1 cra38.09 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CIVIL REVISION APPLICATION NO. 38 OF 2009 Jawahar Premraj Mutha, Age: 68 years, Occ: Pensioner, R/o. Navi Peth, Ahmednagar. ...APPLICANT VERSUS 1. Ramesh Premraj Mutha, Age: 62 years, R/o. Boat Club Road, Vrindawan Park, Pune. 2. Suresh Premraj Mutha, Age: 54 years, Occ: Business, R/o. 81, Samarth Nagar, Aurangabad. 3. Rimlabai Harakchand Gandhi, Age: 54 years, R/o. Parag Corner, Savedi, Ahmednagar. 4. Sau. Gulababi Harakchand Phirodiya, Age: 80 years, R/o. Shivneri Marg, Station Road, Ahmednagar. 5. Sau. Pembai Shantilal Mutha (Deceased through her L.Rs.) 5(a) Champalal Shantilal Mutha, Age: Major, R/o. Near Punjab National Bank, Dal Mandi, Ahmednagar. 5(b) Ashok Shantilal Mutha, Age: Major, 2 cra38.09 R/o. Hiro Moti Bungalow, Station Road, Opp. Akshata Garden, Ahmednagar 414 001. 5(c) Anil Shantilal Mutha, Age: Major, R/o. Hiro Moti Bungalow, Station Road, Opp. Akshata Garden, Ahmednagar 414 001. 5(d) Mrs. Pushpa Prakashlal Bhalgat, Age: Major, R/o. Sangam Chouk, Khist Galli, Ahmednagar 414 001. 5(e) Mrs. Chhaya Vimalchand Mutha, Age: Major, R/o. A-7, Vaibhav Apartment Nattubhai Cercle, Countri Road, Baroda (Guj.). 5(f) Smt. Alka Vijay Gugale, Age: Major, Gayatri Apartment, Mahajan Galli, Ahmednagar 414 001. 6. Smt. Tarabai Shantilal Mutha, Age: 67 years, R/o. Tapkir Galli, District Ahmednagar. 7. Pratima Amrutlal Mutha, Age: 47 years, R/o. Akbar Press Property, Station Road, Ahmednagar. 8. Tarabai Sanjaylal Kanthaiya. Deceased. 9. Smt. Soorajbai Bansilal Mutha, Age: 82 years, 10. Shrikant Bansilal Mutha, Age: 67 years, 3 cra38.09 11. Ashok Bansilal Mutha, Age: 62 years, Resp. Nos. 9 to 11 All R/o. Maniknagar, near Nagpur Pune Road, Ahmednagar. 12. Rajmal Tarwatmal Jalori (DECEASED). 13. Viren Rajmal Jalori, Age: 65 years, 14. Vijay Rajmal Jalori, Age: 67 years, 15. Subhash Rajmal Jalori, Age: 61 years, 16. Prakash Rajmal Jalori, Age: 59 years, 17. Rajesh Rajmal Jalori, Age: 57 years, Resp. Nos. 13 to 17 All R/o. 74/2-3 Malwiya Nagar, Bhopal, Madhya Pradesh. 18. Saroj Smratmal Chanodiya, Age: 60 years, R/o. 74/1, Malwiya Nagar, Bhopal, Madhya Pradesh. ...RESPONDENTS ... Mr. S.D. Kulkarni, Advocate for applicant. Mr. N.K. Kakade, Advocate for respondent Nos. 2, 13 to 18. Mr. R.R. Mantri, Advocate for respondent Nos.10 and 11. ... 4 cra38.09 CORAM : S.S. SHINDE, J. RESERVED ON : 25-08-2011 PRONOUNCED ON : 02-09-2011 JUDGMENT : . 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 20-08-2008 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 5 cra38.09 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 05-06-2006 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 20-08-2008. 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 6 cra38.09 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. 509 and 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 7 cra38.09 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 para-5 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 8 cra38.09 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 copy of will and hence, it cannot be said that there is a will, is erroneous in law. It is further submitted that, both the Courts did not consider the will deed dated 10-02-1968, and the fact that, apart from 527 shares of Hindustan Lever Company Limited, there are other properties of the deceased. It is further submitted that, the Courts below have failed to consider that, the will in favour of the petitioner was misplaced by the father of the petitioner and hence, though Motilal Mutha has expired on 24-09-1968, immediately the petitioner could not take any action, however respondent Nos. 1 to 5 have failed to explain why they have not taken any action till 1999. It is further 9 cra38.09 submitted that, the appellate Court failed to consider the provisions of Section 384(1) and also provisions of Section 388(2) of the Act where the appellate Court has got power to remand the matter in view of the judgment of the Kerala High Court in the case of Abdul Karim and another vs. Raheesa Ansasri reported in A.I.R. 1986 Kerala 183. Learned Counsel invited my attention to Paragraphs-24 to 30 of the said judgment and submitted that, this Court has power to remand the matter for proper adjudication. 5. Learned Counsel appearing for the applicant further invited my attention to the judgment of the Hon'ble Supreme Court in the case of Chiranjilal Shrilal Goenka (Deceased) through L.Rs. vs. Jasjit Singh and others reported in 1993 A.I.R. SCW 1439 and in particular Para-16 of the said judgment and submitted that, the grant of probate by Court of the competent jurisdiction is in the nature of a proceeding in rem. The probate 10 cra38.09 granted by the competent Court is conclusive of the validity of the Will until it is revoked and no evidence can be admitted to impeach it except in a proceeding taken for revoking the probate. It binds not only upon all the parties made before the Court but also upon all other persons in all proceedings arising out of the Will or claims under or connected therewith. Learned Counsel further submits that, the trial Court