KHACHAR RANA LAXMAN Vs. DHADHAL HATHIYABHAI MULUBHAI

JUDGEMENT

(1.) The facts giving rise to this appeal, broadly stated, are that on 16-3-1959 the respondents had filed an application (Varsa Case) No. 30/58 in the Court of the Civil Judge (S.D.) Surendranagar for obtaining the Letters of Administration, with the Will annexed on the basis of a will dated 11-9-1935 executed by Bhura Punja Khachar who died at Sayla on 25-8-1958. The appellants before this Court who were opponents in that proceeding resisted the same. After hearing the parties, the Letters of Administration with the Will annexed were directed by the Court to be issued in favour of the respondents. After that decision was given, the appellants learnt from Mr. Kantilal N. Vora, an advocate of Muli, about deceased Khachar Bhura Punja having made his last Will on 17-11-1956, and the same was duly attested and registered. He also told them that he had written the same at his instance, and had that will with him. That led them to file Misc. Application No. 8/60 in the same Court, for having the grant of Letters of Administration with the Will of 1935 annexed to the respondents revoked or annulled under Section 263 of the Indian Succession Act, and for issuing a probate in their favour on the basis of his last Will made on 17-11-1956.

(2.) The respondents resisted the application inter alia contending that they have been lawfully granted the Letters of Administration on the basis of the will dated 11th September, 1936 made by deceased Khachar Bhura Punja, and since the applicants were the parties in that proceeding any such application by them was not maintainable, the same being barred by the principles of resjudicata and estoppel. They also denied any knowledge about the same having been executed in a sound disposing state of mind by deceased Bhura Punja or about the applicants having learnt about it in the manner alleged by them. They, however, contended that no such application can now lie and it should be rejected with costs.

(3.) The trial Court raised two issues. The first was whether the applicants prove that there was a just cause for the revocation of the grant of the Letters of Administration made in favour of the opponents in Varsa Case No. 30/58, and if so, whether they prove that the Letters of Administration with the will annexed said to have been made on 17th November, 1956, in their favour should be granted to them. While dealing with the first issue, he accepted the contention of the opponents that the applicants were parties to the earlier proceeding and they had an opportunity to contest the same. He further found that the provisions of Civil Procedure Code applied, and since they had failed to contest on any such ground, they cannot be heard to agitate the same cause later and therefore the application was barred by principle of res judicata. The application was, thus, held not maintainable, and in those circumstances, it did not consider issue No. 2, and dismissed the application with costs. Feeling dissatisfied with that order passed on 10th January, 1961, by Mr. P.P. Patel, Civil Judge (S.D.) Surendranagar, the appellants have come in appeal before this Court.