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1998 DIGILAW 469 (MP)

Phool Singh & two v. Kosa Bai & two

1998-07-09

S.K.DUBEY, V.K.AGRAWAL

body1998
ORDER V.K. Agrawal, J. 1. The learned Single Judge has referred the following questions for decision- (1) "Whether, a probate is compulsorily required in case of a Will made by a Hindu, Buddhist, Sikh or Jain, who is residing outside the territories mentioned in section 57 (a) of the Indian Succession Act (hereinafter referred to as 'the Act') and who has executed a Will in respect of property which is not situate in those territories ?" (2) "Whether, in case of two rival Wills not covered by section 57 (a) & (b) of 'the Act', obtaining of probate is compulsory and the jurisdiction of the civil court would be barred ?" 2. Facts relevant for decision of this reference stated briefly are : that the appellants/plaintiffs are the grandsons (daughter's son) of testator Kashi Bai. The respondent No. 1 Mst. Kosa Bai is the sister-in-law (Bhabhi) of Kashi Bai, while the respondents/defendants 2 & 3 Himachal Singh and Badan Singh are the sons-in-law of respondent No. 1 Mst. Kosa Bai. Kashi Bai was predeceased by her husband and her daughter Gopi Bai, the mother of plaintiffs/appellants. Undisputably, Kashi Bai was the owner of land bearing Khasra No. 60, area 2.544 acres and the house situate in village Sarkheda, Tashil; Deori, District Sagar in Madhya Pradesh. This property is the subject matter of the two Wills executed by Kashi Bai and the said property will now be referred to as 'disputed property'. It is also not in dispute that the parties are Hindus and that the two Wills were executed by Kashi Bai within the territory of Madhya Pradesh. 3. The plaintiffs/appellants filed a suit for declaration of their title and possession over the 'disputed property' and for mesne profits thereof on the basis of registered Will dated 31.3.1986 executed in their favour by their grand mother Kashi Bai. The defendants/respondents resisted the claim as above of the plaintiffs/appellants, by setting up another Will allegedly executed in favour of respondent No. 1 Smt. Kosa Bai on 7.8.1986 regarding the 'disputed property'. 4. The trial Court initially framed issues relating to the conferral of right and title over the 'disputed property' on account of the two Wills allegedly executed by Kashi Bai on 31.3.1986 & 7.8.1986 in favour of plaintiffs/appellants and the respondent/defendant No. 1 Kosa Bai respectively and the effect thereof. 4. The trial Court initially framed issues relating to the conferral of right and title over the 'disputed property' on account of the two Wills allegedly executed by Kashi Bai on 31.3.1986 & 7.8.1986 in favour of plaintiffs/appellants and the respondent/defendant No. 1 Kosa Bai respectively and the effect thereof. Later, an additional issue regarding the jurisdiction of the Court to try the suit was framed by the trial Court, Relying on Ramshankar v. Balakdas ( AIR 1992 MP 224 ), it was held by the trial Court that in view of the two rival wills set-up as above, i.e., one executed in favour of plaintiffs/appellants and the other executed in favour of respondent/defendant No. 1, the Civil Court had no jurisdiction to try the suit and that the controversy could only be decided by a Probate Court. After deciding the additional issue as above, the trial Court directed the plaint to be returned under Order 7 Rule 10 of the C.P.C. for presentation before the proper forum that is the Probate Court, within a period of one month. 5. Aggrieved by the above order of the trial Court, the plaintiff/appellant preferred this appeal. The learned Single Judge in his Order of reference noted that in the decision in Ram Dutta v. Krishna Datta reported in 1987 JLJ 198 , wherein reliance was placed on Mrs. Hem Nollni Judah (since deceased) and after her legal representative Mrs. Marlean Wilkinson v. Mrs. Isolvne Sarojbashini Bose and others ( AIR 1962 SC 1471 ) and Ganshamdoss Narayandoss v. Gulab Bi Bai (AIR 1927 MAD 1054) has taken a view that a defendant cannot establish his right as an executor or legatee in any Court unless a Court of competent jurisdiction has granted probate of the Will under which the right is claimed or has granted letters of administration with the Will or with a copy of an authenticated copy of the Will annexed. It was also noticed that the above view was contrary to the view consistently taken in Lachhman Singh v. Smt. Brishbhan Dulari (1966 MPLJ SN 8), Marwad Saw Mills v. Nemichand (1984 MPLJ SN 6), Chandmal v. Devisingh ( 1982 MPWN 297 ), Shobha Kshirsagar v. Janki Kshirsagar and another ( 1988 MPLJ 28 ) and in C.R. No. 75 of 1986 decided on 9.10.1986 as also by the Nagpur High Court in Ruprao Ranoji v. Ramrao Bhagwantrao (AIR 1952 NAG 88) and Ahemad S/o Abdul Latif and another v. Ghisia Hira Tell & anr. (AIR 1945 NAG 237); that in a case of a Hindu executing a Will in Madhya Pradesh regarding the property situate within the territories of Madhya Pradesh, probate of a Will need not compulsorily be obtained, in view of section 213 (2) of 'the Act'. 