has directed to issue succession certificate, there is no adjudication in respect of who are Class-I and Class-II heirs, what is the share of legal heirs. It is further submitted that, probate application which was filed by the applicant in the year 1994 came to be dismissed in default in the year 2002. It is further submitted that, when the trial Court and the appellate Court decided the matters, probate proceedings were pending. It is further submitted that, probate proceedings filed by the applicant were prior in time. The probate application was filed in the year 1994 and the application filed by respondent Nos. 1 to 5 for 11 cra38.09 succession certificate was in the year 1999. It is further submitted that, probate proceedings are substantial proceedings and the proceedings for succession certificate are summary in nature. It is further submitted that, though succession certificate is issued, no finality can be given to the proceedings as long as probate proceedings are pending. It is further submitted that, though the trial Court has passed the order yet shares of the parties are not demarcated. It is further submitted that, the disputed shares are given merely on the basis of Will, therefore, respondents are not entitled for the shares. Learned Counsel further submitted that, Probate Application No. 41 of 1994 filed by the revision applicant came to be dismissed on 27-08-2002. The applicant filed fresh Probate Application No. 2 of 2006. Said application was filed on 10-04-2006. The application for succession certificate came to be decided on 05-06-2006. It is further submitted that, Probate Application No. 2 of 2006 is rejected by the trial Court on the ground that, 12 cra38.09 Probate is not necessary for the purpose of claim of shares from the Company. 6. Learned Counsel appearing for the applicant further submitted that, the respondents herein have filed application before the Joint Civil Judge, Senior Division, Ahmednagar, praying therein that in the judgment and operative part of the order in oral Inquiry Application No. 265 of 1999 correction should be made in the judgment and also in the operative part of the order. Therefore, according to learned Counsel for the applicant, if the respondents themselves have filed application for correction in the operative part of the judgment and order, in that case, Civil Revision Application deserves to be entertained. Learned Counsel further submitted that, the documents which are from A to F placed on record alongwith Civil Revision Application may be considered by this Court. However, at this stage, learned Counsel appearing for the respondents seriously objected for considering 13 cra38.09 some of the documents on the ground that, those were not formed the part of the lower court proceedings which is the subject matter of the Civil Revision Application. 7. Learned Counsel for the revision applicant invited my attention to the deposition of Jawahar Premraj Mutha i.e. revision applicant, and submitted that, it was brought to the notice of the trial Court as well as appellate Court that, probate application is pending before the competent Court and will deed is placed on record in the said proceedings and till those proceedings are decided, further proceedings of Civil Misc. Application No. 265 of 1999 are required to be stayed. It was also stated before the Court that the said will deed is signed by deceased Motilal. Learned Counsel also invited my attention to the contents of Civil Revision, grounds taken therein, annexures thereto, and reported judgment of this Court and the Hon'ble Supreme Court and submitted that, this Civil Revision Application deserves to 14 cra38.09 be allowed. It is submitted that, this Court can remand the matter back to the trial Court for clubbing together both the proceedings i.e. probate proceedings and the proceedings for succession certificate in view of the provisions of Section 10 of the Code of Civil Procedure. 8. On the other hand, learned Counsel appearing for respondent Nos. 2, and 13 to 18 invited my attention to affidavit in reply filed by the said respondents in this Court. It is further submitted that, the application filed by the respondents was under Section 372 of the Indian Succession Act. Relationship between the parties is admitted by the revision applicant. Misc. Application No.41 of 1994 for probate was filed by the applicants herein and said proceedings were pending for eight years. It is submitted that, the applicant herein did not take steps to get said probate application decided and repeated adjournments were sought and ultimately in the year 2002 said application came to be 15 cra38.09 dismissed in default. It is submitted that, the revision applicant did not make the respondents as party to the said proceedings. Affidavit was filed before the trial Court that the applicant is only legal heir. It is further submitted that, the applicant herein filed Civil M.A. No. 2 of 2006 after four years from dismissal of his earlier application in default. Therefore, such application was filed after 12 years from filing of the first application. 