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2000 DIGILAW 1134 (MP)

BHAIYALAL v. KASHI BAI

2000-10-14

ARUN MISHRA

body2000
ARUN KUMAR MISHRA,J. ( 1 ) THE defendant has filed this second appeal aggrieved by the reversal of the judgment and decree passed by the trial Court. The trial Court dismissed the suit. The Appellate Court has allowed the appeal of the plaintiff and held the plaintiff to be owner to the extent of 1/4th share in the property and the plaintiff has been held entitled to obtain partition from the Revenue Court and to obtain separate possession and Bhaiya lal, the defendant-appellant, has been declared to be the owner to the extent of 3/4th share. Cross objection has also been filed by the plaintiff/respondent challenging the factum of the will and it has been submitted that without getting probate of the Will it was not open to the defendant to take advantage of the same in the Civil Court. ( 2 ) THE plaintiff-respondent filed a suit for declaration of title and permanent injunction on the allegations that the plaintiff and defendant's father Pancha owned certain agricultural land comprising survey Nos. 165, 166, 167, 169,172,173,175, 240 and 304. The plaintiff was having half share in it. Pancha died ten days prior to filing of the suit. Defendant no. 1 and the plaintiff are the only heirs of pancha being son and daughter. The plaintiff was called by her father prior to 10-12 years and she was residing along with her father As the defendant wanted to use the land which was being cultivated by the plaintiff in the life time of her father, Pancha handed over 1/4th share to the plaintiff in the presence of panchas. She further pleaded that after death of Pancha in the remaining property she was having half share. There was partition between pancha and other co-sharers and plaintiff and defendant were in possession of half of the share each, of the land belonging to Pancha. She further pleaded that after death of Pancha in the remaining property she was having half share. There was partition between pancha and other co-sharers and plaintiff and defendant were in possession of half of the share each, of the land belonging to Pancha. By way of amendment, plea was taken that will dated October 21, 1987 submitted by defendant is a fraudulent document and was not executed by Pancha, He was not in a condition to execute the Will, Thus, the plaintiff sought a declaration that she be dedared owner to the extent of one half share in the property left by deceased Pancha who was himself having half share in the property and the defendant be restrained from interfering with the plaintiff's possession over the land in question and further from alienating the same. ( 3 ) THE defendant in the written statement contended that Pancha died on June 10, 1990 and had executed a Will in favour of the defendant, Bhaiyalal The plaintiff was not cultivating the land nor residing with the defendant She was not in possession and was not entitled to any share in view of the Will executed by Pancha The plaintiff is not in possession, hence the suit for declaration and injunction is not maintainable. ( 4 ) THE trial Court came to the conclusion that the plaintiff and defendant (No. 1) are the legal representatives of deceased Pancha. However, the Will executed by Pancha was found to be proved. Thus, the trial Court held that the plaintiff could not be declared to be owner and dismissed the suit. ( 5 ) ON appeal, the learned first Appellate court has come to the conclusion that execution of the Will has been established. However, the Appellate Court further came to the conclusion that even with the existence of the will, since Pancha was possessing the property after partition with defendant Bhaiyalal, and Bhaiyalal was separated by Pancha in his life time, the property of Pancha would be inherited in equal share by his son and daughter, namely plaintiff Kashibai and defendant bhaiyalal. The Appellate Court has further come to the conclusion that the property was joint family property of Pancha, Kashibai and bhaiyalal as the property was obtained by pancha in partition with his brother. Thus, pancha was having right to execute the Will to the extent of his limited share which he had. The Appellate Court has further come to the conclusion that the property was joint family property of Pancha, Kashibai and bhaiyalal as the property was obtained by pancha in partition with his brother. Thus, pancha was having right to execute the Will to the extent of his limited share which he had. Hence the plaintiff has been found entitled to obtain 1/4th share and 3/4th share has been given to defendant Bhaiyalal. ( 6 ) THE present second appeal has been admitted by this Court on 28-2-1997 on the following substantial questions of law: (I) Whether in the absence of any pleading and proof that suit lands at the hands of Pancha were joint family property, the lower Appellate Court was right in holding that suit properties were joint family properties and Pancha had one half share in the property? (ii) Whether the suit for declaration and injunction is maintainable without seeking consequential relief of possession when plaintiff is out of possession of suit lands? ( 7 ) THE learned counsel for the appellant submits that cross-objection was filed which involved substantial questions of law Following two substantial questions, in addition, are framed and the parties are heard on them (III) Whether without obtaining probate of the Will right based on the same can be claimed by the defendant in a Civil Court? (iv) Whether the finding with respect to execution of the Will is perverse? ( 8 ) THE learned counsel for the appellant has urged that the finding of the learned Court below with respect to joint family of Pancha, kashibai and Bhaiyalal is