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Saturday, December 5, 2015

if a party is allowed to seek amendment in the grounds of appeal or writ petition after its disposal, it can lead to abuse of process of law, and the parties would not let the proceedings come to an end. As such, we are not inclined to allow the appellants to add grounds in writ petition by way of amendment, after its disposal. However, considering the peculiar facts and circumstances of the present case, we are of the view that to do complete justice between the parties, the matter needs to be remitted to the appellate court, as the reasons given by said court reversing the findings of the trial court, are not sufficient, and do not answer properly the issues raised in the appeals.

                 IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                  CIVIL APPEAL NOS.       9190-9191 OF 2015
              (Arising out of S.L.P. (C) Nos. 21952-53 of 2014)

Vishwanath Dadu Gurav
Since deceased through LRs & others          … Appellants

                                   Versus

Dattatray Ganapati Gurav                           …Respondent





                               J U D G M E N T


Prafulla C. Pant, J.


      These appeals are directed against order dated 14.3.2012  whereby  the
High Court of Judicature at Bombay has dismissed the Writ Petition No.  2576
of  2003,  affirming  the  order  dated  17.10.1997,  passed  by  the  Third
Additional District Judge, Kolhapur, in Regular  Civil  Appeal  No.  124  of
1991.  Appellants have further challenged order  dated  7.1.2014  passed  by
the High Court whereby Review Petition Stamp No.  33147  of  2012  (in  Writ
Petition No. 2576 of 2003) is dismissed.

We have heard learned counsel for the parties  and  perused  the  papers  on
record.

Briefly stated, one Chandrabai, issueless widow, resident of Khochi,  Taluka
Hatkanangale, District  Kolhapur,  died  on  2.12.1984.  She  was  owner  of
certain properties in the Village. An application was  moved  under  Section
276 of Indian Succession Act, 1925  before  Civil  Judge,  Senior  Division,
Kolhapur, by appellant Vishwanath Dadu Gurav  who  sought  probate  of  Will
dated 11.9.1984,  said  to  have  been  executed  by  Chandrabai.   In  said
application, which was registered as Civil Application No. 20 of  1989,  the
appellant pleaded that Chandrabai, widow of Annappa  Gurav  was  his  cousin
aunt, and she used to live with him.   Chandrabai  and  her  husband,  being
issueless, were maintained by the appellant till their death.   It  is  also
pleaded that a Will dated 11.9.1984 was executed in  a  sound  condition  of
mind by Chandrabai in  the  appellant’s  favour  in  respect  of  properties
mentioned in the application in presence of Dr.  B.A.  Herwade  (PW-2),  and
two witnesses, namely, Mahadev Ramngiri Gosavi (PW-4)  and  Dinkar  Shripati
Patil.  The deed was written  by  one  Sayed.   Out  of  the  two  attesting
witnesses Dinkar Shripati Patil died on 24.5.1985.  On the  basis  of  Will,
the appellant got his name entered in  the  revenue  record  in  respect  of
property in question, vide mutation entry No. 1637 dated 25.1.1985,  but  on
the objection  of  respondent  the  entry  was  cancelled.   Therefore,  the
petition for probate was filed by the appellant.

Respondent Dattatray Ganapati Gurav opposed  the  probate  application,  and
claimed that it was he who was looking after the deceased  till  her  death.
He denied that the deceased executed any Will in  favour  of  the  appellant
Vishwanath Dadu Gurav.   The  respondent  further  pleaded  that  he  is  in
possession of the property of the deceased.

The trial court, on the basis  of  the  pleadings  of  the  parties,  framed
following issues: -
Whether the deceased testator Chandrabai Annappa  Gurav  was  owner  of  the
property in question?

Whether the Will is valid and duly executed by testator in his favour?

Whether  the applicant entitled to the probate or letter  of  administration
as prayed?

To what order, if any, the applicant is entitled?


The parties filed their documentary evidence in support of their cases,  and
also led oral  evidence.   The  trial  court,  after  hearing  the  parties,
decided all the issues in favour of the applicant and directed  issuance  of
probate in the name of Vishwanath  Dadu  Gurav  in  respect  of  Will  dated
11.9.1984, executed by Chandrabai Annappa Gurav.

