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2011 Supreme(Bom) 1042
2011 (6) ALLMR 765
In the High Court of Bombay at Aurangabad
S.S. SHINDE
Jawahar Premraj Mutha
Versus
Ramesh Premraj Mutha & Others
CIVIL REVISION APPLICATION NO. 38 OF 2009
Decided On : 02-09-2011
For the Applicant:S.D. Kulkarni, Advocate.
For the Respondents:R2, R13 to R18, N.K. Kakade, R10 & R11, R.R. Mantri, Advocates.
Headnote:Succession Act, 1925 - Sections 276 and 372-Civil Procedure Code, 1908, Section 10-Succes-sion with trial-Issuance of-Challenged-Application for probate filed by applicant earlier was dismissed in default-Retraction of not sought by applicant-Applicant filed fresh probate application after 4 years-Clubbing of proceedings not possible-Order, issuing succession certificate warrants no interference.-In the present case, the revision applicant has yet to obtain the probate certificate. He himself is guilty for latches in not getting the said proceedings decided. He did not take steps to restore the earlier probate application which was filed in the year 1994, which came to be dismissed in default in the year 2002. At the cost of the repetition, it has to be observed in the facts of this case that, the prayer of the applicant to club both the proceedings together is rightly rejected by both the Courts. The judgment and decree passed by the trial Court which is confirmed by the appellate Court is perfectly sustainable in law. The trial Court has rightly adjudicated and decided the application filed by the respondents for issuance of succession certificate and directions are given not only to issue succession certificate in favour of the respondents herein but also to the revision applicant.
Civil Procedure Code, 1908 - Section 10 - Succession Act, 1925, Sections 276 and 372 - Clubbing of proceedings - Where earlier probate application, filed by applicant herein in year 1994 was dismissed in default in year 2002 therefore application filed by respondent for getting succession certificate will have be considered previously instituted suit.
That apart, the application filed by respondent Nos. 1 to 5 for getting succession certificate will have to be considered previously instituted suit since the earlier probate application which was filed by the applicant herein in the year 1994 came to be dismissed in default on 27.8.2012. According to the applicant, the application which is filed in the year 2006 is a fresh application for probate r and not an application for restoration of the earlier probate application, which was dismissed in default.
Succession Act, 1925 - Sections 276 and 372 - CPC, Section 10 - Succession certificate. - Since earlier probate application filed by applicant, herein in year 1994 was dismissed in default in year 2002 hence fresh probate application filed by applicant in year 2006 being not maintainable liable to be rejected.
The object of Section 10 is to prevent the Courts of concurrent jurisdiction from simultaneously trying two parallel suits in respect of the same matter in issue. The section enacts merely a rule of procedure and a decree passed in contravention thereof is not a nullity. It is not for a litigant to dictate to the Court as to how the proceedings should be conducted, it is for the Court to decide what will be the best course to be adopted for expeditious disposal of the case. In a given case the stay of proceedings of later suit may be necessary in order to avoid multiplicity of proceedings and harassment of parties. However, where subsequently instituted suit can be decided on purely legal points without taking evidence, it is always open to the Court to decide the relevant issues and not to keep the suit pending which has been instituted with an oblique motive and to cause harassment to the other side.
In the facts of this case, as stated earlier, the probate application which was filed by the revision applicant in the year 1994 was with assertion that the applicant is the only legal representative of the deceased Motilal and also deceased Premraj. However, said assertion is contrary to the record. The respondents herein, were not made party to the said application. The said application came to be dismissed in default in the year 2002. The applicant did not take steps to restore it. However, filed fresh probate application after four years in the year 2006. Such probate proceedings are filed with oblique motive and to cause harassment to the respondents. In the facts of this case, it will have to be held that, the trial Court as well as the Appellate Court have not committed any irregularity or illegality while passing the impugned judgment and order.
