Bombay High Court
Shaikh Mohammad Azahar Mohammad Gouse vs Ishwar Pralhad Dham And Ors on 24 April, 2025
Author: N. J. Jamadar
Bench: N. J. Jamadar
2025:BHC-AS:18856
Digitally signed
by SWAROOP
SWAROOP SHARAD -CRA-728-2023.DOC
SHARAD PHADKE
PHADKE Date:
2025.04.25
21:18:09 +0530
Arun Sankpal
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
CIVIL REVISION APPLICATION NO. 728 OF 2023
Shaikh Mohammad Azahar
Mohammad Gouse
Age: 41 years, Occu: Business
R/at: 1033 Saifi Lain Jama Masjid Camp
Dist- Pune 411 001. ..Applicant
Versus
1. Ishwar Pralhad Dham
Age: 38 years, Occu: Service
R/at: Tarwade Wasti, Solai Complex,
Desai Hospital Road, Mohammad Wadi,
Hadapsar, Pune.
2. Ranjit Janu Burte
Age: 37 years Occu: Service
R/at: 1009, Alksa App. Mohammad
Wadi Road, Hadapsar,
Pune.
3. Kishor Ramchandra Khare
Age: 60 years Occu: Chartered Accountant
R/at: Shree Samarth Sadan, Room No.2,
Dr. D.D. Sathe Marg, Girgaum,
Mumbai 400 004.
4. Bharat Damodar
Age: 76 years, Occu: Advocate and Solicitor
R/at: 3B, Jeevan Asha 60 A, Peddar Road,
Mumbai 400 026.
5. Firoz Gulam Hussain Shaikh
Age: Adult Occu: NA
R/at: Gultekdi, Pune 411 037.
1/28
::: Uploaded on - 25/04/2025 ::: Downloaded on - 26/04/2025 11:22:04 :::
-CRA-728-2023.DOC
6. Adv S. B. Bhele
Age: Adult Occu: Advocate
Dist: Pune.
7. Dr. Ramnath Jadhav,
Age: Adult, Occu: Doctor
R/at: Near Bhaji Market, Wadgao Sheri,
Pune 411 014.
Respondents
Mr. Drupad S. Patil, with Namitkumar Pansare, for the Applicant.
Mr. Pramod Patil, i/b Uday Gaikwad, for Respondent No.1
Mr. Govind B. Solanke, for Respondent Nos. 3 & 4.
CORAM: N. J. JAMADAR, J.
JUDGMENT RESERVED ON : 8th JANUARY 2025.
JUDGMENT PRONOUNCED ON : 24th APRIL 2025.
JUDGMENT:
1. This Revision Application is directed against an Order dated 19 th
October 2023 passed by the learned Civil Judge, Senior Division, Pune
in CMA No. 645 of 2022, whereby an Application (Exhibit “29”)
preferred by the applicant-respondent no.2 under the provisions of
Order VII Rule 11 of the Code of Civil Procedure 1908 (“the Code”),
came to be rejected.
2. Ashok Chokshi (the Testator) was endowed with movable and
immovable properties. The Testator passed away on 13 th November
2016, purportedly unmarried. Respondent Nos. 3 and 4 herein had
preferred an Application for grant of Probate bearing CMA No. 645 of
2/28
::: Uploaded on – 25/04/2025 ::: Downloaded on – 26/04/2025 11:22:04 :::
-CRA-728-2023.DOC
2022, in respect of the purported last Will and Testament of the Testator
dated 18th April 2013.
3. The applicant appeared in the said Probate Application and filed
a Caveat. In view of the objection to the grant of Probate, the said
Application was converted into a Suit being SCS No. 1790 of 2021.
Thereupon, the Applicant-Defendant No.9 in the said Suit filed a Say
and Counter-claim in the said Suit. The Applicant propounded a
purported Will dated 28th October 2016, under which the Testator had
appointed the Applicant as an Executor. The Applicant thus prayed for
grant of Probate in respect of the said Will dated 28th October 2016.
4. It seems the plaintiffs conceded that the Will propounded by the
Applicant dated 28th October 2016 was the last Will and Testament of
the Testator and the earlier Will dated 18 th April 2013, propounded by
them, stood revoked. Thus, by a Judgment and Order dated 16 th
November 2021, the learned Civil Judge was persuaded to grant
Probate of the Will dated 28th October 2016 to the Applicant.
5. Respondent No.1 herein filed Civil Misc Application seeking
revocation of the Probate under Section 263 of the Indian Succession
Act 1925. Respondent No.1 claimed to have worked with the Testator as
a housekeeper and caretaker. Under the Will dated 18 th April 2013,
respondent no.1 was a beneficiary. Respondent no.3, who was
appointed as the Executor under the said Will, gave assurances to
3/28
::: Uploaded on – 25/04/2025 ::: Downloaded on – 26/04/2025 11:22:04 :::
-CRA-728-2023.DOC
respondent no.1 that after the Court passes an Order granting Probate
the bequest in favour of respondent no.1 would paid. Asserting that the
Applicant obtained the Probate on the basis of false and forged
documents, the Respondent No.1 prayed for revocation or annulment of
the Probate granted in favour of the Applicant.
