ssm sm sm IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION FIRST FIRST FIRST APPEAL NO. 573 OF APPEAL NO. 573 OF APPEAL NO. 573 OF 1995 1995 1995 Namdeo Mali, R/o. Bhingare, Tal. Yeola, Dist. Nashik. ...Appellant. Vs. 1. Jayram Barde, 2. Mr. Trimbak Ukaram Barde, 3. Mrs. Roshmabai Trimbak Barde, All R/o. Khodlejunge, Tal. Niphad, Dist. Nashik. ...Respondents. Mr. Hemant Ghadigaonkar i/by Mr. Madhav Jamadar for the appellant. Ms. Seema Sarnaik for the respondents. CORAM CORAM CORAM : ANOOP V. MOHTA,J. : ANOOP V. MOHTA,J. : ANOOP V. MOHTA,J. DATED DATED DATED : 17th December, 2007 : 17th December, 2007 : 17th December, 2007 JUDGMENT:- JUDGMENT:- JUDGMENT:- 1. Being aggrieved and affected by the impugned order dated 27th April, 1993 passed by the 4th Additional District Judge, Nashik (for short, "the Trial Court"), the appellant’s application for grant of probate in pursuance to the later registered Will executed by the deceased Zipru Punja Bhil of village Bhingare, Tq. Yeola, District Nashik, dated 01/09/1990 rejected and by the same order the counter claim of the respondents ( 2 ) (original opponents) have been allowed and that resulted into the grant of probate based upon the registered Will of the deceased dated 05/06/1979 (the 1979 Will) and the Court has accordingly issued probate in favour of original opponent Nos. 1 to 3 (respondents 1 to 3). Therefore the present appeal. 2. On 05/06/1979, the deceased Zipru Punja Bhil executed a Will dated 05/06/1979 in favour of respondent Nos. 1 to 3 and bequeathed property bearing Gat No.7 admeasuring 2H S R situate at Village Bhingare, Taluka - Yeola, District-Nashik. 3. On 01/09/1990, it is the case of the appellant that deceased Zipru Punja Bhil, executed a Will dated 01/09/1990 in his favour. 4. On 05/01/1991, therefore, the appellant preferred a Civil Miscellaneous Application No. 8 of 1991 for probate. 5. On 10/09/1991 a Counter claim filed by respondent Nos. 1 to 3 for the probate of the Will dated 05/06/1979. ( 3 ) 6. The appellant did not file any response and or opposition to the said counter claim. Therefore, the counter claim as raised and filed by the respondents remained unchallenged. The appellant has led the evidence of himself and one P.W.2 Mr. Popat Chandrakant Kahar an attesting witness and also Mr. Gopal Dattatraya Kulkarni, P.W.3 scribe. 7. Respondent/opponent No.1 led the evidence of himself (Mr.Jayram Barde) and one Mr.Vishwanath Sadashiv Gade, P.W. 2 who is a police patil, P.W.3 Mr. Nivrutti Gabaji Savle is an attesting witness to the Will dated 05/06/1979. 8. After considering the rival contention of the pleadings the trial Court has framed following two issues:- 1. Whether the applicant is entitled for probate in pursuance of the will dated 01/09/1990? . No. 2. Whether the opponent Nos. 1 to 3 are entitled for probate in pursuance of the will dated 05/06/1979? . Yes. . and passed the order accordingly. ( 4 ) 9. In the result, by the impugned order, the trial Court has granted probate in pursuance to the Will dated 05/06/1979 in favour of respondent Nos. 1 to 3. 10. In the year 1995, the appellant preferred a First Appeal No. 573 of 1995 before this High Court challenging the judgment and order dated 27/04/1993 passed in Civil Miscellaneous Application No. 8 of 1991. 11. On 19/07/2006, the Single Judge of the High Court by his order dated 19/07/2006 in Civil Application No. 2706 of 2006 in First Appeal No. 573 of 1995 directed respondent No.1 (i.e. the appellant in the First Appeal No. 573 of 1995) not to create any third party interests in respect of the suit property till final disposal of the Appeal. 12. Admittedly, the respondents counter-claim based upon the 1979 Will remained unopposed. In this way, therefore, admittedly, there was no objection of any kind even of the jurisdiction. 13. Order 8 Rule 6(A) to 6(G) of the Code of Civil ( 5 ) Procedure (for short, "CPC") amended on 1st February, 1977, being relevant, are reproduced as under:- "6A. (1) A defendant in a suit may, in addition to his right of pleading a set-off under rule 6, set up, by way of counter-claim against the claim of the plaintiff, any right or claim in respect of a cause of action accruing to the defendant against the plaintiff either before or after the filing of the suit but before the defendant has delivered his defence or before the time limited for delivering his defence has expired, whether such counter-claim is in the nature of a claim for damages or not: . Provided that such counter-claim shall not exceed the pecuniary limits of the jurisdiction of the Court. . (2) Such counter-claim shall have the same effect as a cross-suit so as to enable the Court to pronounce a final judgment in the same suit, both on the original claim and on the counter-claim. . (3) The plaintiff shall be at liberty to file a written statement in answer to the counter-claim of the defendant within such period as may be fixed by the Court. . (4) The counter-claim shall be treated as a plaint and governed by the rules applicable to plaints. 