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2016 Supreme(Bom) 415
IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR
A.S. CHANDURKAR, J.
Nitesh Shashikant Khobragade - Appellant
Versus
Anil Marotrao Khobragade & Anr. - Respondents
First Appeal No. 1118 of 2015
Decided On : 07-04-2016
Advocate Appeared:
Shri C.R. Bhagwani, Advocate for the appellant
Shri M.R. Joharapurkar, Advocate for the respondent no.1
Shri Manke, Advocate for the respondent no. 2
In contentious probate proceedings, the court has the authority to convert the proceedings into a civil suit for adjudication, even if the matter is not covered by Section 213 of the Indian Succession Act.
Headnote:
Indian Succession Act - Probate Proceedings - Section 299 - [ENTITLEMENT, PROBATE PROCEEDINGS, CONTENTIOUS PROCEEDINGS] - [Section 213, Section 57(c), Section 295] - The court discussed the provisions of Section 213, Section 57(c), and Section 295 of the Indian Succession Act, 1925. It interpreted the applicability of probate proceedings in contentious situations and the authority of the court to convert such proceedings into a civil suit. The court's decision was influenced by the interpretation of Section 213 and the observations of the Hon'ble Supreme Court in Balbir Singh Wasu v. Lakhbir Singh and others (2005) 12 Supreme Court Cases 503, which allowed probate proceedings to continue in courts not covered by Section 213 as a matter of prudence.
Fact of the Case:
The appellant filed a probate petition under Section 276 of the Indian Succession Act, 1925, seeking entitlement to a plot of land based on a will. The respondent contested the claim, leading to contentious proceedings. The trial court dismissed the proceedings, granting liberty to file appropriate proceedings before the competent civil court.
Finding of the Court:
The court found that the probate proceedings had become contentious and deserved to be converted into a civil suit for adjudication, rather than being dismissed based on the provisions of Section 213 and Section 57(c) of the Indian Succession Act.
Issues: The main issue was whether the trial court should have converted the probate proceedings into a civil suit instead of dismissing them.
Ratio Decidendi: The court held that in contentious probate proceedings, it is appropriate to convert the proceedings into a civil suit for adjudication, as observed in Balbir Singh Wasu v. Lakhbir Singh and others (2005) 12 Supreme Court Cases 503.
Final Decision: The court quashed the trial court's order and restored the probate proceedings, directing the trial court to treat the proceedings as contentious and decide them on their own merits without being influenced by any observations in the order.
In view of notice for final disposal issued on 04.01.2016 the learned counsel for the parties have been heard at length.
2. Admit. Taken up for final disposal with consent of parties.
3. This appeal has been filed under Section 299 of the Indian Succession Act, 1925 (for short, the said Act) challenging the order dated 27.07.2015 passed by the learned Joint Civil Judge, Senior Division, Nagpur in Probate Petition No. 6 of 2012 thereby dismissing the proceedings for issuance of probate and granting liberty to the appellant to have the claim adjudicated before the competent Civil Court.
4. Facts in brief are that the appellant claims entitlement to a plot of land alongwith property constructed thereon on the basis of will executed by Smt. Manoramabai Khobragade and Shri Marotrao Khobragade on 24.09.2003. According to the appellant he had been named as executor in the said will. The appellant therefore filed a petition under Section 276 of the said Act for grant of probate. The respondents herein were duly served. They filed their reply to the aforesaid proceedings. The respondent no.1 pleaded that the appellant had no right whatsoever under the said will and thus disputed his entitlement. The respondent no. 2 however also claimed entitlement on the basis of will dated 24.09.2003.
5. The appellant thereafter led his evidence in the probate proceedings. On 08.10.2013 as the respondent no.1 and his counsel were absent the right to cross-examine the appellant was forfeited. Thereafter on 18.09.2014 the respondent no.1 and his counsel was absent and hence the side of the respondent no.1 was closed. On 15.11.2014 the respondent no.1 filed an application below Ex. 66 for permission to lead evidence. He also filed an application below Ex. 67 in which a prayer for dismissal of the proceedings was made. In the said application it was stated that in view of the provisions of Section 213 of the said Act, the proceedings itself were not competent and that the requirements of Section 57 of the said Act were not satisfied. It was then stated that as the proceedings were being contested, the same ought to have been converted into a suit.
6. The aforesaid application was opposed by the appellant by filing reply at Ex. 69. Reference was made to the provisions of Section 28A(1) of the Bombay Civil Courts Act, 1869 with regard to the manner in which contentious proceedings were required to be decided. It was also stated that the appellant had examined himself and one witness and had closed his side. The respondent no.2 had thereafter filed his evidence on affidavit and at that stage the respondent no.1 had filed the application for dismissal of the proceedings. It was therefore stated that the proceedings ought to be treated as contentious proceedings and decided on merits. By the impugned order dated 27.07.2015 the learned Judge of the trial Court held that in view of the provisions of Section 213 read with Section 57(c) of the said Act it was not necessary to obtain probate of the will. The application below Ex. 67 was therefore allowed and the proceedings came to be dismissed after granting liberty to the appellant to file appropriate proceedings for adjudication of his claim before the competent civil Court.
7. Shri C.F. Bhagwani, the learned counsel for the appellant submitted that the trial Court was not justified in dismissing the proceedings for grant of probate. He submitted that as the prayer for grant of probate was being contested by the respondent no. 1, the procedure as prescribed by Section 295 of the said Act was required to be followed. He submitted that in fact the appellant had led his evidence in support of the prayer for grant of probate and after the side of the respondent no.1 was closed, the application for dismissal of the proceedings was filed. It was then submitted that even if it was not necessary for executor to establish his right under Section 213 of the said Act, once the proceedings for grant of probate had been