6. In the said Application for revocation of Probate, the applicant
filed an Application for rejection of the said Application purportedly
under Order VII Rule 11 of the Code primarily on the ground that once
the Application for Probate is converted into a Suit, the decree passed
by the Civil Court granting Probate is amenable to appeal under the
provisions of the Code and an Application for revocation of the Probate
is not tenable.
7. The said Application was resisted by respondent no.1.
8. The learned Civil Judge was of the view that in terms of Section
263 of the Indian Succession Act, a party could ask for revocation or
annulment of Probate where it was obtained fraudulently either by
making a false assertion or by concealing material facts. Since
respondent no.1 claimed that the purported Will dated 28 th October
2016 is forged and fabricated document, on the strength of which the
Probate was obtained, an Application for revocation of Probate was
tenable.
4/28
::: Uploaded on – 25/04/2025 ::: Downloaded on – 26/04/2025 11:22:04 :::
-CRA-728-2023.DOC
9. Being aggrieved, the applicant has invoked the revisional
jurisdiction of this Court.
10. On 18th December 2023 while issuing notice this Court had
framed the following issues which arise for determination.
“1) Whether, provisions of Order 7 Rule 11 of the Code
of Civil Procedure, 1908 are applicable to the proceedings
for revocation of probate under Section 263 of the Indian
Succession Act, 1925.
2) What are the parameters for applying Section 141 of
the Code of Civil Procedure, 1908 to proceedings under
Section 263 of the Indian Succession Act, 1950 in view of
judgment in the case of Nalini Navin Bhagwati Vs
Chadravadan M. Mehta reported in (1997) 9 SCC 689.”
11. An affidavit in reply has been filed on behalf of respondent no.1.
12. I have heard Mr. Drupad Patil, the learned Counsel for the
applicant, Mr. Pramod Patil, the learned Counsel for respondent no.1
and Mr. Govind Solanke, the learned Counsel for respondent nos. 3 and
4, at some length. With the assistance of the learned Counsel for the
parties, I have perused the material on record including the Judgment
and Order passed in SCS No. 1790 of 2021.
13. In the light of the issue of maintainability of an application for
rejection of a proceeding for revocation of probate, under Order VII
Rule 11 of the Code, it may be apposite to first note the submissions
canvassed by Mr. Pramod Patil, the learned counsel for the respondent
5/28
::: Uploaded on – 25/04/2025 ::: Downloaded on – 26/04/2025 11:22:04 :::
-CRA-728-2023.DOC
no. 1. Placing heavy reliance on the judgment of Supreme Court in the
case of Nalini Navin Bhagwati (supra), Mr. Pramod Patil would urge
that the controversy is no longer res integra. In the case of Nalini Navin
Bhagwati (supra), the Supreme Court has in terms enunciated that the
application for revocation of probate or letters of administration need
not be treated as a suit as contemplated under Section 295 of the Indian
Succession Act and that the procedure required under Section 295 need
not be adopted for disposal of the application filed under Section 263
for revocation of the probate or letters of administration. It would be
treated as a Miscellaneous Application and disposed of by the District
Judge either summarily or by recording evidence, according to the fact
– situation of the given case.
14. Mr. Pramod Patil would urge that once the proceeding under
Section 263 of the Indian Succession Act is construed as a miscellaneous
application, and not a substantive suit, recourse to the provisions
contained in Order VII Rule 11 of the Code is not at all warranted. The
said provisions are clearly inapplicable to Miscellaneous Application.
15. Support sought to be drawn to sustain an application for rejection
of such proceeding from the provisions contained in Section 141 of the
Code, according to Mr. Pramod Patil, is unsustainable. The provisions
contained in Section 141 of the Code are enabling in nature and do not
mandate that the procedure provided in the Code be followed in all
6/28
::: Uploaded on – 25/04/2025 ::: Downloaded on – 26/04/2025 11:22:04 :::
-CRA-728-2023.DOC
proceedings before the Civil Court. Mr. Pramod Patil submitted that
Section 141 of the Code makes it abundantly clear that the procedure
prescribed in the Code be followed as far as it can be made applicable.
The provisions contained in Order VII Rule 11 of the Code, according to
Mr. Pramod Patil, cannot at all be made applicable to a proceeding
under Section 263 of the Indian Succession Act as it confers a statutory
right upon an aggrieved person to seek revocation of probate or letters
of administration. Such statutory right cannot be interdicted by filing an
application under Order VII Rule 11 of the Code. Lest the provisions
contained in Section 263 of the Indian Succession Act would be
rendered nugatory.