6. Further, the learned Single Judge also expressed his disagreement with the view taken in Ramshankar's case (supra) that in case of two contesting Wills, the Civil Court had no jurisdiction and was not competent to decide the issue of the 'last will' and that such a matter can only be considered and decided by Probate Court. 7. Accordingly, the two questions mentioned earlier had been referred for decision by the larger Bench. 8. Learned counsel for the appellants has challenged the order of the trial Court and has urged that as the plaintiffs/appellants were not obliged to obtain the probate of the Will executed by their grand mother Kashi Bai in their favour; therefore, they were entitled to set-up their the on the basis thereof in the suit filed by them without obtaining probate of (sic) Will. Hence, the order of the learned trial Judge directing return of the not for presentation before the Probate Court was not proper. It has also been (sic) on behalf of the appellants, that correct law has not been laid down Ramshankar's case (supra). However, the learned counsel for the respondents supported the order of the trial Court and has urged that the right of the plaintiffs/appellants to approach the Civil Court was impliedly barred u/s. 9 of the C.P.C. 9. To appreciate the controversy, it would be helpful to reproduce the provisions of sections 213 & 57 of 'the Act', which are to be read together. To appreciate the controversy, it would be helpful to reproduce the provisions of sections 213 & 57 of 'the Act', which are to be read together. Section 213 of the Act is as below- S. 213 - Right as executor or legatee when established- (1) No right as executor or legatee can be established in any Court of Justice, unless a Court of competent jurisdiction in India has granted probate of the Will under which the right is claimed, or has granted letters of administration with the Will or with a copy of an authenticated copy of the Will annexed. (2) This section shall not apply in the case of Wills made by Muhammadans, and shall only apply (i) in the case of Wills made by any Hindu, Buddhist, Sikh or Jaina where such Wills are of classes specified in clauses (a) & (b) of section 57. Section 57 of 'the Act' is as below- Sec. 57. Application of certain provisions of the part to a class of wills made by Hindus, etc. - The provisions of this Part which are set out in Schedule-III shall, subject to the restrictions and modifications specified therein, apply - (a) to all Wills and codicils made by any Hindu, Buddhist, Sikh or Jain, on or after the first day of September, 1870, within the territories which, at the said date, were subject to the Lieutenant Governor of Bengal or within the local limits of the ordinary original civil jurisdiction of the High Courts of judicature at Madras and Bombay; and (b) to all such Wills and codicils made outside those territories and limits so far as relates to immovable property situate within those territories or limits; and (c) to all wills and codicils made by any Hindu, Buddhist, Skih or Jain on or after the first day of January, 1927, to which those provisions are not applied by clauses (a) and (b); Provided that marriage shall not revoke any such will or codicil. 10. 10. The combined effect of sections 213 & 57 is that probate or letters of administration with the copy of the Will annexed is necessary to establish the right of an executor or legatee in the following cases- (i) In all cases of Will and Codicils executed by a person, who is not Muhammadan, Hindu, Buddhist, Shikh or Jain; (ii) In all cases of Wills and Codicils of Hindus, Buddhists, Shikhs or Jains executed on or after the 1st of September, 1870- (a) within the territories which on that date were subject to the jurisdiction of Lt. Governor of Bengal or within the local limits of the jurisdiction of the High Courts at Madras and Bombay; and (b) To all such Wills and Codicils made outside those territories and limits in so far as they relate to immovable property situate within these territories or limits. 11. Thus, as per sections 213 & 57 of 'the Act', obtaining of Probate is not necessary in respect of Wills which are executed by Hindus, outside the specified territories, which were subject to the Lt. Governor of Bengal or within the local limits of ordinary original civil jurisdiction of the High Courts of Madras & Bombay and in respect of properties situate outside those territories. 