9. Learned Counsel invited my attention to the averments in the Civil Revision Application and submitted that, it is the case of the applicant himself that the will deed is dated 10-02-1968, however, said will deed was not traceable. Therefore, according to learned Counsel for the respondents, it creates suspicion in the mind about the genuineness of such alleged will deed. It is further submitted that, in succession proceedings, reply was filed by the revision applicant. It was expected that, at 16 cra38.09 least copy of the will deed and other documents should have been placed on record by the applicant herein, however, no such copy of the will deed was produced on record before the trial Court or before the appellate Court. Learned Counsel further submitted that, it is the case of the applicant that, apart from will, there was one more document in the nature of gift deed dated 14-02-1967, in that case, there was no question of further executing will deed in the year 1968, and therefore, will deed on which the applicant is placing reliance appears to be forged document. 10. Learned Counsel appearing for the respondents invited my attention to Para-9 of the Judgment of the District Judge and submitted that, no any document was produced on record including the will deed by the applicant before the Court below and therefore, the observations are made by the appellate Court that, the applicant failed to produce the will deed though he claims that will deed was executed by the deceased Motilal Mutha in 17 cra38.09 his favour. Learned Counsel further submitted that, the original claim was only for issuing succession certificate and the concerned Court has decided the said claim within four corners of law and therefore, this Civil Revision Application deserves to be dismissed. Learned Counsel further submitted that, though the appeal is filed by the revision applicant aggrieved by the order of the trial Court rejecting his probate application, the respondents are not yet served in the said proceedings and those proceedings are pending from 2006. Therefore, according to learned Counsel for the respondents, the order passed by the trial Court and also by the appellate Court is in accordance with law and therefore, this Court may not interfere in the said judgment and order under revisional jurisdiction. It is further submitted that, the applicant is elder brother and when he asserts that he is only legal heir though the respondents are also legal heirs of deceased Motilal, therefore, the respondents were bound to file application to get succession certificate and 18 cra38.09 if such application is decided in accordance with law, no interference is warranted under revisional jurisdiction. Learned Counsel further submitted that, provisions of Section 10 of the Code of Civil Procedure would be applicable if both suits are pending before the same Court and parties are also same and further issues involved therein are also same. 11. Learned Counsel appearing for the respondents submitted that, intention of the revision applicant is only to prolong the proceedings and he is not interested to get decided the probate application. When there is no dispute about the legal heirs, in that case, the trial Court as well as the appellate Court rightly disposed of the proceedings for succession certificate. Therefore, he submits that, the Civil Revision Application deserves to be dismissed. 12. Mr. R.R. Mantri, learned Counsel 19 cra38.09 appearing for respondent Nos. 10 and 11 submitted that, all the necessary parties are not added as respondents in this Civil Revision Application. It is further submitted that, respondent Nos. 8 and 12 are died, however, no legal heirs of said respondents are brought on record. It is further submitted that, original Application No. 41 of 1994 was filed before the trial Court. In the said proceedings, affidavit was filed by the applicant stating therein, that except the applicant there is no any legal representative of deceased Motilal Mutha. Attempt of the applicant was to get decided the probate proceedings behind the back of the respondents. It is further submitted that, proclamation was published in the newspaper of which son of the applicant is editor. The revision applicant is interested to keep litigation alive. The conduct of the applicant should have been to see that, probate application is decided at the earliest. It is further submitted that, the applicant has not demonstrated before this Court that, why his fresh application 20 cra38.09 filed in the year 2006 is not decided yet and what steps he has taken to get the said application decided at the earliest. 