Aggrieved  by  said  judgment  and  order   dated   15.3.1991,   passed   on
Miscellaneous Civil Application No. 20 of 1989, original opponent  Dattatray
Ganapati Gurav filed Regular  Civil  Appeal  No.  124  of  1991  before  the
District Judge, Kolhapur, which was allowed  on  17.10.1997,  after  hearing
the parties, and  the  probate  granted  was  set  aside.   Thereafter  writ
petition No. 2576 of 2003 appears to  have  been  filed  on  behalf  of  the
original applicant on the  ground  that  the  appeal  was  not  maintainable
before the District Judge/Additional District Judge  (Kolhapur).   The  High
Court dismissed the writ petition on the ground that in  view  of  law  laid
down  in  Manohar  Bapurao  Sapre  v.  Bhaurao   Tukaramji   Shirbhate   and
Another[1], as the valuation of the property was only  Rs.25,000/-  as  such
the district court had appellate jurisdiction.  Hence  this  appeal  through
special leave.

However, the original applicant Vishwanath Dadu Gurav and original  opponent
Dattatray Ganapati Gurav have  died  and  their  legal  representatives  are
prosecuting the matter.

Learned counsel for the appellants argued that the High  Court  should  have
decided the writ petition on merits, and it erred  in  dismissing  the  writ
petition only on the ground  that  the  District  Judge/Additional  District
Judge had the jurisdiction to decide the appeal.

On the other hand, learned counsel for the respondents contended that  since
the order passed by the appellate court was challenged only  on  the  ground
of maintainability of appeal, as such, the High Court was  not  required  to
look into the merits of the case.

Undisputedly, the Will (Ex.-38) in question was unregistered,  but  evidence
was led to prove it on record by the  attesting  witness.  It  is  also  not
disputed that the respondents were not related to Chandrabai (deceased).  As
against said fact there is specific  plea  that  Chandrabai  (deceased)  was
cousin aunt of the original applicant Vishwanath Dadu Gurav,  and  she  used
to live with him.  PW 2 Dr. Herwade, who used to  visit  the  deceased  when
she was ill before her  death,  was  got  examined  on  behalf  of  original
applicant to  corroborate  the  fact  that  Chandrabai  used  to  live  with
Vishwanath Dadu Gurav.  Though trial court recorded  finding  in  favour  of
the applicant, but the appellate court reversed the same.

The writ petition filed on behalf of the original  applicant  was  dismissed
by the High Court holding that there was no infirmity  in  the  jurisdiction
of the appellate court.  Consequently, a Review Petition No. 33147  of  2012
appears to have been moved before the  High  Court  seeking  review  of  the
impugned order dated 14.3.2012 passed in Writ Petition  No.  2576  of  2003.
In the review petition it was pointed out by the  writ  petitioner  (present
appellant) that initially civil revision application No. 1187  of  1997  was
moved challenging the merits of the order passed  by  the  appellate  court,
but the same was dismissed, vide order dated 2.12.2002, by  the  High  Court
as not maintainable in the light of the amended provisions of Code of  Civil
Procedure.  As such, the writ petition was filed  by  the  appellant  before
the High Court challenging the maintainability  of  the  appeal  before  the
District Judge, and  inadvertently  the  grounds  on  merits  could  not  be
mentioned.   Raising  the  grounds  on  merits  against  the  order  of  the
appellate court, the order passed in the writ  petition  was  sought  to  be
reviewed.

No doubt, when there existed no ground of challenge on merits  in  the  writ
petition, High Court could not have adverted to it. We  are  also  conscious
of the fact that if a party is allowed to seek amendment in the  grounds  of
appeal or writ petition after its disposal, it can lead to abuse of  process
of law, and the parties would not let the proceedings come to  an  end.   As
such, we are not inclined to allow the appellants to  add  grounds  in  writ
petition by way of amendment, after its disposal.  However, considering  the
peculiar facts and circumstances of the present case, we  are  of  the  view
that to do complete justice between the parties,  the  matter  needs  to  be
remitted to the  appellate  court,  as  the  reasons  given  by  said  court
reversing the findings of the trial court, are not sufficient,  and  do  not
answer properly the issues raised in the appeals.

Therefore, without expressing any opinion as to final merits  of  the  case,
we direct the appellate  court  (Additional  District  Judge,  Kolhapur)  to
decide the appeals afresh after re-appreciating the evidence on record.




Accordingly, the present appeals stand disposed of.




                                                          ………………….....…………J.
                                                  [Dipak Misra]




                                                            .………………….……………J.
                                                          [Prafulla C. Pant]
New Delhi;
November 16, 2015.

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[1]    1995 (2) Mh.L.J. 336



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