12. This proposition has consistently been laid down in several decisions of this Court. In Lachhman Singh's case (supra), it has been observed that the combined effect of section 213 (2) & sec. 57 of 'the Act' is that obtaining of a probate of the Will is not a condition precedent to the establishment of a right where the Will has been made by a person who is resident of Madhya Pradesh in respect of the property situated in Madhya Pradesh. Similar view was taken in Shobha Kshirsagar's case (supra). In Ahemed's case (supra), which was relied upon in Ruprao Ranoji's case (supra), it was laid down that: Section 213 applies only in cases of Wills specified in clauses (a) & (b) of section 57 of 'the Act'. Section 213 (1) of 'the Act' cannot be made applicable to Wills falling within the classes specified in section 57 (c) of 'the Act'. Therefore, where immovable property in the Central Provinces is claimed under a Will made by a Hindu, it is not a condition precedent to the enforcement of the claim that probate of the Will should be taken. Therefore, where immovable property in the Central Provinces is claimed under a Will made by a Hindu, it is not a condition precedent to the enforcement of the claim that probate of the Will should be taken. The executors can enforce their rights as executors without obtaining probate of the Will. 13. However, Single Bench decision of this Court in Ram Dutta Sharma's case (supra), taking a different view, ruled that a defendant cannot establish his right as an executor or legatee in any Court, unless a Court of competent jurisdiction has granted probate of the Will under which the right is claimed. The learned Single Judge has relied upon the Full Bench decision of the Madras High Court in Ganshamdoss Narayandoss's case (supra) as also on the decision of the apex Court in Mrs. Hem Nolini Judah's case (supra). 14. It may be noticed that the decision of the Madras High Court in Ganshamdoss Narayandoss's case (supra) related to the Will of the property situate within the limits of Madras Presidency. Obviously, therefore, clause (a) of section 57 of 'the Act' would be applicable to such a Will; and, therefore, probate will be required to be obtained as provided in section 213 of 'the Act'. Hence, the said decision would not be an authority to lay down that the Will executed by a Hindu regarding the property situate in Madhya Pradesh, would also compulsorily required probate to be obtained. 15. Further, in the case of Mrs. Hem Nollni Judah (supra), the question before the apex Court was, as to whether section 213 of 'the Act' is restricted to cases where the claim is made by a person directly claiming as a legatee. It was observed (sic) at context as below- The section does not say that no person can claim as a legatee or an executor unless he obtains probate or letters of administration of the Will under which he claims. What it says is that no right as an executor or legatee can be established in any Court of justice, unless probate or letters of administration have been obtained of the Will under which the right is claimed. What it says is that no right as an executor or legatee can be established in any Court of justice, unless probate or letters of administration have been obtained of the Will under which the right is claimed. Therefore, the said authority does not appear to lay down that the Will of a Hindu residing outside the territories mentioned in section 57 (a) of 'the Act' making a Will in respect of property situate outside those territories would require to be probated compulsorily. 16. As already noticed, the combined reading of the provision of section 213 & section 57 of 'the Act' would clearly indicate that if the Will executed by a Hindu is not covered by clauses (a) & (b) of section 57 of 'the Act', the question of application of sub-section (1) of section 213 would not arise. Therefore, if the Will is not executed within the territory mentioned in clause (a) of section 57 or if the Will does not relate to property situated within the territory mentioned in clause (a) of section 57, the provision of sub-section (1) of section 213 are not attracted and, therefore, in view of section 213 (2) of 'the Act' obtaining of the probate of a Will in such cases would not be necessary. Besides the consistent view, as above, of this Court, this has been the view taken by other High Courts also in cases of Ram Chand v. Sardara Singh ( AIR 1962 P&H 382 ), Dr. (Mrs.) Joginder Kaur Malik and another v. Malik Anup Singh ( AIR 1966 P&H 385 ), M/s. Behari Lal Ram Charan v. Karam Chand Sahni and others ( AIR 1968 P&H 108 ), Bhaiya Ji v. Jageshwar Dayal Bajpai (AIR 1978 ALL. 268) and Mst. Jadav v. Ram Swarup and another (AIR 1961 RAJ. 40). 