16. To buttress the aforesaid submission, Mr. Pramod Patil placed
reliance on an order passed by a learned Single Judge of this Court in
Civil Revision Application No. 481 of 2023 dated 10 th November 2023,
wherein it was held in clear terms that the provisions contained under
Order VII Rule 11 of the Code do not apply to an application for
revocation of heirship certificate issued under the provisions of the
Bombay Regulation Act, 1827
17. Mr. Drupad Patil, the learned counsel for the applicant joined the
issue by canvassing multi-pronged from submissions. Firstly, Mr. Drupad
Patil would urge, a plain reading of the provisions contained in Section
141 of the Code in conjunction with the provisions contained in Section
7/28
::: Uploaded on – 25/04/2025 ::: Downloaded on – 26/04/2025 11:22:04 :::
-CRA-728-2023.DOC
295 and 263 of the Indian Succession Act, does not rule out the
applicability of the provisions contained in Order VII Rule 11 of the
Code to a proceeding for revocation of the probate or letters of
administration, under Section 263 of the Indian Succession Act, 1925.
Mr. Drupad Patil would urge, all the necessary factors to make the
procedure contained in the Code applicable to a proceeding for
revocation of probate or letters of administration obtain in a situation of
the present nature. Firstly, the proceeding under Section 263 of the Act,
1925 falls within the ambit of the term ‘Proceedings” under Section 141
of the Code. Secondly, the said proceeding is undoubtedly before a Civil
Court. Thirdly, the qualifying expression in Section 141 namely “as far
as it can be made applicable” cannot be so construed as to make the
provisions of the Code inapplicable to such proceeding, in the absence
of any indication to the contrary.
18. Mr. Drupad Patil further submitted that the reliance on the
judgment in the case of Nalini Navin Bhagwati (supra) is of no
assistance to respondent no. 1. The core question that arose for
consideration in the said case was, can an application filed under
Section 263 of the Act, 1925 be treated as a contentious suit as
envisaged by Section 295 of the Act, 1925. The decision in the case of
Nalini Navin Bhagwati (supra), according to Mr. Durpad Patil, cannot be
said to be an authority for the proposition that an application under
8/28
::: Uploaded on – 25/04/2025 ::: Downloaded on – 26/04/2025 11:22:04 :::
-CRA-728-2023.DOC
Order VII Rule 11 of the Code for rejection of the proceeding under
Section 263 of the Act, 1925, is not at all maintainable.
19. Secondly, Mr. Drupad Patil submitted that this very question has
been dealt with by another learned Single Judge of this Court in the
case of Vijay Shivram Pathare Vs. City Corporation Limited and Anr 1,
wherein, an objection to the tenability of an application for rejection of
a proceeding under Section 263 of the Act 1925, based on the decision
of the Supreme Court in the case of Nalini Navin Bhagwati (supra) was
repelled by the learned Single Judge. Though the said decision in the
case of Vijay Shivram Pathare (supra) was rendered prior in point of
time, the same was not brought to the notice of the learned Single
Judge in the case of Hiraman Shankar Khanavkar (supra) and,
therefore, the subsequent decision in the case of Hiraman Shankar
Khanavkar (supra) without noticing an earlier decision of the co-
ordinate bench cannot command precedential value, submitted Mr.
Drupad Patil.
20. Thirdly, laying emphasis on the object of the provisions contained
in Order VII Rule 11 of the Code, Mr. Drupad Patil would urge if a
wholly sham and vexatious proceeding under Section 263 of the Act
1925 is filed, it cannot be said that the Court has no power to dismiss
such proceeding at the very threshold.
1 (2023) SCC OnLine Bom 721.
9/28
::: Uploaded on – 25/04/2025 ::: Downloaded on – 26/04/2025 11:22:04 :::
-CRA-728-2023.DOC
21. Lastly, Mr. Drupad Patil placed reliance on a judgment of
Supreme Court in the case of Subal Paul Vs. Malina Paul and Anr, 2
wherein in the context of the tenability of an appeal against judgment
delivered by the Single Judge under Section 299 of the Act, 1925 before
the Division Bench, the Supreme Court had enunciated that the order
passed by the Court under Section 299 of the Act, 1925 though may not
be stricto sensu a decree within the meaning of Section 2(2) of the
Code of Civil Procedure Code but it is beyond any cavil that the same
would be a judgment within the meaning of Section 2(9) thereof.
22. Drawing analogy Mr. Drupad Patil would urge, when a
proceeding under Section 263 of the Act, 1925 is filed to revoke a
probate or letters of administration based on such judgment, the non-
existence of the cause of action or any other bar to the tenability of such
application, must be dealt with at the threshold and such a proceeding
can be rejected by invoking the power under Order VII Rule 11 of the
Code.
23. The aforesaid submissions now fall for consideration.
24. To begin with, it may be necessary to note the nature of the
proceeding under Section 263 of the Act, 1925. Section 263 reads as
under:
“263. Revocation or annulment for just cause.–
2 (2003) 10 SCC 361.
10/28
::: Uploaded on – 25/04/2025 ::: Downloaded on – 26/04/2025 11:22:04 :::
-CRA-728-2023.DOC
The grant of probate or letters of administration may be revoked or
annulled for just cause.
