KAMLESH M. DAVE vs SULOCHANABEN MAHAVISHNU SHUKLA
- Court
- Gujarat High Court
C/FA/2745/2007 CAV JUDGMENT DATED: 29/06/2026
Reserved On : 08/06/2026
Pronounced On : 29/06/2026
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 2745 of 2007
With
CIVIL APPLICATION (FOR INTERIM RELIEF) NO. 1 of 2007
In R/FIRST APPEAL NO. 2745 of 2007
With
R/FIRST APPEAL NO. 2974 of 2007
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE J. C. DOSHI
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Approved for Reporting Yes No
No
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KAMLESH M. DAVE & ORS.
Versus
SULOCHANABEN MAHAVISHNU SHUKLA
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Appearance:
MR PR THAKKAR(899) for the Appellant(s) No. 1,2,3
MR AR MAJMUDAR(428) for the Defendant(s) No. 1
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CORAM: HONOURABLE MR. JUSTICE J. C. DOSHI
CAV JUDGMENT
1. Common judgment dated 11.05.2007 passed by learned
Additional Senior Civil Judge, Vadodara in Civil Misc.
Application No.219 of 1994 with Probate Application No.201 of
1994 has given rise to above captioned appeals.
2. Since facts of the case are interconnected and decided by
common impugned judgment, with the consent of learned
advocates for the parties, the appeals are taken up and decided
by this common judgment.
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3. Deceased - Kantilal Odhavji Shah resident of C-25, Dosal
Colony, Akota Road, Baroda was bachelor and issue-less died on
07.04.1994. Death of Kantilal has given rise to multiple
proceedings.
4. The original Plaintiffs, Kamlesh and others, preferred Civil
Misc. Application No. 201 of 1994 under the provisions of the
Indian Succession Act, 1925 (hereinafter referred to as “the Act,
1925” ) before the Court of competent testamentary jurisdiction,
seeking probate in respect of the Will dated 29.04.1993 executed
by the deceased, Kantilal Shah, in their capacity as executors.
The Plaintiffs sought probate for the administration of both
movable and immovable properties of the deceased. It was
further the case of the appellants – origional petitioners that on
06.08.1994, the respondent - defendant, through her agents,
committed trespass by breaking open the lock of the residential
premises of the deceased situated at C-25, Dosal Colony,
Vadodara. Upon inquiry, it was revealed that the Respondent
had preferred Civil Misc. Application No. 97 of 1994 for the grant
of Letters of Administration with the Will annexed. The learned
Trial Court Court allowed the said application and granted
Letters of Administration with the Will annexed in favour of the
Respondent. Upon learning of the said grant in Civil Misc.
Application No. 97 of 1994, the appellants filed a revocation
petition, being Civil Misc. Application No. 219 of 1994, under
Section 263 of the Act, 1925. Consequently, both applications
viz. Civil Misc. Application No. 201 of 1994 (for probate) and Civil
Misc. Application No. 219 of 1994 (for revocation)—were clubbed,
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heard, and adjudicated together.
5. Upon hearing the parties, the learned Trial Court, vide the
impugned judgment and order dated 11.05.2007, dismissed both
applications. Aggrieved by the said dismissal, the Appellants
have preferred the captioned First Appeals.
6. Heard learned advocate Mr.P.R.Thakkar for the appellants
and learned advocate Mr.A.R.Majmudar for the respondent.
7. It is sought to be submitted by learned advocate
Mr.Thakkar that learned Trial Court has committed serious and
manifest error in rejecting revocation application. It is further
submitted that learned Trial Court by dismissing revocation
application failed to notice that substantial evidence was led by
the appellant to demonstrate that learned Trial Court has
committed error in granting letter of administration with Will
annexed in Civil Misc. Application No.94 of 1997 as signature of
the deceased Kantilal was not proved. It is further submitted
that learned Trial Court infact failed to notice that propounder of
probate application No.97 of 1994 failed to remove doubt
shrouded on Will which is claimed as last Will of deceased. It is
further submitted that letter of administration was obtained
fraudulently by making false facts before the Court or by
concealing correct facts which is material to the case.
7.1. Learned advocate Mr.Thakkar also referred to the finding of
learned Trial Court and submitted that it is battle between
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executor of the Will and so called beneficiary of Will. It is
submitted that executor has no personal interest in movable and
/ or immovable property of deceased Kantilal, whereas,
respondent herein claims to be beneficiary of Will obtained letter
of administration with Will annexed has personal interest; she
has admitted execution of earlier Will which also indicates her
signature; she has also admitted her signature in Exh.57. It is
submitted that learned Trial Court completely overlooked these
material aspects while dismissing the applications. Learned
advocate Mr. Thakkar further submitted that learned Trial Court
failed to apprciate deposition of Mr. Dhirendra Solanki, a
Company Secretary by profession employed at Dodsal Company.