6B. Where any defendant seeks to rely upon any ground as supporting a right of counter-claim, he shall, in his written statement, state specifically that he does so by way of counter-claim. 6C. Where a defendant sets up a counter-claim and the plaintiff contends that the claim thereby raised ought not to be disposed of by way of counter-claim but in an independent suit, the plaintiff may, at any time before issues are settled in relation ( 6 ) to the counter-claim, apply to the Court for an order that such counter-claim may be excluded and the Court may, on the hearing of such application, make such order as it thinks fit. 6D. If in any case in which the defendant sets up a counter-claim, the suit of the plaintiff is stayed, discontinued or dismissed, the counter-claim may nevertheless be proceeded with. 6E. If the plaintiff makes default in putting in a reply to the counter-claim made by the defendant, the Court may pronounce judgment against the plaintiff in relation to the counter-claim made against him, or make such order in relation to the counter-claim as it thinks fit. 6F. Where in any suit a set-off or counter-claim is established as a defence against the plaintiff’s claim, and any balance is found due to the plaintiff or the defendant, as the case may be, the Court may give judgment to the party entitled to such balance. 6G. The rules relating to a written statement by a defendant shall apply to a written statement filed in answer to a counter-claim." 14. The Bombay High Court in Teofilo Barreto Vs. Teofilo Barreto Vs. Teofilo Barreto Vs. Sadashiva Sadashiva Sadashiva G. Nasnodkar, 2007(6) M.L.J. 127 G. Nasnodkar, 2007(6) M.L.J. 127 G. Nasnodkar, 2007(6) M.L.J. 127 has exhaustively dealt with the importance of counter-claim in the following words, after taking note of various judgments including Jag Mohan Chawla Jag Mohan Chawla Jag Mohan Chawla Vs. Vs. Vs. Dera Radha Swami Satsang and Ors. AIR 1996 S.C. Dera Radha Swami Satsang and Ors. AIR 1996 S.C. Dera Radha Swami Satsang and Ors. AIR 1996 S.C. 2222. 2222. 2222. "Emerging "Emerging "Emerging Principles:- Principles:- Principles:- ( 7 ) 35-36. From the above decisions, the following principles emerge:- . A counter-claim is really a suit, though the same is taken in the written statement. Just as a suit is filed by the plaintiff, defendant seeks a relief against the plaintiff on a cause of action which he has against the plaintiff. It is an independent cause of action which could also be agitated in a separate suit. It is to avoid multiplicity of proceedings, defendant is given liberty to file a counter-claim and get adjudication. Issues are suggested in both the original claim as well as in the counter-claim, and both are disposed of by a common judgment. Order 8, Rule 6-A (2), Civil Procedure Code says that there can be a final judgment in the same suit, both on the original claim and counter-claim. In common parlance, "common judgment" means, ’decision arrived simultaneously in more than one suit tried together’. In view of the legal position under Order 8, Rule-A, Civil Procedure Code; a counter-claim or set off can be made in many forms in a suit. But they need not be given separate numbers. The counter-claim could also said to be a weapon of evidence and enables the defendant to enforce the claim against the plaintiff as effectively as an independent action. As stated earlier, it is an enabling provision which has given a right to the defendant that instead of filing an independent action, he can seek that relief in a suit filed by plaintiff against him. Originally, there was a doubt whether the counter-claim could only be filed in a suit for recovery of money and whether there should be nexus to the cause of action on which the suit is instituted. However, the legal position is now settled in view of the judgment of the Supreme Court in the case of Shri Jag Mohan Chawla Vs. Dera Radha Swami Satsang, 1996 DGLS 896; 1996(5) JT SC 428 wherein their Lordships have held thus:- ( 8 ) . ".... The counter-claim could be treated as a cross suit and it could be decided in the same suit without relegating the parties to a fresh suit." 37. The aforesaid decision has been subsequently followed by this Court in the decision reported in 1996(2) Mh.L.J. 844, Hemraj Vs. Yamunabai. From the above judgment of the Supreme Court it is clear that the scope of a counter-claim is in the nature of a cross suit for all purposes. 