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Judgment
Dr. Ashokkumar C. Joshi, J
The Petitioners / Original Applicants have field this Petition under Article 227 of the Constitution of India challenging an ex parte order dated 25.
10.2018 passed below Exh.44 in Miscellaneous Civil Application No.12 of 2012 by the learned Principal Senior Civil Judge, Palanpur, whereby the
learned Judge has refused to give exhibit to the mark 37/1, which is a copy of the original ‘Will’ of late Marubhai Methaji Bhagvanji dated
20.1.1965.
This Court has issued Rule on 8.2.2022 and the matter is kept for orders as none had remained present on behalf of the Respondents though duly
served. It was also noted that on 6.1.2022 also none has remained present.
Learned Advocate for the Petitioner has submitted that the Petitioners had filed Miscellaneous Civil Application No. 12 of 2012 under Section 372
of the Indian Succession Act for availing the probate of ‘Will’ executed by late Mohanbhai Shakrabhai, in whose favour, the original
‘Will’ was executed by Methji Bhagaji, and thereby, declare the Petitioners as owners of the disputed property being House situated in City
Survey No. 11653 Municipal House No. 1326, Delhi Darwaja Road, Amirpur, Palanput, District Banaskantha.
Learned Advocate for the Petitioners has submitted that the order passed by the learned Judge is bad in law, illegal and against the provisions of law
and hence liable to be quashed and set aside. It is further submitted that the order is ex parte without hearing the Petitioners and therefore also the
same is ex facie illegal, bad in law. It is further submitted that on behalf of the Petitioners, Kantibhai Mohanbhai vide Exh.38 gave his deposition on
oath and along with his deposition he had produced copy of the original ‘Will’ of late Marubhai Methaji Bhagvanji dated 20.1.1965 by way of
separate list vide mark 37/1 and he had also produced notice published in the newspaper by way of separate list vide mark 6/1. That after the
deposition was recorded, on behalf of the Petitioners, an application was given on 5.3.2018 vide Exh.44 stating that the Petitioners are producing the
original copy of the ‘Will’ by way of separate list and original copy of the newspaper publication, which has been proved by the Petitioners in
the deposition and thereby requested the Court to give Exhibit Numbers of documents Mark 6/1 and 37/1. It is contended that the same was fixed for
hearing. Learned Advocate for the Petitioner has submitted that surprisingly on 25.10.2018 the learned Judge has passed an ex parte order and
refused to mark the Exh. 37/1 document but at the same time has given Exhibit Number to the document at Mark 6/1. The learned Judge has stated
that the order has been after hearing the parties to the proceedings, but, in fact, the Petitioners have not been heard before passing such order.
Therefore, being aggrieved and dissatisfied with the aforesaid order, the Petitioners have preferred the present Petition on the ground that the order
passed by the learned Judge is bad in law, illegal and against the principles of law. It is submitted that as per Section 90 of the Indian Evidence Act, if
the document is old by more than 30 years, then the same is required to be treated as real and exhibited on record of the case. However, the learned
Judge in his order has observed that the witnesses to the document at mark 37/1 have not been examined and therefore the same cannot be given
exhibit number. It is submitted that the the Petitioners have reliable information that the witnesses to the ‘Will’ have already expired and before
the Petitioner could bring the said fact to the notice of the Trial Court, the impugned order has been passed without giving any opportunity to the
Petitioner. It is further submitted that while the cross examination of the petitioners was done, the Respondents have not made any efforts to disprove
the authenticity of the ‘Will’ dated 20.1.1965, and therefore, the same could have been believed as genuine and real one, and it ought to have
been given the exhibit number by the learned Judge. It is further contended that even otherwise no prejudice is likely to be caused to be Respondents
if the document at Mark 37/1 is given exhibit number, whereas if the same is not given the exhibit number, it would cause serious prejudice to the
Petitioners and would also result into serious miscarriage of justice as the said document is important and necessary to get the probate of the
‘Will’ dated 20.1.1965. It is further contended that after the order came to be passed, the Petitioner No.1 Jamaben, widow of Mohanbhai
Shakrabhai Brahmania, passed away on 2.3.2019 and she is represented through her legal heirs who are already on record.
This Court has heard the arguments advanced by the learned Advocate for the Petitioner and has gone through the order passed by the learned
Principal Senior Civil Judge, Palanpur. The Notice is served upon Respondents but none has remained present on behalf of the Respondents on earlier
two occasions. Therefore the court has heard learned Advocate Mr. Kunal Shah for learned Advocate Mr. B.A.Surti for the Petitioner on 8.2.2022
and kept the matter for orders.
Learned Advocate for the Petitioner has drawn the attention of this Court that pursuant to the order dated 25.10.2018, it is held by the learned Trial
Court, the court heard both the sides and the learned Advocate for the Opponent has no objection for exhibiting M6/1 newspaper but has strong
objection for exhibiting M37/1 original ‘Will’, and looking to M37/1, though it is original ‘Will’, its witnesses have not been examined and
hence it cannot be exhibited at this stage and therefore M6/1 is ordered to be exhibited.
Section 90 of the Indian Evidence Act, is with regard to presumption as to documents thirty years old. Section reads as under:
“Where any document, purporting to be thirty years old, is produced from any custody which the Court in the particular case considers proper, the
Court may presume that the signature and every other part of such document, which purports to be in the handwriting of any particular person, is in
that person’s handwriting, and, in the case of a document executed or attested, that it was duly executed and attested by the persons by whom it
purports to be executed and attested.
Explanation â€" Documents are said to be in proper custody if they are in the place in which, and under the care of the person with whom, they would
naturally be; but no custody is improper if it is proved to have had a legitimate origin, or if the circumstances of the particular case are such as to
render such an origin probable.
This Explanation applies also to section 81.â€
On bare reading of the order passed by the learned Principal Senior Civil Judge, Palanpur dated 25.10.2018, it appears that such an aspect is not
considered by the learned Judge and therefore, it would be just and proper to remit the matter back to the Court below. Further, it is also come on
record that public notice is given to that effect. Upon such premises, merely on the basis of lack of examining the witnesses, the learned Trial Court
would not have disallowed the contentions of the present Petitioner. Still, however, this Court is of the opinion that without going into the merits of the
case and also merits exhibiting the captioned ‘Will’, let the application for exhibiting the ‘Will’ be decided afresh by the learned Principal
Senior Civil Judge, Palanpur after availing the opportunity to both the sides so that the purpose of justice would be served on merits.
The Petition accordingly deserves to be allowed and accordingly stands allowed. The order dated 25.10.2018 passed below Exh.44 in Miscellaneous
Civil Application No.12 of 2012 by the learned Principal Senior Civil Judge, Palanpur is hereby quashed and set aside. The matter is remitted back to
the learned Principal Senior Civil Judge, Palanpur for deciding afresh in accordance with law. The learned Principal Senior Civil Judge, Palanpur shall
decide afresh, the application for exhibiting the ‘Will’ after availing the opportunities to both the sides, on merits without being influenced by the
order passed by this court. No order as to costs.