JAYESH DAMJIBHAI GAJJAR Vs. DINESHBHAI DAMJIBHAI GAJJAR

JUDGEMENT

(1.) ADMIT . Notice of admission is waived by Mr. Jal Unwala, Ld. Advocate for the respondent. Heard Ld. Advocate Mr. Adil Mirza for the appellant and Mr. Jal Unwala, Ld. Advocate for the respondent.

(2.) THE record shows that the appeal against the impugned order in Probate Application No. 5/2008 dated 29/2/2012, filed in the month of July 2012, is pending for admission since then. By an order dated 14/3/2013 this High Court has directed the appellant to place on record oral evidence of witnesses and copy of the will. In response, the appellant has produced paper book consisting of probate application, copy of Will and copies of deposition of witnesses to will. On demand, today Ld. Advocate for the appellant has placed on record certified copies of objections filed by the other -side before the trial Court. In addition to oral arguments of both the Ld. Advocates, record has been perused.

(3.) ON face of record, it becomes crystal clear that though the deceased Damjibhai Hirajibhai Gajjar has as many as eight legal heirs including present appellant, while filing the application for probate, the appellant has not failed to disclose their names in cause title and thereby to allow the Court to issue notice upon all legal heirs either to support the application or to oppose it. Copies of certified copies of all relevant documents are already on record. IN the application for probate, the appellant has categorically states against the title opponent, "nobody", though the Will at exh. 57 categorically confirms that the deceased has other legal heirs except the appellant. The same fact has been categorically disclosed by the respondent while filing an objection at exh. 7 that the deceased has left behind him respondent being real brother of the appellant and four other sisters. Surprisingly, the respondent has to object the application only after noticing the filing of probate application by the appellant through public notice. Therefore, prima -facie, when notices upon such legal heirs are not issued only because of the reason that the appellant has not joined them as party, the probate application cannot be allowed, as prayed for.