Explanation. –Just cause shall be deemed to exist where–
(a) the proceedings to obtain the grant were defective in
substance; or
(b) the grant was obtained fraudulently by making a false
suggestion, or by concealing from the Court something material
to the case; or
(c) the grant was obtained by means of an untrue allegation
of a fact essential in point of law to justify the grant, though
such allegation was made in ignorance or inadvertently; or
(d) the grant has become useless and inoperative through
circumstances; or
(e) the person to whom the grant was made has wilfully and
without reasonable cause omitted to exhibit an inventory or
account in accordance with the provisions of Chapter VII of this
Part, or has exhibited under that Chapter an inventory or
account which is untrue in a material respect.
25. As the text of aforesaid section indicates the grant of Probate or
Letters of Administration may be revoked if the proceedings to obtain
the grant were, “defective in substance”, or the grant was obtained
fraudulently by making a false suggestion or by suppressing from the
Court something material to the case or if the grant was obtained by
means of untrue allegations or if the grantee has willfully and without
reasonable cause omitted to exhibit an inventory or account in
accordance with the provisions of Chapter VII of Part IX.
26. Section 263 of the Act vests a judicial discretion in the Court to
revoke or annul the grant for “just cause”. The Explanation to Section
263 enumerates the circumstances in which the Court may legitimately
11/28
::: Uploaded on – 25/04/2025 ::: Downloaded on – 26/04/2025 11:22:04 :::
-CRA-728-2023.DOC
draw an inference that a just cause to revoke the grant has been made
out. It is trite, the onus rests on the person who seeks the revocation of
the grant to show that a just cause for revocation exists.
27. Keeping in view the aforesaid nature of the proceeding under
Section 263 of the Act, 1925 the provisions contained in Section 141 of
the Code deserve to be noted. It reads as under:
“141. Miscellaneous proceedings .-
The procedure provided in this Code in regard to suits shall
be followed, as far as it can be made applicable, in all
proceedings in any Court of civil jurisdiction.
[Explanation .-In this section, the expression “proceedings”
includes proceedings under Order IX, but does not include
any proceeding under article 226 of the Constitution.]
28. A plain reading of the aforesaid section would indicate that the
procedure in the Code in regard to suits shall be followed, as far as it
can be made applicable, in all proceedings in any Court of civil
jurisdiction. By insertion of the Explanation, it has been clarified that
the expression “proceedings” includes proceedings under Order IX of the
Code, but does not include any proceeding under Article 226 of the
Constitution.
29. For the applicability of the procedure provided in the Code two
conditions are primarily required to be satisfied. First, it ought to be a
“proceeding” within the meaning of Section 141 of the Code. Second,
such proceeding ought to be before any court of civil jurisdiction. If
12/28
::: Uploaded on – 25/04/2025 ::: Downloaded on – 26/04/2025 11:22:04 :::
-CRA-728-2023.DOC
these two conditions are satisfied then the provisions in the Code can be
made applicable to such proceeding before the civil court, as far as it
can be made applicable. A cumulative reading of Section 4 and Section
141 of the Code would thus imply that unless there is a special form of
procedure prescribed by or under any other law for the time being in
force for a proceeding before the civil court, ordinarily, the procedure
provided by the Code can be made applicable as far as possible.
30. The expression, “proceeding” is defined in Black’s Law Dictionary
as, “The regular and orderly progression of a lawsuit, including all acts
and events between the time of commencement and the entry of
judgment.”
31. The expression “Proceedings” in Section 141 of the Code appears
to be of wide connotation. The Explanation, appended to Section 141
clearly indicates that it is an inclusive definition. What is expressly
included in the Explanation is not exhaustive of the term,
“proceedings”, rather illustrative and inclusive. Thus a proceeding filed
under Section 263 of the Act 1925 for revocation of probate or letters of
administration falls within the ambit of the term “proceeding” under
Section 141 of the Code.
32. What is the import of the term “a court of civil jurisdiction” under
Section 7 of the Maharashtra Civil Courts Act 1869 (“the Act of 1869”).
The District Court shall be the principal Court of original civil
13/28
::: Uploaded on – 25/04/2025 ::: Downloaded on – 26/04/2025 11:22:04 :::
-CRA-728-2023.DOC
jurisdiction in the District, within the meaning of the Code of Civil
Procedure. Under Section 28A of the said Act of 1869, the High Court
may by general or special order invest any Civil Judge within such local
limits and subject to such pecuniary limitation as may be prescribed in
such order, with all or any of the powers of a District Judge or a District
Court as the case may be under the Indian Succession Act 1925. In
exercise of the powers conferred by Section 28A(1) of the said Act of
1869, the High Court has invested all Civil Judges (Senior Division),
with all the powers of a District Judge to take cognizance of any
contested proceeding under Indian Succession Act 1925, arising within
the local limits of their respective jurisdiction that may be transferred to
them by their respective District Judges (See paragraph 305 Chapter
XIV of the Civil Manual).