38. Upshot of the above emerging principles is that the counter-claim has to be treated as a separate suit. Only for the purpose of convenience and speedy disposal of rival claims, counter-claim in a suit is made permissible." 15. Therefore, the learned counsel appearing for the respondents basically contended that; such counter-claim as raised, has been answered based upon the material evidence laid by the parties without any objection about the jurisdiction at any point of time therefore, the issue cannot be allowed to raise on the ground of maintainability and or jurisdiction for the first time in the first appeal; any defendant/ respondent can raise counter-claim in any kind of suit; there is no bar whatsoever, which prohibit and or debar the respondents from raising any counter-claim in any proceedings and even in the ( 9 ) probate proceedings like present one. 16. After reading the clear provisions of counter- claim, I am also of the view that there is no embargo of whatsoever created to raise counter-claim in the suit and or proceedings/ application filed under the Indian Succession Act-1925 (for short," the Indian Succession Act"). There is nothing to show that the counter-claim as provided under Order 8 Rule 6A is limited to the case involved in the money claims only. The Rules 6A to 6G if read together, no restriction whatsoever, is created to file counter-claim in any suit and or proceedings of any nature, vide Suman Suman Suman Kumar Kumar Kumar Vs. St. Thomas School and Hostel and ors. AIR Vs. St. Thomas School and Hostel and ors. AIR Vs. St. Thomas School and Hostel and ors. AIR 1988, 1988, 1988, Punjab and Haryana 38. Punjab and Haryana 38. Punjab and Haryana 38. In Raman Sukumaran Vs. Raman Sukumaran Vs. Raman Sukumaran Vs. Velayudhan Velayudhan Velayudhan Madhavan, AIR 1982 Kerala 253 Madhavan, AIR 1982 Kerala 253 Madhavan, AIR 1982 Kerala 253, the Kerala High Court held that in view of Rule 6A any counter claims, which arise between the parties and which are cognizable by the Court where the suit is pending, falls within the purview of Rule 6A to 6G of the CPC. The object appears to be to reduce pendency of cases so that cause of action and cross-claim similar in nature could be clubbed together and disposed of by a common judgment. The reliance can also be made in this regard on Laxmidas Dayabhai Kabrawala Vs. Laxmidas Dayabhai Kabrawala Vs. Laxmidas Dayabhai Kabrawala Vs. ( 10 ) Nanabhai Nanabhai Nanabhai Chunilal Kabrawala & Ors. AIR 1964 S.C. 11, Chunilal Kabrawala & Ors. AIR 1964 S.C. 11, Chunilal Kabrawala & Ors. AIR 1964 S.C. 11, wherein though there was no such amended provisions like order 8 Rule 6A to 6G, the Supreme Court still has recognized and permitted the counter-claim. 17. These amended Rules are with the view to make detail provisions regarding such counter claims. 18. The Apex Court in Jag Mohan Chawla (supra) and Jag Mohan Chawla (supra) and Jag Mohan Chawla (supra) and also also also in Mahendra Kumar Vs. State of Madhya Pradesh, in Mahendra Kumar Vs. State of Madhya Pradesh, in Mahendra Kumar Vs. State of Madhya Pradesh, AIR AIR AIR 1987 S.C. 1395 1987 S.C. 1395 1987 S.C. 1395 held that in a suit for injunction, counter-claim for injunction in respect of the same or a different property is maintainable. The cause of action from which the counter-claim arises need not necessarily arise from or have any nexus with the cause of action of the plaintiff. 19. As per Rule 6-E, if the plaintiff makes default in putting in a reply to the counter-claim made by the defendant, the Court may pronounce the judgment against the plaintiff in relation to the counter-claim made against him and or pass another order. As per Rule 6-G, the rules relating to a written statement by a defendant shall apply to the written statement filed in answer to a counter-claim. ( 11 ) 20. As per the Bombay Amended Rules (Bombay rules) (Maharashtra Government Gazette dated 31/12/1987) 19, 20 and 21 as noted above, the court can proceed for want of written statement by the plaintiff to the counter-claim raised by the defendant in the suit. As per Rule 20, if in any case, in which the defendants sets up a counter-claim, the suit of the plaintiff is stayed, discontinued or dismissed the counter-claim may nevertheless be proceeded with. Rule 36 of the Bombay rules deals with the provisions with regard to the third party in the counter-claim. In totality, therefore, considering the above scheme and the purpose and object of the amendment to Order 8 Rule 6A to 6G including the Bombay rules 11 to 36 of C.P.C. as referred above, I am of the view that such counter-claim for probate based upon another Will as filed by the defendant/ respondent herein in the testamentary suit in absence of any bar in any of the Act is maintainable. 