perverse and in view of the finding that Will has been established to the Will of the propounder, it was open to pancha to give the share which he had and the property in the hands of Pancha shall be deemed to be his self acquired property which he had obtained in partition with his brother. Thus, the plaintiff ought to have been non suited in to to. ( 9 ) THE learned counsel for the respondent has submitted that there was partition between Pancha and Bhaiyalal, the defendant appellant. After partition Pancha was residing with the plaintiff Kashibai and Pancha had given 1/4th share to her in his life time. Thus, pancha could not execute the Will with respect to the portion which he had already given to kashibai. After partition Pancha was residing with the plaintiff Kashibai and Pancha had given 1/4th share to her in his life time. Thus, pancha could not execute the Will with respect to the portion which he had already given to kashibai. The defendant has been declared to be owner of 3/4th share on the strength of will to which he was not entitled as the defendant has not obtained probate of the Will he has placed reliance on a decision of this court in Ram Shankar v. Balakdas, to submit that no issue can be struck by Civil Court to decide if it was the last Will and claim ought to have been rejected by the trial Court as without obtaining probate civil Court cannot examine as to the factum and validity of the Will. Thus the defendant could not set up any right under the Will in a Civil Court. He has also relied on a decision of the Apex Court in chiranjilal Shrilal Goenka v. Jasjit Singh and others to submit that Civil Court in original side or arbitrator, even on consent of parties, has no jurisdiction to adjudicate upon proof of validity of Will propounded by the executor and probate should be obtained in order to set up the right. ( 10 ) THE submission raised by the learned counsel for the defendant goes to the very root of the matter and the jurisdiction of the Civil court to entertain the suit and adjudicate upon the factum and validity of the Will without obtaining the pobate, and to grant the declaration which has been given in the instant case in favour of the defendant-appellant, is being adverted to first. ( 11 ) IN order to appreciate the submission, it is relevant to quote the provisions of Section 57 of the Indian Succession Act:"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. 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 jaina, on or after the first day of september, 1870, within the territories which at the said date were subject to the State Government of Bengal or 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, Sikh or Jaina 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. "it is also relevant to quote Section 213 of the Act which reads thus:-"213. Rights 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 Mohammadans, and shall not 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) and (b) of section 57, and (ii) in the case of Wills made by any parsi dying, after the commencement of the Indian Succession (Amendment) Act, 1962 where such Wills are made within the local limits of the ordinary original civil jurisdiction of the High Courts at Calcutta, Madras and Bombay, and where such Wills are made outside those limits, insofar as they relate to immovable property situate within those limits. " ( 12 ) A bare reading of Section 57 (a) makes it clear that the provision applies to all the Wills made within the territories of Government of bengal or 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. If a Will is executed by a Hindu, Buddhist, Sikh or Jaina within such territories or with respect to property situated in those territories, it is necessary to obtain the probate and Civil Court has no jurisdiction to adjudicate upon the factum and validity of the Will. The decision which has been cited of the Apex Court in Chiranjilal shrilal Goenka vs. Jasjit Singh (supra), their lordships of the Supreme Court were dealing with a Will executed in Bombay to which Section 57 applied. Hence the Apex Court has laid down that without obtaining the probate right under the Will could not be set up before the Civil Court or before the arbitrator even with the consent of the parties. But in the present case, property situates not in any of the territories as specified in Section 57 of bengal, Madras and Bombay, thus, the ratio of the Apex Court decision (supra) has, no application to the instant case. ( 13 ) THE learned counsel for the plaintiff/ respondent has heavily relied on the decision of this Court in the case of Ram Shankar vs. Balakdas, (supra), wherein it has been laid down that even if a Will has been executed outside the territory of Bengal, Bombay and madras, when there is a contest between two wills the question is whether it is the last Will of the testator and that can only be determined by the probate Court and not by Civil Court even in the area which is not specifically covered by Section 57 of the Indian Succession act. Ultimately, this Court came to the conclusion that in a Civil Court in a suit 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 and direction was made to return the plaint. The matter in the case of Ram Shankar (supra) arose out of the applications for injunction and receiver and those very applications were before the Court for decision. However, the learned Single Judge has taken the view that in an appeal arising out of injunction application, when the entire Iis was not before the Court, the question could be adverted to with respect to whether suit itself was maintainable and plaint could be ordered to be returned by the High Court in an appeal arising out of rejection of injunction application and appointment of receiver which was of