VIJYABEN VASHRAM Vs. STATE OF GUJARAT
HIGH COURT OF GUJARAT
State of Gujarat and Others
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(1.)In respect of proof of documents how does proof of a will differ from other documents ? This distinction has not been properly grasped by the trial Court and hence the appellant-plaintiff who succeeded in persuading the trial Court that the valid execution of will in question was proved fails in this appeal solely on the ground of absence of proof of legal and valid execution of the will. The appellant-original plaintiff filed a special civil suit for declaration and injunction to the effect that the residential house called Parmar House situated at Vijay Plot Street No. 13 in the city of Rajkot exclusively belongs to her and that defendants Nos. 1 2 and 3 i.e. State of Gujarat and the officers of the Sales Tax Department had no right to affect recovery of the alleged dues of sales tax payable by deceased husband of the plaintiff (Naranbhai Maganbhai) by affecting sale of the property in question. The suit was resisted by defendants Nos. 1 2 and 3 on the ground that the property was not self-acquired property of the deceased and therefore it could not have been disposed of by deceased Naranbhai Bhagwanbhai by executing will in favour of the plaintiff. It was also contended that the will was not validly executed. Defendant No. 4 the is one of the some of the deceased had not filed any written statement and appears to have remained absent in the proceedings. The trial Court after recording evidence and after hearing the parties can to the conclusion that the property was not selfacquired property of the deceased and therefore it could not have been disposed of by him by executing the will. However the trial Court found that the will was validly executed. Even 60 in view of its finding about the character of the property the trial Court ordered to dismiss the suit. Hence the appeal by the original plaintiff.
(2.)Deceased Naranbhai Bhagwanbhai was carrying on business in partnership with two of his sons in the name of Sarvoday Motor Workes. He executed a will dated 28/09/1962 by which according to the plaintiff the house in question was bequeathed to her. The testator Naranbhai Bhagwanbhai died on 28/06/1963 After his death the partnership firm was reconstituted and all his six sons became partners of the firm. As the sales tax dues were not paid a notice was issued to defendant No. 4 who was a partner in the firm of which deceased Naranbhai Bhagwanbhai was also a partner. Defendant No. 4 is one of the sons of deceased Naranbhai. According to the respondent_ defendants i.e. the State of Gujarat and the officers of the Sales Tax Department defendant No. 4 was also liable to pay the dues of the sales tax and hence the notice for recovery of dues was also issued to him As per the notice public auction of the property in question was to be held on 25/04/1973 The plaintiff applied to the appropriate officer of the Sales Tax Department and objected to the sale on the ground that the property was self acquired property of deceased Naranbhai and that she had become owner of the property by virtue of the will executed by deceased Naranbhai Bhagwanbhai. The objections were rejected on 23/04/1973 Hence the plaintiff filed the suit for declaration and injunction as stated above. Formerly the suit was filed without serving notice under Sec. 80 of the Civil Procedure Code and hence the same was withdrawn with permission to file fresh suit. The present suit was filed on 16/01/1974
(3.)Defendants Nos. 1 2 and 3 i.e. State of Gujarat Assistant Commissioner of Sales Tax and the Sales Tax Recovery Mamlatdar respectively resisted the suit on facts as well as on law points. It was contended by the defendant that the dues were in respect of the sales tax and were payable by the firm of Sarvoday Motor Works of which the deceased and his two sons namely Jadav Naran and Shamji Naran were partners. The dues were for the period commencing from Ap 1/04/1960 to 31/03/1969 After the death of Naranbhai the partnership was re-constituted and all his sons had become partners of the firm it was contended by the defendants that the property alleged to have been disposed of by will could not have been so disposed of by the deceased because it was a joint family property The business of Sarvoday Motor Works was also of joint family of deceased Naranbhai Bhagwanbhai. It was also contended that the will was not executed in accordance with law and that it was fraudulent transfer with a view to avoid payment of dues of the Sales Tax Department and that of other creditors.
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