It is submitted that he was acquainted with the handwriting and
signature of the deceased Kantilal while he was in employment,
this witness cast doubt on the genuineness of the signature of
the deceased on the Will propounded in Civil Misc. Application
No. 97 of 1994. It is submitted that the learned Trial Court, by
way of a cursory judgment, ignored these vital evidentiary
aspects, thereby committed grave error of both fact and law.
Therefore, learned advocate Mr.Thakkar submitted that the
appeals be allowed and thereby, the Letters of Administration
with Will annexed granted in Application No. 97 of 1994 be
revoked, and probate be granted in respect of the Will
propounded by the Appellants in Civil Misc. Application No. 201
of 1994.
7.2. Making above submissions, learned advocate for the
appellants submits to allow the appeals.
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8. Learned advocate Mr.A.R.Majmudar for the respondent as
against aforesaid submissions, mainly argued that section 263 of
the Act, 1925 contains five grounds by which Will can be
revoked. It is submitted that none of the grounds exists in the
case on hand. It is further submitted that the Appellants,
having completely failed to satisfy any of the grounds stated
under Section 263, cannot file revocation application. It is
further submitted that the Will propounded by the Respondent,
Ms. Shukla, has proved the last Will of the deceased Kantilal,
which has been given effect as per final wish of the testator. It is
submitted that the appellants’ claims rest entirely upon a
previous Will, which, even if assumed to be genuine, it is revoked
by subsequent last Will. It is submitted that the appellants at no
point of time challenged the original order of the testamentary
Court granting Letters of Administration in Civil Misc.
Application No. 97 of 1994 before any appellate forum. It is
submitted that revocation application must strictly remain
within five grounds stated under Section 263 of the Act. Iti s
submitetd that appeal arising out of a revocation order cannot be
argued as if it were a direct appeal challenging the original grant
of Letters of Administration. In nutshell, learned advoate
submitted that in limited jurisdiction, this Court should not
interfere with the impugned judgment, which is otherwise just,
proper, and well-reasoned.
8.1. By making aforesaid submissions, learned advocate Mr.
Majmudar submitted to dismiss both the appeals.
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9. Regard being had to rival submissions of learned Counsel
as well as going through impugned judgment along with Record
and Proceedings of the case, it appears that it is fight between
executor and beneficiary. The Executor, as petitioner, seeks
probate of the handwritten Will dated 29.04.1993, which was
purportedly ratified by a letter dated 11.11.1993 and witnessed
by the beneficiary, Dr. Sulochnaben Shukla on the ground that
Will dated 29.04.1993 is hand-writing of the deceased, whereas,
against aforesaid claim, Ms.Shukla claimed letter of
administration with Will dated 18.03.1994 alleged to be executed
by Kantilal before notary public. Needless to observe that Will
dated 18.03.1994 being subject mater of Civil Misc. Application
No.97 of 1994 is later in point of time. By judgment dated
th
27.07.1994, learned 4 Civil Judge (SD), Vadodara having
noticed that public notice was published in Lok Satta dated
04.06.1994 and that no objection was raised by any parties,
granted probate of Will dated 18.03.1994 in favour of
respondent. This order, passed in Probate Application No. 97 of
1994, was not challenged by any party before the learned
Appellate Court. Instead, the original petitioner has preferred an
application for revocation under Section 263 of the Indian
Succession Act, 1925, seeking to revoke the grant made in Civil
Misc. Application No. 97 of 1994. Thus, section 263 of the Act,
1925 is required to refer, which reads as under :-
“263. Revocation or annulment for just cause.—
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—
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(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 willfully 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.”
10. It is well-settled that a grant of probate or letters of
administration may be revoked or annulled for 'just cause.' If
proceedings arise to grant of probate by false suggestion or by
concealing facts being material or grant by means of untrue
allegation of fact essential in point of law to justify, grant may be
made in ignorance or inadvertently or the grant has become
useless and inoperative through circumstances, or to the person
to whom the grant was made has willfully and without
reasonable cause omitted to exhibit an inventory or account in
accordance with the provisions of Chapter VII of the part or
account which is untrue in material respect, same can be
revoked.
11. This is a case where, if the application for revocation of the
Letters of Administration preferred by the petitioner in Civil
Misc. Application No. 97 of 1994 is allowed, it would ipso facto
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allow the application for probate preferred by the Executor.