21. The entire CPC is applicable to the testamentary suit. (Vide Rupali Mehta Vs. Smt. Tina Narinder (Vide Rupali Mehta Vs. Smt. Tina Narinder (Vide Rupali Mehta Vs. Smt. Tina Narinder Sain Sain Sain Mehta 2006(6) ALL MR Page 48) Mehta 2006(6) ALL MR Page 48) Mehta 2006(6) ALL MR Page 48). ( 12 ) 22. The procedure and the proceedings for grant of probate are available in Indian Succession Act. The Gujrat High Court in Multivahuji w/o Goswami Multivahuji w/o Goswami Multivahuji w/o Goswami Goverdhaneshji Goverdhaneshji Goverdhaneshji Girdharlalji Vs. Smt. Kalindivahuji & Girdharlalji Vs. Smt. Kalindivahuji & Girdharlalji Vs. Smt. Kalindivahuji & Ors. Ors. Ors. AIR 1994 Gujarat 42, AIR 1994 Gujarat 42, AIR 1994 Gujarat 42, has explained this in following words. "13. It is now well established general observation that the probate granted by a competent Court is conclusive evidence of the validity of such will until it is revoked and no evidence can be admitted to impeach it except in a proceeding taken for revoking the probate. Where the citation has been issued to the interested persons and has been issued to the interested persons and has been served upon them, their failure to enter a caveat to contest the proceedings would preclude them from contesting the validity of the will in every proceedings. (see Smt. Rukmini Devy V. Narendra Lal Gupta, AIR 1984 Supreme Court 1888). 14. A probate Court is a Court of conscience and it does not decide the rights between the parties. A Probate Court has to deliver a judgment which would become a judgment in rem and this judgment will bind not only the parties before it but the whole world. In the case of Kalyanchand Lalchand V. Sitabai Dhanasa, reported in AIR 1914 Bombay 8 a Full Bench of the Bombay High Court has held that contentious probate proceedings being required to be in the form of suits under S. 295 of the Act, constitute ’suits’ under S. 11 of the Code of Civil Procedure and a finding by a Probate Court in such proceedings operated as res-judicata under S. 11 as between the parties thereto. The probate proceedings ( 13 ) must take the form as nearly as may be of a suit accordingly to the provisions of the Civil Procedure Code, in which the petitioner for probate or letters of Administration shall be the plaintiff, and the person who may have appeared to oppose the grant shall be the defendant. There is no definition of the word "suit" either in the Civil Procedure Code or in the General Clauses Act and, therefore, the Full Bench held that contentious probate proceedings must take the form of a suit. A judgment as a rule affects only the parties thereto and their privies. Judgments is rem form an exception to this rule and are valid not only inter partes but against all the world. Ss. 40 to 44 of the Evidence Act deal with the relevancy of judgments of courts of justice. S. 41 deals with final judgments, decrees or orders of competent courts in the exercise of probate, matrimonial adminaralty or insolvency jurisdiction or what are known as judgments in rem and in states that such judgments, decrees or orders are conclusive proof of the matters specified in the Section and by S. 4 of the Evidence Act, evidence cannot be allowed to disprove the facts established by such judgments. 15. Section 276 of the Act provides that an application for probate or for letters of administration shall be made with the will and it shall contain the details set out in Clauses ’a’ to ’e’. Under S. 280 such petition is required to be signed and verified by the petitioner. Under S. 281 of the Act, the petition for probate is also required to be verified by at least one of the witnesses to the will. Section 283 of the Act deals with the powers of the District Judge, which include the power to examine the petitioner in person upon oath or to require further evidence of the due execution of the will and he can issue citations calling upon all the persons claiming to have any interest in the ( 14 ) estate of the deceased to come and see the proceedings before the grant of probate. The person objecting to the grant of probate has right under S. 284 to lodge caveat against the grant of probate. Once the caveat is entered to the grant of probate, it becomes incumbent upon the court to hear such caveator and a District Judge or his delegate shall not grant probate in which there is contention as to the grant. 