Civil Procedure Code, 1908 - Section 10-Succession Act, 1925, Sections 276 and 372-Clubbing of proceedings-"Previously instituted suit"- Application for probate filed in 1994- Dismissed in default in 2002-Fresh Proceedings for probate instituted in 2006-Application for grant of succession certificate filed by respondent in 1999, was pending-Said application to be considered as previously instituted suit.-That apart, the application filed by respondent Nos. 1 to 5 for getting succession certificate will have to be considered as previously instituted suit since the earlier probate application which was filed by the applicant herein in the year 1994 came to be dismissed in default on 27.8.2002. According to the applicant, the application which is filed in the year 2006 is a fresh application for probate and not an application for restoration of the earlier probate application, which was dismissed in default.
1. Rule. Rule made returnable forthwith.
With the consent of learned Counsel for the parties, the matter is taken up for final hearing at the stage of admission. This Civil Revision Application is filed challenging the judgment and decree passed by the District Court, Ahmednagar in Regular Civil Appeal No. 197 of 2006 dated 20082008 and judgment and decree passed by the Civil Judge, Senior Division, Ahmednagar in Civil Misc. Application NO. 265 of 1999 dated 05-06-2006.
2. The respondents herein filed application under Section 372 of the Indian Succession Act and after recording the evidence and hearing the parties, by reasoned order, the application filed by the respondents came to be allowed on 05-06-2006.
Clause (ii) of the operative order reads thus :
"(ii) Issue succession certificate in the names of applicants and respondents entitling them to succeed an amount of share certificates of The Hindustan Liver Company Limited as designated in Schedule (A) on payment of requisite court fee."
3. Being aggrieved by the judgment and order dated 05-062006 passed by the Joint Civil Judge, Senior Division, Ahmednagar in Civil Misc. Application NO. 265 of 1999, the revision applicant herein, filed Regular Civil Appeal No. 197 of 2006. The said appeal came to be dismissed on 2008-2008. Hence, this Civil Revision Application.
4. Learned Counsel appearing for the applicant submits that, the application filed by the respondents came to be allowed without considering the will deed of deceased Motilal Rithkaran Mutha. The Courts ought to have considered the gift deed dated 14-02-1967, will deed dated 10-02-1968 and the affidavit of the father of the applicant dated 18-07-1985, which conclusively proves that the deceased Motilal has bequeathed all the 527 shares of the Hindustan Lever Company Limited to the applicant. It is further submitted that, the will deed dated 10-02-1968 is more than 30 years old document as the attesting witnesses have expired and therefore, it is not possible to examine the said witnesses.
Learned Counsel further invited my attention to the judgment of this Court in the case of P.D. Navghare and another vs. S.D. Chachad and others reported in 2011(1) Mh.L.J. 509and submitted that, the will more than 30 years old, presumption as to its correctness under Section 90 of the Evidence Act would apply. It is further submitted that, it ought to have been considered by the Courts below that, when the proceedings filed for probate by the applicant are first in point of time and the subject matter and the parties in the proceedings filed by the applicant and respondent Nos. 1 to 5 for succession certificate are same, therefore, in view of the provisions of Section 10 of the Code of Civil Procedure, the proceedings filed by respondent Nos. 1 to 5 ought to have been stayed by the trial Court as well as the appellate Court. In support of this contention, learned Counsel appearing for the revision applicant placed reliance on the judgment of this Court in Writ Petition No. 1259 of 2010 and in particular para5 of the said judgment. It is further submitted that, the trial Court as well as the appellate Court failed to consider that immediately after knowledge of the probate application filed by the applicant i.e. 41/1994 the present Application No. 265 of 1999 was filed by respondent Nos. 1 to 5 and therefore, probate application filed by the applicant was first in point of time. It is further submitted that, learned trial Court as well as the appellate Court ought to have stayed the proceedings in Application No. 265 of 1999 in view of Section 10 of the Code of Civil Procedure. It is further submitted that, the copy of the will deed, gift deed, and affidavit of the father of the applicant are produced in Regular Civil Appeal No. 295 of 2006 which is filed on 28-09-2006, the appellate Court ought to have called those proceedings and the findings given by the appellate Court that the petitioner has not produced the co