an interim nature. That recourse itself adopted by the learned Single Judge is open to doubt. However, it appears that the view taken by the learned Single Judge in the case of Ram shankar (supra) is contrary to various decisions and hence cannot be considered to be laying down the law in derogation to the settled position of law which is discussed hereafter. ( 14 ) THE learned Single Judge of this Court who decided the case in Ramshankar (supra)has in the case of Modem Gopal and another vs. Smt. Ramjiwanibai and others, laid down that the words "those territories" mentioned in Clause (b) of Section 57 refer to the territories named in clause (a) of the said Section. The Wills which are exempted from the requirement of being probated to establish legatee's right under the Will are those mentioned in Clauses (a) and (b) i. e. where the Will was not executed in any of the territories and where the property situates within those territories the learned Single Judge came to the conclusion that provisions of succession Act for obtaining probate applies only to Wills made by any Hindu, Jain, Sikh or Buddhist within the territories subject during that period to the control of Lieutenant Governor of Bengal and in the towns of Madras and Bombay. In the case of Shobha Kshirsagar vs Janki kshirsagar, the learned Single Judge has also taken the view that Section 213 of the Indian succession Act is not applicable to Hindus as provided therein but when a probate is, in fact, obtained, there can be no doubt that the provision becomes applicable. ( 15 ) SUB-SECTION (2) of Section 213 makes it clear that the Section applies with respect to wills which are of the class specified in clause (b) of Section 57. ( 15 ) SUB-SECTION (2) of Section 213 makes it clear that the Section applies with respect to wills which are of the class specified in clause (b) of Section 57. As already stated above, persons whether they are Hindus, Buddhists, Sikhs or Jainas, if they are residing in the area of lieutenant Governor of Bengal or within the local limits of civil jurisdiction of the High Courts at Madras or Bombay, it is incumbent to obtain the probate. That is what is the intendment of Section 213 and also Section 57 of the Indian Succession Act and the bar created by sub-section (1) of Section 213 that 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 administation with the Will or with a copy of an authenticated copy of the will annexed applies only to those categories of persons as mentioned in clause (a) and properties mentioned in clause (b) of Section 57 of the Act which is crystal clear from the provisions of sub-section (2) of Section 213. ( 16 ) THIS position is well settled from a catena of decisions of the Nagpur High Court which was the High Court for the area prior to establishment of M. P. High Court under the state Reorganisation Act, 1956. In the case of Jairam Chimnaji v. Bhagirathi, the Division bench has laid down thus:-"then the learned counsel argued that without obtaining probate the appellants could not institute a suit. The testator is a Hindu and a resident of mofussil. So under section 213 (2), Succession Act, neither a probate of the Will nor letters of administration, with a copy of the Will annexed, need be obtained. This is also the view which has been taken by Sen j. in Ahamad vs. Ghisia, disagreeing with the view taken by Pollock J. in kisan Gopal vs. Chunnilal. We entirely agree with the view taken by sen J. "in Zimali vs. Wasudeo Trimbak, the division Bench has held that there is no period of limitation for application for grant of probate. We entirely agree with the view taken by sen J. "in Zimali vs. Wasudeo Trimbak, the division Bench has held that there is no period of limitation for application for grant of probate. In the case of Lacchman Singh v. Smt. Brisbhan Dutari, the learned Single judge, Shri Shiv Dayal, J. (as he then was) has held as under-"the combined effect of Section 213 (2) (i) and Section 57 of the Indian succession 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 a resident of Madhya Pradesh in respect of the property situated in madhya Pradesh. " ( 17 ) IN the case of Chandmal Jain v. Devisingh Rajput, the learned Single Judge shri H. G. Mishra, J. has taken the view that a hindu Will need not be probated. This Court placed reliance on the decision in Ahmed v. Ghisia Hera, and Ruprao v. Ramrao, Shri g. P. Singh, J. (as he then was) in Bharat kumar v. Firm A. K. Joshi, also took the view that Section 213 has no application to the case of Wills made by any Hindu which do not falls under clauses (a) and (b) of Section 57, Clauses (a) and (b) of Section 57 relate to Wills and codicils made within the local limits of the ordinary original Civil Jurisdiction of the High courts of Judicature at Madras and Bombay and to Wills and codicils relating to immovable property situated within the said territories In that case, the Will was executed in Madhya pradesh and it related to the property in madhya Pradesh. The Will, therefore, fell sufunder clause (c) of Section 57. The bar of Section 213 was, therefore, not applicable to the will with which this Court was concerned. Similar is the view taken by Shri S. R. Vyas, J. in ramcharanlal v. Madhavlal and Shri G. P. Sen, J. in the case of Marwad Saw Mill v. Nemichand, relying on the decision in lachhman Singh (supra ). The bar of Section 213 was, therefore, not applicable to the will with which this Court was concerned. Similar is the view taken by Shri S. R. Vyas, J. in ramcharanlal v. Madhavlal and Shri G. P. Sen, J. in the case of Marwad Saw Mill v. Nemichand, relying on the decision in lachhman Singh (supra ). The Allahabad High court in the case of Bhaiyaji v. Jageshwar dayal Bajpai, has also taken the view that probate need not be obtained