Faiz Murtaza Ali Vs. Syed Askari Hadi Ali Augustine Imam and anr. - Court Judgment

Excerpt:
- motor vehicles act, 1988 [c.a. no. 59/1988]section 173(1) proviso; [d. biswas, amitava roy & i.a.ansari, jj] appeal without statutory deposit but within limitation/or extended period of limitation maintainability - held, if the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. the provision of sub-section (1) of section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the court has the discretion either to grant time to make the deposit or not. no formal order condoning the delay is necessary, an order of adjournment would suffice. the provisions of limitation embodied in the substantive provision of the sub-section (1) of section 173 of the act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the statutory deposit is made either with the memo of appeal or on such date as may be permitted by the court. no specific order condoning any delay for the purpose of deposit under first proviso to sub-section (1) of section 173 is necessary. [new india assurance co. ltd. v md. makubur rahman, 1993 (2) glr 430 and new india assurance co. ltd. v smt rita devi, 1997(2) glt 406, approved. new india assurance co. ltd. v birendra mohan de, 1995 (2) gau lt 218 (db) and union of india v smt gita banik, 1996 (2) glt 246, are not good law]. order1. this petition for review is directed against the order dated 2-4-2008 passed in l.p.a. no. 33 of 2008 as also the order passed by the learned single judge on 4-1-2008 in testamentary case no. l of 2003 precluding the petitioner from contesting the probate case on the ground that he has no caveatable interest.2. prima facie, we have noticed that the so-called testator/testatrix-deceased shamim amna imam did not inherit the properly from her in-laws as admittedly she was unmarried and hence the property, in question, in regard to which the will is alleged to have been executed by shamim amna imam was not her exclusive or self-acquired property, as her mother, sayeeda mehndi imam, and mother's brother, i.e., maternal uncle of testatrix, late (justice) syed murtaza fazal ali, were still alive during the lifetime of the alleged testator/testatrix, who is claiming a share under the mohammedan law.3. the petitioner herein faiz murtaza ali is the son of late (justice) syed murtaza fazal ali, i.e., the first cousin of the testator/testatrix-shamim amna imam.4. the respondents, syed askari hadi ali augustine imam and syed hasan francis imam, on the other hand, who are claiming the property by virtue of a will executed by shamim amna imam, had absolutely no concern with the property which belonged not merely to the testator/testatrix, shamim amna imam, but also to her mother, sayeda mehndi imam and under the mohammedan law to her brother late murtaza faiz ali, who was the brother of sayeda mehndi imam, i.e., the maternal uncle of shamim amna imam. thus, the property, had devolved by succession under the mohammedan law not merely to shamim amna imam, but also to her mother sayeda mehndi imam as the tes tator/testatrix predeceased her mother and her brother late (justice) syed murtaza fazal ali, i.e., the maternal uncle of testator/testatrix. prima facie, therefore, the property, in question, devolved also on sayeda mehndi imam, late (justice) syed murtaza faiza ali and the testator/testatrix, shamim amna imam, in equal share under the moham medan law as the property, in question, was not the exclusive property of the testator/testatrix, shamim amna imam. thus, if the property, in question, was not the exclusive property of so-called testator/testatrix, shamim amna imam, then by virtue of the will the entire property could not have been transferred in favour of a third party belonging to the branch of second wife of testator/testatrix's grand father, late syed hassan imam. to appreciate the position with clarity, a gene alogical table is given out herein as under: late syed hassan imam | _________________________________________________________________________________________ | |wife-bibi muniba wife-mrs. nattie imam (dead) (dead)____________________________________________________________________ || | | |son daughter daughtersyed mehndi imam mrs. asma imam mrs. mahuda sami |(dead) (dead) (dead) || |wife sonsayeda mehndi imam s.a.h.a. imam(died on 22-4-04)___________________ (petitioner no. 1 in | | testamentary case) | | | | | sondaughter brother syed hassan francis imamshamim amna imam late justice murtaza fazal ali (petitioner no.2 in(died on 23-5-1998) testamentary case)(testator/testatrix) | | | son faiz murtaza ali (petitioner in present review petition)5. in view of the position, indicated here in before, it is prima facie not possible to hold that the petitioner has no caveatable interest in the property, in question, which is claimed to have been transferred in favour of the respondents by virtue of a will alleged to have been executed by shamim amna imam. even at the risk of repetition, we deem it just and proper to clarify that the property, in question, was not the exclusive property of the testator/testatrix-shamim amna imam as she was unmarried and hence after her death as she had predeceased her mother, her share could have been reverted only to the legal heir, i.e., syeda mehndi imam and whether her share would devolve upon her brother late (justice) murtaza fazal ali and thereafter upon his son faiz fazal ali under the mohammedan law would be a subject matter of adjudication by a court of competent jurisdiction where the petitioner has already filed a suit and hence in the testamentary case seeking probate of the will, the petitioner cannot be deprived of the opportunity to contest the same, especially, when the genuineness and veracity of the will alleged to have been executed by the deceased shamim amna imam is also under challenge.6. it goes without saying that the observations made by this court would not prejudice the case of the contesting parties before a court of competent jurisdiction as they are merely prima facie in nature. nevertheless, it would not be just and proper at this stage to hold that the petitioner has no caveatable interest in the property, which is claimed to have been transferred by virtue of a will by shamim amna imam in favour of the respondents, who belong to an altogether different branch, which would be evident on perusal of the genealogical table given out hereinbefore. hence, the findings of the learned single judge to the effect that the petitioner has no caveatable interest so as to deny him the right to contest the probate case do not appear to be correct or just in any manner.7. hence, the impugned orders passed by the learned single judge in testamentary case holding therein that the petitioner has no caveatable interest in the property, in regard to which the will is alleged to have been executed, appears to be an error apparent on the face of the record and requires interference. the impugned orders dated 4-1-2008 passed in testamentary case no. l of 2003 and the order dated 2-4-2008 passed in l.p.a. no. 32 of 2008 arising out of the testamentary case, respectively, are set aside and the court taking up the testamentary case is directed to allow the petitioner also to be heard in the matter. he may also be allowed to be impleaded as party respondent in the probate case, if there are no other legal impediments and the implications in this regard.8. since the impugned orders have been set aside the petitioner will be at liberty to file a fresh application for impleadment/intervention as it can be instantly noticed that the petitioner has a dear caveatable interest in the testamentary case in regard to the will which is alleged to have been executed by shamim amna imam.the review petition, under the circumstances, is allowed, but there shall be no order as to costs.