33. The aforesaid provisions would thus indicate that a court dealing
with the matters under the Indian Succession Act, 1925 is the court of
civil jurisdiction. Thus, both the Tests of the “proceeding”, and “court of
civil jurisdiction” stand satisfied in relation to a proceeding under
Section 263 of the Act of 1925.
34. This takes to me to the question of the extent of the application of
the provisions of Code, especially, Order VII Rule 11 to a proceeding
under Section 263 of the Act of 1925, in the context of the qualifying
expression , “as far as it can be made applicable.” The sheet anchor of
14/28
::: Uploaded on – 25/04/2025 ::: Downloaded on – 26/04/2025 11:22:04 :::
-CRA-728-2023.DOC
the submission of Mr. Pramod Patil, was the decision in the case of
Nalini Navin Bhagwati (supra).
35. In the said case the probate was granted on 16 th January 1967.
The Appellants therein filed an Application to revoke the Probate. A
prayer to convert the said Revocation Application into a Suit was
rejected by the City Civil Court. The High Court directed to treat the
Application for Revocation as a Suit filed under Section 295 of the Act
of 1925. On Appeal, the Supreme Court was confronted with a
question; whether the Application for Revocation of the Probate would
be treated as a Suit under Section 295 of the Act of 1925 ?
36. The observations of the Supreme Court in paragraph 7 are
material and, hence, extracted below.
“7. But when the grant of probate or letter of
administration is sought to be revoked, it is not clear what
nomenclature would be ascribed to it and what procedure
would be adopted for its disposal. Take for instance a
situation when the suit is decreed ex parte. Order IX Rule
13 provides for making of an application to set aside the
decree on proof of certain grounds ex parte decree gets set
aside. Similarly when the suit was dismissed for default,
under Order IX Rule 9 an application would be filed and
on proof of the circumstances for absence, the order
would be set aside and suit would get restored. Similarly,
when probate or letter of administration is granted and it
is sought to be revoked, Section 263 provides for the
grounds on the basis of which it would be revoked. When
the grounds are sought to be proved, the question is15/28
::: Uploaded on – 25/04/2025 ::: Downloaded on – 26/04/2025 11:22:04 :::
-CRA-728-2023.DOC
whether such an application would be treated to be a suit?
We are of the considered view that an application to
revoke probate or letter of administration would be
treated as miscellaneous application and may be disposed
of on the fact situation in an appropriate case either
summarily or after recording evidence. The application to
revoke the probate or letter of administration thus may be
disposed of by the District Judge either summarily or in a
given situation where it requires proof of the facts by
adduction of evidence by the parties by recording such
evidence as is adduced by the parties. The burden will be
on the applicant to prove the facts to revoke the probate
or letter of administration and the respondent who
obtained probate or letter of administration has to
disprove the contentions of the applicant. In that
situation, based upon the given facts situation, it will be
for the Court to dispose it of either summarily or after
giving opportunity to both the parties to adduce evidence
and consideration thereof. Under these circumstances, it is
not necessary that the application for revocation of the
probate or letter of administration would be treated as a
suit as contemplated under Section 295 of the Act. If the
contention of Shri Puri merits acceptance, then any
proceedings under the application to revoke the probate
or letter of administration should be treated as a suit: the
applicant cannot prove the will and at the same time
cannot contend that the will was not validly executed.
Therefore, it would be self contradictory to adopt such a
procedure. Accordingly, we are of the view that the
procedure required under Section 295 need not be
adopted for disposal of the application filed under Section
263 for revocation of the probate or the letter of16/28
::: Uploaded on – 25/04/2025 ::: Downloaded on – 26/04/2025 11:22:04 :::
-CRA-728-2023.DOC
administration. It would be treated as miscellaneous
application and disposed of as indicated earlier according
to the given fact situation. In fact, the Bombay High Court
came to consider the question, not directly on this issue
but in an analogous situation in Narbheram Jivaram
Purohit vs Jevallabh Harijivan (1933) 35 Bom LR 998.
Therein, the learned single Judge had held that the proper
procedure for revocation of probate granted by the High
Court is by way of a petition filed in the testamentary and
intestate jurisdiction of the Court, and not by way of suit
in its Ordinary Original Civil Jurisdiction. In other words,
the Court indicated that it need not be treated as a suit on
the original side of the Court but it could be disposed of as
an application independent of the suit. Thus we hold that
the High Court was clearly in error in reaching the
conclusion that it should be treated as a suit and disposed
of under Section 295.” (emphasis supplied)
37. The Supreme Court has in terms enunciated that the Application
for Revocation of Probate or Letters of Administration would be treated
as Miscellaneous Application and may be disposed either summarily or
after recording the evidence. It is not necessary that a proceeding to
revoke the Probate or Letters of Administration would be treated as a
Suit as prescribed under Section 295 of the Act of 1925.
