SHIRISHKUMAR DEVCHAND KAPADIA Vs. PRADEEP J.NABAR

JUDGEMENT

(1.) Present appeal is filed by the appellant - original applicant under Sec. 276 of the Indian Succession Act, 1925 (hereinafter be referred to as "the Act") challenging the impugned judgment and order dtd. 8/1/2008 passed by the learned Principal Senior Civil Judge, Surat (hereinafter be referred to as "the trial Court") in Probation Application No. 75 of 2006 whereby the trial Court has rejected the application filed by the appellant.

(2.) Brief facts of the present case are that the appellant has filed probate application before the trial Court to obtain probate in respect of the last will and testament dtd. 24/3/2003 executed by one Dr. Jashwantlal Nanchand Shah in vernacular Gujarati language and registered in the office of Sub Registrar at Mumbai vide registration No. 2946/2003 on 29/3/2003. That Dr.Jashwantlal was the maternal uncle of the appellant who died on 27/5/2003 at Surat and his wife Ansuyaben died on 11/4/1997 at Surat. Out of the wedlock, they have no any child and they died without any child and there are sixteen legal heirs and nearest relatives mentioned in the last will and testament dtd. 24/3/2003. According to the appellant, Dr.Jashwantlal was serving in Municipal Corporation at Mumbai and he executed said will and testament, which was registered before the Sub Registrar at Mumbai. The appellant is the beneficiary as per the said will and testament of deceased and, therefore, he had filed the probate application to obtain the probate in respect of the property. According to the appellant, the deceased submitted an application to the Post Master, Haji Ali Post Office at Mumbai in respect of withdrawal of the amount from SB account under the signature of one Pradeep. J. Nabar, respondent herein and the deceased was expecting early payment from such account. The deceased inquired from the said Post Office through Shri S. S. Sanzagiri, who in turn informed that the cheque will be drawn after 2/6/2003 and Shri Sanzagiri was informed by the appellant that Dr.Shah died on 27/5/2003 and therefore, Shri Sanzagiri wrote a letter addressed to the appellant stating that Dr. Shah was no more, therefore, there was no reason in taking cheque from Post Office in the name of Dr. Shah and under the circumstances, the Post Office was informed to cancel the withdrawal slip and to return the pass-book. According to the appellant, Shri Sanzagiri wrote a letter to the appellant requesting him to send copy of death certificate. It transpires from the said letter that he informed the respondent to contact him as and when he came to Mumbai and he shall tell him to contact the appellant. Thereafter, Shri Sanzagiri informed the appellant that the said accounts were transferred in favour of the respondent and the cheque for Rs.6,25,000.00 was drawn by the postal authority keeping the balance of Rs.35,972.00. Shri Sanzagiri informed regarding the cheque but the respondent was not willing to deposit the said cheque and even the respondent was not ready to co-operate to transfer the said amount in favour of the appellant, who is the only beneficiary under the last will of Dr. Shah. That the appellant addressed a letter to the postal authority, Mumbai to make payment from the said SB A/c. No. 4211821 of Dr. J.N. Shah to the appellant. The letter written by Shri Sanzagiri to the appellant was verified by the postal authority of Surat, putting the endorsement checked and verified by the Public Relation Officer, Head Office. The appellant requested the respondent to cooperate and to see that the amount would be received by the appellant as he is the only beneficiary under the last will of Dr. Shah. The total amount of Rs.6,67,517.00 lying in the Post Office SB A/c. No.4211821 issued by the Post Master, Haji Ali Branch Mumbai. Further, some amount of time deposit accounts were also lying in the said post office. Thus, the appellant is entitled to receive the aforesaid amount from the Post Office Haji Ali, as he is only the beneficiary under the last will of Dr. Shah. Hence, the appellant has filed the probate application to get probate to the last will and testament dtd. 24/3/2003 duly registered on 29/3/2003 in the Office of Sub-Registrar Mumbai executed by Dr. Jashwantlal Nanchand Shah in favour of the appellant. After hearing the respective parties and considering the evidence on record, the trial Court has rejected the application filed by the appellant.

(3.) Being aggrieved and dissatisfied with the impugned judgment and order passed by the trial Court, the appellant has preferred the present appeal.