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NON-REPORTABLE

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

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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.

2. We  have  heard  learned  counsel  for  the  parties  and

perused the papers on record.

3. 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

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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.

4. 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.

5. The  trial  court,  on  the  basis  of  the  pleadings  of  the

parties, framed following issues: -

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(i) Whether  the  deceased  testator  Chandrabai Annappa Gurav was owner of the property in question?

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

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

(iv) To what order, if any, the applicant is entitled?

6. 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.

7. 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

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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

Another1,  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.

8. However, the original applicant Vishwanath Dadu Gurav

and  original  opponent  Dattatray  Ganapati  Gurav  have  died

and their legal representatives are prosecuting the matter.

9. 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.

1 1995 (2) Mh.L.J. 336

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10. 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.

11. 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.

12. The writ petition filed on behalf of the original applicant

was dismissed by the High Court holding that there was no

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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.

13. No doubt, when there existed no ground of challenge on

merits in the writ petition, High Court could not have adverted

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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.

14. 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.

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15. Accordingly, the present appeals stand disposed of.  

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

     .………………….……………J.               [Prafulla C. Pant]

New Delhi; November 16, 2015.