38. The question that, however, wrenches to the fore and remains to
be answered is, whether the aforesaid pronouncement can be construed
to render the provisions of Order VII Rule 11 of the Code inapplicable to
17/28
::: Uploaded on – 25/04/2025 ::: Downloaded on – 26/04/2025 11:22:04 :::
-CRA-728-2023.DOC
a proceeding filed under Section 263 of the Act of 1925, for the reason
that the said proceeding is not to be treated as a Suit?.
39. On a fair reading of the aforesaid observations of the Supreme
Court, in my considered view, such an inexorable inference is not
deducible. The aforesaid decision is an authority for the proposition that
such a proceeding under Section 263 of the Act 1925 need not be
treated as a Suit. It, however, does not necessarily justify a further
inference that the provisions contained in Order VII Rule 11 of the Code
need not be made applicable to such proceeding. The submission that if
the proceeding is not treated as a Suit, the provisions contained in
Order VII Rule 11, which empowers the Court to reject the Plaint, are
not attracted, appears to be fallacious.
40. In the case of Vijay Shivram Pathare (supra), a learned Single
Judge of this Court, after adverting to the aforesaid pronouncement,
observed as under:
“18. In my reading of the decision, before the Apex
Court, the issue of applicability of the provisions of
Civil Procedure Code 1908 was not under
consideration. The Apex Court was dealing with a
fact situation wherein an application was filed to
revoke the probate and prayer was made to convert
the application into a regular suit. It will be
worthwhile to note that the Apex Court has
observed in paragraph 7 that the application to
revoke the probate or letter of administration thus18/28
::: Uploaded on – 25/04/2025 ::: Downloaded on – 26/04/2025 11:22:04 :::
-CRA-728-2023.DOC
may be disposed of by the District Judge either
summarily or in a given situation where it requires
proof of the facts by adducing evidence by the
parties by recording such evidence as is adduced by
the parties. In my opinion, the decision of Apex
Court is not an authority for the proposition that the
provisions of Civil Procedure Code 1908 are not
applicable to an application for revocation.”
41. The reliance placed by Mr. Pramod Patil on the order in the case
of Hiraman Shankar Khanavkar (supra) does not seem to advance the
cause of the submission on behalf of Respondent No.1. Firstly, the said
judgment was rendered in a slightly different fact-situation. In the said
case an Application for Revocation of Heirship Certificate was filed and
the Applicants therein had sought rejection of the said Application for
Revocation, under Order VII Rule 11 of the Code. It is trite, the grant of
Heirship Certificate does not determine the proprietary rights of the
parties. Heirship Certificate does not confer status of an heir. It merely
recognize such status. Secondly, in the said case, the decision of this
Court in the case of Vijay Shivram Pathare (supra) was not considered.
42. I find substance in the submission of Mr. Drupad Patil that since
the decision in the case of Vijay Shivram Pathare (supra) was rendered
prior in point of time, the co-ordinate Bench in Hiraman Shankar
Khanavkar (supra) was bound by the said decision and thus the
19/28
::: Uploaded on – 25/04/2025 ::: Downloaded on – 26/04/2025 11:22:04 :::
-CRA-728-2023.DOC
decision in the case of Hiraman Shankar Khanavkar (supra), does not
command precedential value.
43. Various provisions of the Code have been held applicable to the
proceedings under the Act of 1925 and other special enactments. In the
case of Deubai Tukaram Pakhare & Ors Vs Muktabai Tukaram Pakhare &
Ors3 the provisions contained in order VI Rule 17 of the Code were held
applicable to the proceeding under Section 373 of the Act of 1925. In
the case of Jairam Gurnani Vs Shanta Gurnani,4 the Delhi High Court
has held that the provisions contained in the Code were applicable to
the proceedings under the Guardians and Wards Act, in view of the
provisions contained in Sections 4 and 141 of the Code.
44. The matter can be looked at form a slightly different perspective.
The object of the provisions contained in Order VII rule 11 is to nip in
the bud a vexatious and abortive proceeding. Its object is to save the
precious judicial time which would otherwise be wasted in dealing with
a proceeding which is ex-facie sans cause of action or barred by any
provision of law. It serves the cause of public justice by throwing out
sham and unwarranted proceeding.
45. In the case of Azhar Hussain Vs Rajiv Gandhi, 5 the purpose of
conferment of power to reject the Plaint was expounded as under:
3 2000 (1) MhLJ 511.
4 ILR (1979) I Delhi 99.
5 1986 Supp SCC 315.
20/28
::: Uploaded on – 25/04/2025 ::: Downloaded on – 26/04/2025 11:22:04 :::
-CRA-728-2023.DOC
“12. …The whole purpose of conferment of such powers
is to ensure that a litigation which is meaningless, and
bound to prove abortive should not be permitted to
occupy the time of the court, and exercise the mind of the
respondent. That sword of Damocles need not be kept
hanging over his head unnecessarily without point or
purpose. Even in an ordinarily civil litigation, the court
readily exercises the power to reject a plaint, if it does not
disclose any cause of action.”