12. A perusal of the arguments reveals that clauses (b) and (c)
of Section 263 of the Act, 1925, have been invoked by the
petitioner on the ground that the respondent, Ms. Shukla,
obtained the grant illegally and improperly. It is contended that
false facts were pleaded and that suspicious circumstances
shrouded on the signature of the deceased, Kantilal, on the Will
propounded by Ms. Shukla as the last Will of the deceased.
Furthermore, it is contended that the said Will fails to specify
any details of the properties, thereby rendering the grant of
Letters of Administration in Civil Misc. Application No. 97 of
1994 legally untenable and based on untrue allegations.
13. Learned Trial Court after referring arguments of both the
sides in para 25 to 29 ascribed reasons to dismiss the
application. It reads as under ( it is in Gujarati, for better
understanding, it is translated in English) :-
“(25) In this case, considering the statements of the parties,
the oral and documentary evidence produced on behalf of
the parties, and the submissions made by the learned
advocates for the respective parties, two wills of the
deceased Kantilal Odhavji Shah have been produced in this
case. The fact that the will executed in favor of the opponent
is the last will of the deceased Kantilal Odhavji Shah is
indisputed. Furthermore, the fact that the opponent has
initiated legal proceedings through the Honorable Court on
the basis of the said will and has obtained a probate
certificate is also indisputed.
(26) In this case, the applicants have filed an application
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under Section 263 of the Indian Succession Act for the
revocation of the probate certificate obtained by the
opponent, as well as under Section 276 for obtaining a
probate certificate in favour of the applicants on the basis of
the will executed by the deceased Kantilal Odhavji Shah.
Considering these material facts, it remains to be
adjudicated whether the probate certificate obtained by the
opponent is liable to be revoked under Section 263 of the
Indian Succession Act, or not? and thereafter, it remains to
be adjudicated whether the applicants are entitled to obtain
a probate certificate on the basis of the will of the deceased.
(27) On reading the oral evidence produced on behalf of the
parties in this case, it clearly emerges that the applicants
and the opponent in this case had good relations with the
deceased Kantilal Odhavji Shah. Moreover, the opponent is
of the female gender. The deceased Kantilal Odhavji Shah
was a male and there were relations between these two for
years. Kantilal Odhavji Shah was unmarried and the
opponent in this case is also unmarried as of today. That
fact emerges from the record. Considering this material fact,
it clearly emerges that there were close relations between
the deceased and the opponent. According to the submission
of the applicants, detailed submissions have been made for
revoking the probate certificate obtained by the opponent on
the basis of the will of the deceased, and that this will is
suspicious, does not contain the signature of the deceased,
and submissions have been made regarding fabricating the
will; however, reading the oral evidence produced on behalf
of the parties, the applicant and the witnesses of the
applicant have stated the fact in their cross-examination that
the will of the opponent contains the signature of the
deceased and that the signature is like that of the deceased.
Under these circumstances, the applicants in this case have
completely failed to prove the fact that the will of the
opponent does not contain the signature and that the will is
fabricated.
(28) According to the submission of the applicants, the
applicants have produced documents such as the bank
account passbook, chequebook, as well as the
correspondence of the deceased. Further, it is stated that
there is a difference between the signature on the
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documents and the signature of the deceased on the will of
the opponent; however, considering the facts stated in the
cross-examination by the applicant and the witnesses of the
applicants regarding the signature being present on the will
of the opponent, the submission of the applicant cannot be
accepted.
(29) On reading the entire oral and documentary evidence
produced on behalf of the applicants, the witnesses have not
stated any oral evidence regarding the opponent having
fraudulently or suspiciously created a fabricated and
manufactured will of the deceased. Under these
circumstances, as no evidence has been produced on record
by the applicants regarding the revocation of the probate
certificate obtained by the opponent in accordance with the
provisions of Section 263 of the Indian Succession Act, it
does not appear just and proper to accept the application of
the applicant; and under those circumstances, the will
produced by the opponent is the last will, whereas the will
produced by the applicants is not the last will, and it clearly
emerges that the applicants have no right or entitlement to
obtain a probate certificate on the basis of the will produced
under Section 276 of the Indian Succession Act.”
14. It may be inferred from the record that the respondent Ms.
Shukla, had good relationship with the deceased, Kantilal, as
they resided together and looked after one another. However, the
Executor seeks probate for the Will dated 29.04.1993 (Exh. 64),
which the plaintiff asserts it is handwriting of the deceased. The
petitioner also relies upon the letter marked as Exh. 57 —
bearing the signature of the respondent, Ms. Shukla, as an
attesting witness—which restricted entry into the house
exclusively to the appellant. The petitioner contends that these
two established facts demonstrate that the subsequent Will
dated 18.03.1994 propounded by the beneficiary is a false,
fabricated, and manufactured document
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15. The petitioner-appellant, Kamlesh Dave, stepped into the
witness box and rendered detailed oral evidence at Exh. 50.