Judgment:
ORDER

1. This petition for review is directed against the order dated 2-4-2008 passed in L.P.A. No. 33 of 2008 as also the order passed by the learned single Judge on 4-1-2008 in Testamentary Case No. l of 2003 precluding the petitioner from contesting the probate case on the ground that he has no caveatable interest.

2. Prima facie, We have noticed that the so-called testator/testatrix-deceased Shamim Amna Imam did not inherit the properly from her in-laws as admittedly she was unmarried and hence the property, in question, in regard to which the Will is alleged to have been executed by Shamim Amna Imam was not her exclusive or self-acquired property, as her mother, Sayeeda Mehndi Imam, and mother's brother, i.e., maternal uncle of testatrix, late (Justice) Syed Murtaza Fazal Ali, were still alive during the lifetime of the alleged testator/testatrix, who is claiming a share under the Mohammedan Law.

3. The petitioner herein Faiz Murtaza Ali is the son of late (Justice) Syed Murtaza Fazal Ali, i.e., the first cousin of the testator/testatrix-Shamim Amna Imam.

4. The respondents, Syed Askari Hadi Ali Augustine Imam and Syed Hasan Francis Imam, on the other hand, who are claiming the property by virtue of a Will executed by Shamim Amna Imam, had absolutely no concern with the property which belonged not merely to the testator/testatrix, Shamim Amna Imam, but also to her mother, Sayeda Mehndi Imam and under the Mohammedan Law to her brother late Murtaza Faiz Ali, who was the brother of Sayeda Mehndi Imam, i.e., the maternal uncle of Shamim Amna Imam. Thus, the property, had devolved by succession under the Mohammedan Law not merely to Shamim Amna Imam, but also to her mother Sayeda Mehndi Imam as the tes tator/testatrix predeceased her mother and her brother late (Justice) Syed Murtaza Fazal Ali, i.e., the maternal uncle of testator/testatrix. Prima facie, therefore, the property, in question, devolved also on Sayeda Mehndi Imam, late (Justice) Syed Murtaza Faiza Ali and the testator/testatrix, Shamim Amna Imam, in equal share under the Moham medan Law as the property, in question, was not the exclusive property of the testator/testatrix, Shamim Amna Imam. Thus, if the property, in question, was not the exclusive property of so-called testator/testatrix, Shamim Amna Imam, then by virtue of the Will the entire property could not have been transferred in favour of a third party belonging to the Branch of second wife of testator/testatrix's grand father, late Syed Hassan Imam. To appreciate the position with clarity, a gene alogical table is given out herein as under:

Late Syed Hassan Imam

|

_________________________________________________________________________________________

| |

Wife-Bibi Muniba Wife-Mrs. Nattie Imam

(Dead) (Dead)

____________________________________________________________________ |

| | | |

Son Daughter Daughter

Syed Mehndi Imam Mrs. Asma Imam Mrs. Mahuda Sami |

(Dead) (Dead) (Dead) |

| |

Wife Son

Sayeda Mehndi Imam S.A.H.A. Imam

(Died on 22-4-04)___________________ (petitioner No. 1 in

| | Testamentary Case)

| | |

| | Son

Daughter Brother Syed Hassan Francis Imam

Shamim Amna Imam Late Justice Murtaza Fazal Ali (petitioner No.2 in

(Died on 23-5-1998) Testamentary Case)

(Testator/Testatrix) |

|

|

Son

Faiz Murtaza Ali

(petitioner in present

Review Petition)

5. In view of the position, indicated here in before, it is prima facie not possible to hold that the petitioner has no caveatable interest in the property, in question, which is claimed to have been transferred in favour of the respondents by virtue of a Will alleged to have been executed by Shamim Amna Imam. Even at the risk of repetition, we deem it just and proper to clarify that the property, in question, was not the exclusive property of the testator/testatrix-Shamim Amna Imam as she was unmarried and hence after her death as she had predeceased her mother, her share could have been reverted only to the legal heir, i.e., Syeda Mehndi Imam and whether her share would devolve upon her brother Late (Justice) Murtaza Fazal Ali and thereafter upon his son Faiz Fazal Ali under the Mohammedan Law would be a subject matter of adjudication by a Court of competent jurisdiction where the petitioner has already filed a suit and hence in the testamentary case seeking probate of the Will, the petitioner cannot be deprived of the opportunity to contest the same, especially, when the genuineness and veracity of the Will alleged to have been executed by the deceased Shamim Amna Imam is also under challenge.

6. It goes without saying that the observations made by this Court would not prejudice the case of the contesting parties before a Court of competent jurisdiction as they are merely prima facie in nature. Nevertheless, it would not be just and proper at this stage to hold that the petitioner has no caveatable interest in the property, which is claimed to have been transferred by virtue of a Will by Shamim Amna Imam in favour of the respondents, who belong to an altogether different Branch, which would be evident on perusal of the genealogical table given out hereinbefore. Hence, the findings of the learned single Judge to the effect that the petitioner has no caveatable interest so as to deny him the right to contest the probate case do not appear to be correct or just in any manner.

7. Hence, the impugned orders passed by the learned single Judge in Testamentary Case holding therein that the petitioner has no caveatable interest in the property, In regard to which the Will is alleged to have been executed, appears to be an error apparent on the face of the record and requires interference. The impugned orders dated 4-1-2008 passed in Testamentary Case No. l of 2003 and the order dated 2-4-2008 passed in L.P.A. No. 32 of 2008 arising out of the testamentary case, respectively, are set aside and the Court taking up the testamentary case is directed to allow the petitioner also to be heard in the matter. He may also be allowed to be impleaded as party respondent in the probate case, if there are no other legal impediments and the implications in this regard.

8. Since the impugned orders have been set aside the petitioner will be at liberty to file a fresh application for impleadment/intervention as it can be instantly noticed that the petitioner has a dear caveatable interest in the testamentary case in regard to the Will which is alleged to have been executed by Shamim Amna Imam.The Review Petition, under the circumstances, is allowed, but there shall be no order as to costs.