23. In the Case of Chiranjilal Shrilal Goanka V. Chiranjilal Shrilal Goanka V. Chiranjilal Shrilal Goanka V. Jasjit Jasjit Jasjit Singh, reported in 1993(2) SCC 507 : (1993 AIR Singh, reported in 1993(2) SCC 507 : (1993 AIR Singh, reported in 1993(2) SCC 507 : (1993 AIR SCW SCW SCW 1439) 1439) 1439) the Supreme Court of India has made pertinent observations about the nature of Probate proceeding in the following words: . "The Succession Act is a self-contained code insofar as the question of making an application for probatee, grant or refusal of probate or an appeal carried against the decision of the probate court. This is clearly manifested in the fascicule of the provisions of the Act. The probate proceedings shall be conducted by the probate court in the manner prescribed in the Act and in no other ways. The grant of probate with a copy of the will annexed establishes conclusively as to the appointment of the executor and the valid execution of the will. Thus it does no more than establish the factum of the will and the legal character of the executor. Probate court does not decide any question of title or of the existence of the property itself." 24. It is further to be noted the following Sections 268 and 295 of the Indian Succession Act, which reads ( 15 ) thus:- . "S. "S. "S. 268:- Proceedings of District 268:- Proceedings of District 268:- Proceedings of District Judge’s Judge’s Judge’s Court in relation to probate Court in relation to probate Court in relation to probate and and and administration:- administration:- administration:- . The proceedings of the Court of the District Judge in relation to the granting of probate and letters of administration shall, save as hereinafter otherwise provided, be regulated, so far as the circumstances of the case permit, by the Code of Civil Procedure, 1908 (5 of 1908). . "S. "S. "S. 295:- Procedure in contentious 295:- Procedure in contentious 295:- Procedure in contentious cases:- cases:- cases:- . In any case before the District Judge in which there is contention, the proceedings shall take, as nearly as may be, the form of a regular suit, according to the provisions of the Code of Civil Procedure, 1908 (5 of 1908), in which the petitioner for probate or letters of administration, as the case may be, shall be the plaintiff and the person who had appeared to oppose the grant shall be the defendant." . From the above it is clear that the probate proceedings shall be regulated by the CPC. 25. The proceedings for the grant of probate or letters of administration takes the form of a suit in any case where the contentions are raised about the capacity of the testator and about the facts whether he was in sound and disposing state of mind, when he made a Will which was duly executed and or attested, ( 16 ) such proceedings becomes contentious. Once the proceedings becomes contentious, Section 295 provides that it shall take, as nearly as may be, the form of a regular suit. The words "as nearly as may be" therefore, further made clear that as far as possible such proceedings is to be treated as suit governed by the C.P.C.. 26. There is no dispute in the present case that the Indian Succession Act, is applicable to the facts and circumstances of the case. The parties have in fact acted accordingly. The Court has also passed an order based on the said provisions after considering the rival contentions as raised by the parties in support of respective wills, based upon the evidence laid by the parties. As there was no objection of any kind raised by the defendant with regard to maintainability of counter-claim as filed in the present proceedings. 27. The submission, therefore, based upon Venidas Venidas Venidas Nemchand Nemchand Nemchand Vs. Bai Champabai, Bom. L.R., Volumn XXXI Vs. Bai Champabai, Bom. L.R., Volumn XXXI Vs. Bai Champabai, Bom. L.R., Volumn XXXI 1928 1928 1928 page 1014 page 1014 page 1014, that it is obligatory to probate the Will by a separate petition, in view of above change of law and the circumstances, is not acceptable. This Court while dealing with the Bombay High Court Rules ( 17 ) 602 and the Indian Succession Act Section 295 based upon the rival Wills set up by