During his cross-examination, he was shown the disputed last
Will propounded by the respondent, Ms. Shukla. At first breath,
he identified signature of deceased but then he turned back and
stated that signature merely resembled that of the deceased,
Kantibhai. It is admitted by him that he was aware of
proceedings of Civil Misc. Application No.97 of 1994. He also
admitted that Will, which was subject matter of Civil Misc.
Application No.97 of 1994, dated 18.03.1994 is last Will of
deceased Kantilal and no further Will has been executed by
deceased Kantilal. He has further stated that he does not know
under which circumstances, deceased has executed Will dated
18.03.1994. He also stated that he does not confirm that Will
dated 18.03.1994 executed in favour of respondent – Ms.Shukla
is fabricated or otherwise. He also admitted that he was aware
of Will executed in favour of respondent – Ms.Shukla. He also
admitted that he was aware of public notice issued in Lok Satta
by Ms.Shukla at the time of obtaining letter of administration.
Almost identical admissions were made by the other witnesses
cited and examined on behalf of the petitioner.
16. Learned advocate Mr.P.R.Thakkar referred to deposition of
Dhriendra Solanki at Exh.74 and submitted that learned Trial
Court has failed to appreciate evidence of this witness, whereby,
in no uncertain terms, company secretary of Dodsal Company
Ltd. stated that Will dated 18.03.1994 placed by Ms. Shukla for
letter of administration does not bear any signature of deceased
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– Kantilal. I fail to understand under what consideration
evidence of this witness is weight; he is not hand-writing expert.
He was merely Company Secretary and interested witness who,
upon comparing the signature of the deceased against certain
documents, stated that he could not definitely say whether on
the Will dated 18.03.1994, signature of deceased Kantilal exists
or not. Such deposition is highly shaky and doubtful and cannot
be relied upon. Thus, submission of learned advocate
Mr.Thakkar could be attractive provided that witness is hand-
writing expert. Nonetheless the argument canvassed by learned
advocate Mr.Thakkar is failed to meet or invoke any of the
statutory grounds stated in section 263 of the Act, 1925.
17. As discussed herein-above, so called executor of Will dated
29.04.1993 of deceased Kantilal at first breath admitted
signature of deceased Kantilal.
18. In view of above, according to this Court, grounds raised by
appellant for revocation of grant of letter of administration do not
exist. It is not necessary for this Court to re-examine evidence
led in Civil Misc. Application No.97 of 1994 by which letter of
administration / probate were granted in favour of respondent –
Ms. Shukla. This Court is required to examine whether any
grounds exist as enumerated in section 263 of the Act, 1925.
19. As discussed herein-above, the appellant failed to
demonstrate any of the grounds exists to revoke the grant of
letter of administration in favour of respondent – Ms.Shukla.
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20. This brings the Court to answer next question whether the
appellant possesses any equitable interest sufficient to establish
locus standi to file revocation application. Executor generally
has no personal interest or beneficial interest in the property;
rather, they are merely the person appointed to execute the last
Will of the deceased.
21. Learned advocate Mr.Thakkar submitted that deceased
Kantilal had wish to bequeath his entire movable and immovable
property for noble cause of education. No doubt it is good cause
but Last Will dated 18.03.1994 having been successfully proved
before the learned Trial Court and pursuant to which letter of
administration has been issued demonstrate last Will of
deceased in favour of respondent Ms. Shukla. Undoubtedly, Ms.
Shukla in later life of Mr.Kantilal was nearer person and each of
them were taking care of each other. At this stage, I may refer
judgment of Hon’ble Apex Court in the case of Krishna Kumar
Birla v/s. Rajendra Singh Lodha [2008 (5) SCR 640] to notice
that the judgment rendered in probate proceedings would not
determinative of the question of title.
21. The fact remains that the Executor-appellant did not raise
any question regarding the title of the immovable property
stands in favour of the beneficiary.
22. In view of aforesaid circumstances, the first appeals fail
and accordingly, they are dismissed. Interim relief granted
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earlier, if any, stands discontinued. Record and proceedings, if
any, be send back. Registry to maintain copy of this order in
each matter.
23. Connected Civil Application also stands disposed of.
(J. C. DOSHI,J)
SATISH
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