17. (Mrs.) Joginder Kaur Malik and another v. Malik Anup Singh ( AIR 1966 P&H 385 ), M/s. Behari Lal Ram Charan v. Karam Chand Sahni and others ( AIR 1968 P&H 108 ), Bhaiya Ji v. Jageshwar Dayal Bajpai (AIR 1978 ALL. 268) and Mst. Jadav v. Ram Swarup and another (AIR 1961 RAJ. 40). 17. In view of the consistent view taken as above by this Court as well as by other High Courts as noticed above and also in view of the combined effect of the plain language of section 57 and section 213 of 'the Act', the contrary view in Ram Dutta's case (supra) in so far as it lays down that the defendant cannot establish his right as an executor or legatee in any Court, unless the Court of competent jurisdiction has granted probate of the Will, under which the right is claimed or has granted letters of administration with the Will or with a copy of an authenticated copy of the Will annexed, with due respect, does not appear to be correct. We, therefore, answer the first question referred to us and hold that it is not compulsory to obtain the probate of Will made by a Hindu, Buddhist, Sikh or Jain residing outside the territory mentioned in section 57 (a) of 'the Act' and who has executed a Will in respect of immovable property which is not situated within those territories. 18. Regarding the second question, which has arisen on account of a Single Bench decision, rendered in the case of Ramshankar (supra), it may be seen that the facts in the said case were that the two Wills were executed regarding the same property which was situated in Madhya Pradesh. The testator had, by the subsequent Will dated 30.9 1988, revoked the previous Will dated 19.4.1979. The testator had, by the subsequent Will dated 30.9 1988, revoked the previous Will dated 19.4.1979. The learned Single Judge in that case, though held that normally a probate is not necessary for a Will executed by a Hindu outside the specified territories of Bombay, Madras and Calcutta and in respect of property situate outside those territories but, it was further held that in a suit instituted in a Civil Court by a party claiming right, title and interest in any property on the basis of a Will, no issue can be struck to decide if that Will was the last and a valid Will and the other Will, which it purported to revoke had been duly and validity revoked by the Will relied on by the plaintiff. It has further been held therein that the jurisdiction of the Civil Court in such a case will be impliedly barred not only to decide such an issue, but to take cognisance of such a suit in which the plaintiff himself raises such an issue & in such a case, where there is contest between the two Wills, exclusive jurisdiction is vested in the probate Court, which alone would be competent to decide as to which one of the two Wills, had been duly proved and established as the 'last Will' of the testator. 19. To reiterate, it is settled position of law that in the case of a Will, not covered by section 57 (a) and (b) of 'the Act', a probate is not necessary. In other words, in case of a Will executed by a Hindu, Buddhist, Sikh or Jain, outside the territories mentioned in section 57 (a) of 'the Act' regarding property which is not situate within those territories, obtaining of a probate of the Will is not necessary. If that be so, there is hardly any conceivable reason as to why the position would change in case another Will is set-up by a contesting party. 20. The learned Single Judge in the case of Ram Shankar (supra) has examined the general scheme of 'the Act' and has expressed- As the purpose of a probate is to prove the "last Will", the probated Will shall prevail against unprobated to enforce legal and valid vesting under the "last Will" proved as validity executed. 20. The learned Single Judge in the case of Ram Shankar (supra) has examined the general scheme of 'the Act' and has expressed- As the purpose of a probate is to prove the "last Will", the probated Will shall prevail against unprobated to enforce legal and valid vesting under the "last Will" proved as validity executed. By probate, vesting taking place under an unprobated Will may become inoperative as power is conferred expressly on the Probate Court to "revoke" under S. 263, and "recall" under S. 216, the probate granted. The question of divesting and of consequent vesting in proper person may arise in such cases and that will depend on Probate Court's decision. Care, as such, has to be taken against overlapping and conflict of jurisdiction of a Civil Court and a Probate Court. For that, it is necessary to bear in mind the distinction between the right contemplated under section 213(1) enforceable in a Civil Court and the right contemplated under section 227 which can be enforced only in the Probate Court. The fact that S. 213 deals disparately with two classes of Wills can have no bearing on this position. 