13. Learned Counsel for respondent Nos.10 and 11 invited my attention to Para-7 of the judgment of the trial Court and submitted that, the observations of the Court in the said paragraph disentitled the revision applicant from getting any relief. Learned Counsel further submitted that, the provisions of Section 10 of the Code of Civil Procedure are not applicable in the present case since the probate application which was filed in the year 1994 by the revision applicant came to be dismissed in default in the year 2002. The application was filed by the respondents for getting succession certificate in the year 1999. Therefore, application for probate is filed by the revision applicant in the year 2006, since the earlier probate application was dismissed in default in the year 2002. Therefore, the application filed by the respondents for getting 21 cra38.09 succession certificate was prior in time vis-a-vis probate application filed by the revision applicant in the year 2006. Learned Counsel further submitted that, even on plain reading of provisions of Section 10 of the Code of Civil Procedure, the said provisions are not attracted in the present case. It is further submitted that, the Hon'ble Supreme Court in the case of Pukhraj D. Jain and others vs. G. Gopalakrishna reported in A.I.R. 2004 S.C. 3504, in Para-4 held that, the object of Section 10 is to prevent 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. Therefore, learned Counsel would submit that, the impugned judgment and decree is passed 22 cra38.09 within four corners of law and therefore, once such judgment and decree is passed, it cannot be quashed and set aside, relying upon the contentions of the applicant. Learned Counsel further invited my attention to the judgment of this Court in the case of Mohammad Ismail Godme (deceased) through L.R's., vs. Ibrahim Hasanmiya Velaskar reported in 1990(2) Mah. L.R. 833 and submitted that, if the earlier suit is dismissed in default, the plaintiff is precluded from bringing fresh suit on the same cause of action and therefore, he would submit that, the fresh probate application filed by the revision applicant is not maintainable in view of the authoritative pronouncement of this Court in the aforementioned judgment. . Learned Counsel further invited my attention to the cross examination of the revision applicant and submitted that, admissions given in the cross examination would demonstrate the callus attitude and negligence of the revision applicant 23 cra38.09 when he says that " I do not know whether my probate application No. 41 of 1994 came to be dismissed in default." Therefore, learned Counsel for the respondents would submit that, this Civil Revision Application is devoid of any merits and same deserves to be dismissed. 14. I have heard learned Counsel appearing for the respective parties at length. Carefully perused the grounds taken in this Civil Revision Application, annexures thereto, and original record which is received from the trial Court. The main point which is raised in this Civil Revision Application is ground No.VII in the Civil Revision Application, i.e. : "(VII) It ought to have been considered that when the proceedings filed for probate by the petitioner are first in point of time and the subject matter & the parties in the proceedings filed by the petitioner & respondent no.1 to 5 are same in view of the provisions of section 10 of 24 cra38.09 CPC the present proceedings ought to have been stayed by the trial as well as the appellate court." . The applicant herein filed Probate Application No. 41 of 1994 for getting his name mutated in the share of Hindustan Lever Company Limited. It is not in dispute that the said Probate Application No. 41 of 1994 filed by the applicant came to be dismissed in default on 27-08-2002. Respondent Nos.1 to 5 herein filed Civil Misc. Application No. 265 of 1999 before the Court of Joint Civil Judge, Senior Division, Ahmednagar under Section 372 of the Indian Succession Act. It is the case of the revision applicant that, he filed fresh Probate Application i.e. M.A. No. 2 of 2006 on 10-04-2006. Civil M.A. No. 265 of 1999 filed by respondent Nos. 1 to 5 herein, for getting succession certificate came to be allowed by the Civil Judge, Senior Division Ahmednagar. 25 cra38.09 15. Being aggrieved and dissatisfied by the judgment and order passed by the learned Civil Judge, Senior Division, Ahmednagar, in Civil M.A. No. 265 of 1999, revision applicant herein, preferred Regular Civil Appeal No. 197 of 2006 before the learned District Court, Ahmednagar. On 28-08-2006 M.A. No. 2 of 2006 for probate filed by the revision applicant came to be dismissed by the learned Civil Judge, Senior Division, Ahmednagar. 16. Being aggrieved by the said judgment and order passed by the Civil Judge, Senior Division, Ahmednagar, the revision applicant herein preferred Regular Civil Appeal No. 295 of 2006 before the District Court, Ahmednagar which is pending before the District Court, Ahmednagar. . Regular Civil Appeal No. 197 of 2006 filed by the revision applicant was dismissed by the learned District Court, Ahmednagar confirming the judgment and decree passed in M.A. No. 265 of 1999. 26 cra38.09 17. All the facts and dates mentioned hereinabove are not in dispute. It is the contention of the revision applicant that, when the Civil Judge, Senior Division, Ahmednagar decided C.M.A. No. 265 of 1999 on 27-06-2006, M.A. No. 2 of 2006 filed by the revision applicant for probate was pending before the Court of learned Civil Judge, Senior Division, Ahmednagar and therefore, both the