Court looks into the nature of bequeathed. It is observed that the contents of the Will have to be appreciated in the contest of circumstances and not vis-a-vis the rules for intestate succession.
Even considering section 75 of the Indian Succession Act, while considering the application for probate, Court is required to hold inquiry only for the purpose of question of determination of the property is denoted by the words used in the Will and, therefore, where the properties, which were bequeathed by the deceased could have been bequeathed by the deceased cannot be the subject matter of inquiry as provided under section 75 of the Act. Under the circumstances, on the aforesaid ground the order passed by both the Courts below are not required to be interfered with by this Court in exercise of power u/s.100 of the CPC.
11. In view of the above and for the reasons stated hereinabove, the present second appeal fails and the same deserves to be dismissed and is accordingly dismissed.
In view of the dismissal of the main second appeal, Civil Application No.3696 of 2012 also deserves to be dismissed and is accordingly dismissed. No costs.
*dipti [M.R.SHAH,J]