46. In the case of Dahiben Vs Arvindbhai Kalyanji Bhanusali (Gajra)
Dead Through Legal Representatives And Ors, 6 the object of Order VII
Rule 11 was enunciated as under:
“The underlying object of Order 7 Rule 11(a) is that if in
a suit, no cause of action is disclosed, or the suit is
barred by limitation under Rule 11(d), the court would
not permit the plaintiff to unnecessarily protract the
proceedings in the suit. In such a case, it would be
necessary to put an end to the sham litigation, so that
further judicial time is not wasted.”
47. If a proceeding for Revocation under Section 263 of the Act of
1925 is shown to be ex-facie without any locus or cause of action or
otherwise barred by law, it cannot be said that the Court is denuded of
the power to stop such proceeding at the threshold and must decide
such proceeding after a long drawn hearing or trial. Such an
interpretation would defeat the very object of investing jurisdiction in
6 (2020) 7 SCC 366.
21/28
::: Uploaded on – 25/04/2025 ::: Downloaded on – 26/04/2025 11:22:04 :::
-CRA-728-2023.DOC
Testamentary Court to revoke the Probate or Letters of Administration
for a just cause.
48. It is well recognized that the period of limitation prescribed in
Article 137 of the Schedule to the Limitation Act 1963 applies to a
proceeding for revocation of the Probate or Letters of Administration
under Section 263 of the Act of 1925. If a proceeding for revocation of
the Grant of Probate or Letters of Administration is shown to be clearly
beyond the period of limitation from the date of the accrual of the cause
of action, such a proceeding must be rejected at the threshold. The
provisions contained in Order VII Rule 11(d) would have clear
application to such a situation. Merely because the proceeding under
Section 263 of the Act of 1925 partakes the character of Miscellaneous
proceeding and not a Suit, it cannot be insulated from the operation of
Order VII Rule 11.
49. A profitable reference in this context may be made to the
judgment of the Supreme Court in the case of Ramesh Nivrutti Bhagwat
Vs Dr Surendra Manohar Parakhe, 7 wherein it was enunciated that the
residuary entry Article 137 in the Schedule to the Limitation Act, 1963
covers proceedings for Revocation of the Probate or Letters of
Administration and the Petition for Revocation of Letters of
Administration filed beyond the said period of three years was clearly
7 (2020) 17 SCC 284.
22/28
::: Uploaded on – 25/04/2025 ::: Downloaded on – 26/04/2025 11:22:04 :::
-CRA-728-2023.DOC
time barred and, thus, was rightly rejected by the Courts by allowing
the Application for rejection of the said Petition for Revocation.
50. The conspectus of the aforesaid consideration is that there is no
justifiable reason not to apply the provisions contained in Order VII
Rule 11 of the Code to a proceeding under Section 263 of the Act of
1925. I am, therefore, impelled to held that the provisions contained in
Order VII Rule 11 are applicable to a proceeding for Revocation of
Probate.
51. As far as the parameters for applying Section 141 of the Code to
the proceeding under Section 263 of the Act 1925, in my view, the law
enunciated by the Supreme Court in the case of Nalini Navin Bhagwati
(supra) illuminates the path. If the Court decides to determine the
proceeding under Section 263 of the Act 1925 in a summary manner, all
the provisions of the Code do not become applicable to such a
proceeding. On the other hand, if in the given fact-situation, the Court
considers that the issues are required to be determined by providing an
opportunity to adduce evidence, then, the provisions of the Code which
govern the procedure of trial, wherein evidence is recorded, can be
made applicable. No straight jacket formula as to the applicability of the
particular provision of the Code can be laid down. The applicability of
the provisions of the Code to a proceeding under Section 263 of the Act
of 1925 would hinge upon the fact-situation of the given case.
23/28
::: Uploaded on – 25/04/2025 ::: Downloaded on – 26/04/2025 11:22:04 :::
-CRA-728-2023.DOC
52. This takes me to the merits of the matter. As noted above, the
rejection of the Application for Revocation of Probate was sought on the
ground that the decree passed by the Civil Court granting Probate is
amenable to an Appeal under the provisions of the Code and, thus, the
Application for Revocation was not tenable.
53. The submission is required to be stated to be repelled. Section
263 of the Act of 1925, as noted above, empowers the Testamentary
Court to revoke the Grant of Probate or Letters of Administration for a
just cause. The said remedy is independent of the right of an aggrieved
party to prefer an Appeal against the order granting Probate. The
existence of the remedy of Appeal, does not take away the right of an
aggrieved person to seek revocation of Probate or Letters of
Administration, provided he succeeds in establishing a just cause for the
same.
54. In the case at hand, the civil Court has granted the Probate by a
judgment and order dated 16 th November 2021. The Application for
Revocation of the Probate came to be filed on 15 th March 2022. The
Application is, evidently, within the statutory period of limitation.