21. It was accordingly held in that case that the Civil Court in which a lis is instituted by any party claiming right, title and interest in any property, on the basis of a Will, no issue can be struck to decide if that Will was the last Will and was a valid Will and the other Will, which it purported to revoke had been duly and validly revoked by the Will relied on by the plaintiff. The conclusion as above has been drawn after discussion of the general scheme of 'the Act' and purport and effect of section 213 in the light of various provisions of the Act' including sections 216, 217, 227 & 263 of 'the Act'. 22. Section 227 of 'the Act' deals with the effect of probate and states that the probate of a Will, when granted, establishes the Will from the death of the testator and renders valid all intermediate acts of the executor as such. Section 217 of 'the Act' provides that all grants of probate and letters of administration shall be made or carried out in accordance with the provisions of that part. Section 217 of 'the Act' provides that all grants of probate and letters of administration shall be made or carried out in accordance with the provisions of that part. Therefore under the above provisions regarding the grant of probate and establishment of right under the Will once the probate is granted, are covered under the said provisions of sections 217 & 227 of 'the Act'. 23. Similarly, it may be noticed that section 216 of 'the Act' lays down that after the grant of probate or letters of administration, no other person than the person to whom the same have been granted, shall have power to sue etc. until such probate or letters of administration have been recalled or cancelled. Further, in section 263 of 'the Act', it has been provided that the grant of probate or letters of administration may be revoked or annulled for just cause. Therefore, the above provisions of sections 216, 217, 227 & 263 of 'the Act' deal with the provisions regarding the grant of probate, etc., the effect thereof, when it is granted and regarding the cancellation, recall, annulment or revocation thereof. 24. It is clear from above that the above provision of 'the Act' will be attracted only when probate or letters of administration are obtained or proposed to be obtained, in accordance with the provisions of 'the Act'. But, there appears to be nothing in the said-provisions of 'the Act', which would negative the effect of section 57 & section 213 of 'the Act' and it does not appear that in view of above provisions, even if a Will is executed by a Hindu, etc., which is not covered by clauses (a) & (b) of section 57, section 213 (2) would not apply. 25. Therefore, it follows that even if two contesting Wills are set-up, executed by a Hindu outside the territories mentioned in section 57 (a), regarding the property situated outside those territories, obtaining of a probate of a Will from the Probate Court would not be necessary. As noticed by the learned referring Judge also, if that was to be so, it would be very easy for the other party to plead and set-up another Will and thus to defeat the right of the party to pursue his claim under a Will unless he obtains probate thereof. As noticed by the learned referring Judge also, if that was to be so, it would be very easy for the other party to plead and set-up another Will and thus to defeat the right of the party to pursue his claim under a Will unless he obtains probate thereof. Therefore, with due respect, we do not agree with the view taken in Ramshankar's case (supra), that in the case of two contesting Wills exclusive jurisdiction is vested in the probate Court and in such a case in a suit instituted by any party, no issue can be struck by the Civil Court to decide that the Will was the last and valid Will and the other Will set-up by the other party, stands revoked by the Will relied on by the plaintiff. 26. Accordingly, we answer the second question and hold that even in case of two contesting or rival Wills, which are not covered by section 57 (a) & (b) of 'the Act', obtaining of probate is not compulsory and the jurisdiction of the Civil Court would not be barred. 27. In view of the answers as above to the questions referred by learned Single Judge and as the case has been referred to us under Rules 9 (1) & 9 (2) (b) of Section 1 of Chapter-I of High Court Rules & Orders, the appeal deserves to be allowed, and is hereby allowed and the Order of the trial Court directing return of plaint and to present the same before the probate Court, is set-aside; and it is further directed that the trial Court shall itself proceed to hear and to decide the suit, in accordance with law. There shall, however, be no Order as to costs.