Abdulrazzak Sulemanbhai Basra vs Abdulsattar Hajidaud Chaachadiya and Others

Rajesh H. Shukla, J.—The present Second Appeal has been filed u/s 100 of the CPC challenging the order dated 08.02.2008 passed by the Learned Principal Civil Judge & Judicial Magistrate, First Class, Dhrol in Civil Misc. Application No. 6 of 2005 as well as order dated 12.10.2010 passed by the Learned Principal District Judge, Jamnagar in Civil Misc. Appeal No. 44 of 2010 with following substantial questions of law:

Whether the Trial Court was justified in granting letter of administration for the entire suit property to the applicant on the basis of will of one co-owner when admittedly the suit property was of joint ownership of two person?

Whether the Trial Court erred gravely in granting letter of administration for the entire suit property on basis of will of one-co-owner despite the fact that admittedly the said co-owner (testator) had right to manage only his share of the suit property?

Whether the Courts below could have granted letter of administration to the applicant without serving notice to persons interested in the property and whether the courts below should have entertained the application when mandatory procedure u/s 278 of the Indian Succession Act was not followed?

Whether Courts below erred in entertaining application of applicant for getting letter of administration which was brought after period of 3 years of death testator thus making it barred by limitation?

Whether the courts below were right in awarding any maintenance to the Respondent in view of the fact that she was not the legally wedded wife of the Appellant after the decree of divorce?

Whether the learned lower appellate Court was justified in dismissing the appeal of the Appellant despite rendering findings on almost all issues in favour of the Appellant?

Whether the courts below were right in decreeing the suit of the Respondent and dismissing the appeal of the Appellant considering the evidence on record?

Whether the courts below have erred gravely in not appreciating the evidence on record thereby causing manifest injustice to the Appellant?

Heard learned Counsel, Mr. N.C. Thakkar for the Appellant and learned After arguing for some times, both have invited consensus order of counsel, Mr. Sudhir Mehta for Respondent No. 2.

After arguing for some times, both have invited consensus order of remanding the matter back to the trial court, which shall be decided the issue afresh after issuing notice and after hearing all the heirs concerned as also after following procedure as required under the Indian Succession Act. Similarly, the trial court shall also decide the contention of the basic factsraised whether the will could have been made of the entire property or not as there is specific contention that the property was of the joint ownership of two persons whether one co-owner can make a will of the entire property.

As it transpires from the findings given by the lower appellate court while deciding Civil Misc. Appeal No. 44 of 2010, the issues are decided in affirmative though the appeal has been dismissed. Therefore, without any further elaboration, both the impugned orders deserve to be quashed and set aside and the matter is required to be remanded back to the trial court for deciding afresh.

Accordingly, the present Second Appeal is allowed. The order dated 08.02.2008 passed by the Learned Principal Civil Judge & Judicial Magistrate, First Class, Dhrol in Civil Misc. Application No. 6 of 2005 as well as order dated 12.10.2010 passed by the Learned Principal District Judge, Jamnagar in Civil Misc. Appeal No. 44 of 2010 are hereby quashed and set aside and thereby the matter is remanded back to the Court of the Learned Principal Civil Judge & Judicial Magistrate, First Class, Dhrol, who shall decide Civil Misc. Application No. 6 of 2005 afresh in accordance with law after hearing all concerned parties.

It goes without saying that the parties shall maintain status quo till the trial court decides the issues on merits in accordance with law as stated above.

In view of the above order, the Civil Application filed for stay does not survive and stands disposed of accordingly.