55. It is trite, while considering the Application for rejection of the
Plaint, the Court can only examine the averments in the Plaint and the
documents annexed thereto. The defence of the Defendant is totally
irrelevant. If on a meaningful reading of the Plaint, the Court finds that
24/28
::: Uploaded on – 25/04/2025 ::: Downloaded on – 26/04/2025 11:22:04 :::
-CRA-728-2023.DOC
there is no cause of action or the relief claimed is otherwise barred by
any law, then only a Plaint can be rejected.
56. On the aforesaid touchstone, if the averments in the Application
for Revocation of the Probate are considered, it becomes evident that
the Applicant has made assertion which prima facie fall within the
ambit of Clauses (b) and (c) of the Explanation to Section 263 of the
Act of 1925.
57. The peculiar circumstances in which the Probate came to be
granted deserve to be noted. Initially, Respondent Nos. 3 and 4 herein
had preferred an Application for grant of Probate propounding a
registered Will of the Testator dated 18th April 2013. The Applicant filed
objection and a counter-claim. The Applicant propounded the Will
dated 28th October 2016. It seems, later on, Respondent Nos. 3 and 4,
the Plaintiffs in the Probate Proceeding, conceded that the Will
propounded by the Applicant dated 28th April 2016 was the last Will
and Testament of the Testator and the prior Will dated 18 th April 2013
stood revoked. From the perusal of the order passed by the learned
Civil Judge dated 16th November 2021 it becomes evident that there
was no contest as the contents of the counter-claim and the evidence
adduced by Applicant-Defendant No.9 and his witnesses had gone
unchallenged.
25/28
::: Uploaded on – 25/04/2025 ::: Downloaded on – 26/04/2025 11:22:04 :::
-CRA-728-2023.DOC
58. It is in the aforesaid context the Respondent No.1 alleges that the
said Probate was obtained in collusion by the Applicant, Respondent
Nos. 3 and 4, the propounder of the prior Will, and Respondent No.2,
Ranjit Burte, who was shown as the attesting witness.
59. A perusal of the Will dated 28 th October 2016, prima facie,
indicates that there is a reference to the nephews and nieces of the
Testator who were then residing in America. The Application preferred
by Respondent Nos. 3 and 4 indicates that those heirs of the testator
were impleaded as Defendant Nos. 2 to 7 to the said Application. It
becomes abundantly clear that neither the Applicant herein, nor
Respondent Nos. 3 and 4, nor for that matter, Respondent No.2, Ranjit
Burte, who had also propounded another Will dated 25 th January 2016,
were related to the Testator. All claimed to have worked for the Testator
in one or the other capacity. This backdrop of none of these parties
being even remotely related to the Testator and, conversely, there were
other heirs of the Testator, who were stated to be residing in America
also needs to be kept in view.
60. In the aforesaid backdrop the averments in the application for
Revocation were required to be appreciated albeit prima facie, to
ascertain whether a case for rejection of the application, was made out.
Apart from the allegations that the Will dated 28th October 2016
propounded by the Applicant is false and fabricated, the Respondent
26/28
::: Uploaded on – 25/04/2025 ::: Downloaded on – 26/04/2025 11:22:04 :::
-CRA-728-2023.DOC
No.1 has specifically asserted that in the very Will, the Testator
purportedly made grave allegations against Ranjit Burte, Respondent
No.2 and, yet, the said Ranjit Burte has been shown to have attested the
said Will. Respondent No.1 has also alleged that to the said Will a copy
of the driving license of Ranjit Burte is annexed; which shows that the
said license was issued on 6th July 2017 well after the purported
execution of the said Will on 28th October 2016. The Testator passed
away on 13th November 2016; under two weeks of the execution of the
Will in question. The intrinsic evidence of the Will also indicates that
the Testator was suffering from Alzheimer and mental illness since the
year 2002.
61. The assertions in the application for Revocation of the Probate are
required to be appreciated in the light of the all these factors. It is more
so, for the reason that a Testamentary Court is a Court of conscience. If
viewed through this prism, it would be rather difficult to draw an
inference that the Application for revocation is devoid of substance and
deserves to be rejected at threshold. It is an altogether different matter,
whether the Applicant would succeed in demonstrating that a just cause
for Revocation of probate is made out. That would be a matter for
consideration by the Trial Court by adopting the procedure which it
considers appropriate in the fact-situation of the case.
27/28
::: Uploaded on – 25/04/2025 ::: Downloaded on – 26/04/2025 11:22:04 :::
-CRA-728-2023.DOC
62. Resultantly, I am inclined to hold that the learned Civil Judge was
justified in rejecting the application for rejection of the proceeding
under Section 263 of the Act, 1925.
63. Hence the following order:
:ORDER:
64. The Application stands rejected.
65. No costs.
[N. J. JAMADAR, J.]
69. At this stage, the learned Counsel for the applicant seeks
continuation of the ad-interim relief.
70. Having regard to the view taken by this Court, the prayer for
further continuation of the ad-interim relief does not merit acceptance.
Hence, the oral application for continuation of stay stands rejected.
[N. J. JAMADAR, J.]
28/28
::: Uploaded on – 25/04/2025 ::: Downloaded on – 26/04/2025 11:22:04 :::