by the Hindu in respect of a Will made in respect of immovable property situated in other territories than bengal, Bombay and Madras, relying on previous decision of that High Court. The Orissa high Court in the case of Balaram Tripathy v. Lakanath Tripathy, had held that a Will excuted in exfeudatory State of Dhenakanal is not a Will falling under Section 57, probating is not a condition of its admissibility. A Division Bench of the Punjab High Court in the case of M/s. Behari Lal Ram Charan v. Karam chand Sahni and others, has also laid down that obtaining a probate of a Will is not necessary in case where both the persons and the property of any Hindu, Buddhist, Sikh or Jaina are outside the territories specified in Section 57 (a) Suit was held to be competent. The rajasthan High Court in Mst. Jadav v. Ramswarup and another, has also taken the similar view. ( 18 ) THE learned single Judge of this Court (Shri H. G. Mishra, J.) in Vidhoyaram v. Devlal, has held as under:-"on reading Section 213 with Section 57 of the Act the position which emerges is that so long as a particular will executed by a Hindu is not covered by clauses (a) and (b) of Section 57 the question of application of sub-section (1)of Section 213 of the Act does not arise. This is what has been held in Ahamad v. Ghisa Hira, (supra), Mst. Jadav v. Ramswarup and another, (supra), and beharilal v. Karamchand (supra ). In view of the law laid down in the aforesaid cases, there can be no dispute with the proposition that Section 213 (1) has no applicability to a Will made by a hindu which falls in clause (c) of Section 57 of the Act. Jadav v. Ramswarup and another, (supra), and beharilal v. Karamchand (supra ). In view of the law laid down in the aforesaid cases, there can be no dispute with the proposition that Section 213 (1) has no applicability to a Will made by a hindu which falls in clause (c) of Section 57 of the Act. Accordingly, a person who sets up a Will which does not fall within clauses (a) and (b) of Section 57 can establish his rights as legatee in any Court of justice without obtaining a probate. To put it differently, obtaining of probate in such cases is optional but to say that it is optional for such a person to apply for grant of probate does not mean that if he elects to apply for grant of probate then the Court can refuse to grant to be only proved and the last Will of the testator. "i would have referred the matter for consideration to larger Bench, but in view of the decision of the Division Bench of the Nagpur high Court which was the predecessor High court of this Court and number of decisions mentioned above and also decision by the same single Judge taking contrary view in the case of Ramshankar's case (supra ). 1 am not inclined to adopt that course as the decision which runs counter to the Division Bench decision cannot hold the field and has to be treated as no longer laying down good law as making a reference when Division Bench decisions are already available for guidance has been held to be not a good practice. If a single judge has taken a contrary view, that obviously cannot hold the field in view of the decision in Diwan Singh v. Bhaiyalal in which the Full Bench observed:"the abovementioned two Division bench decisions, followed by the Full bench decision of this Court ought to have been regarded as constituting ficient ground for the learned Single judge for proceeding to decide the case on merits instead of making a reference to a larger Bench of this Court. " ( 19 ) THE substantial question of law which has been framed is to the effect that whether pancha constituted a joint family and the property in question was joint family property of pancha. " ( 19 ) THE substantial question of law which has been framed is to the effect that whether pancha constituted a joint family and the property in question was joint family property of pancha. It is the case set up by the defendant that there was partition between Pancha and bhaiyalal and half of the share was given to him This fact finds mention in the Will also. Thus, the finding which has been arrived at in para 26 by the Appellate Court that Pancha was constituting joint family with Kashibai and bhaiyalal at the time of execution of the Will is unsustainable. In this regard, the Court has not considered the evidence on record. It was not open to the Court not to have assessed the evidence and to arrive at such a finding. Because of the partition between Bhaiyalal and pancha there is no presumption of reunion, on the contrary presumption is that they had separated. Whether Kashibai was constituting joint family with Pancha is also a question which has not been gone into by the learned appellate Court in extensive detail. The first appellate Court has also not adverted to the question raised in the plaint that 1/4th share was given to plaintiff Kashibai by deceased pancha in his life time. No finding has been arrived at in that regard. With respect to question of possession also the Appellate Court has not adverted to the evidence whether Kashibai was in actual possession. The Court was of the view that land was joint family property of kashibai, Pancha and Bhaiyalal and they shall be deemed to be in joint possession, but that finding itself does not appear to be based on assessment of evidence. There is gross error committed by the Court below in arriving at the finding as to joint family. It is the duty cast upon the first Appellate Court to assess the evidence, and not to proceed on the basis of assumptions which are not warranted. Assessment of evidence has to be done by the Court below being the final Court of fact, hence the matter deserves to be remanded to the first appellate Court to decide the appeal afresh on all the issues. ( 20 ) FOR the reasons stated above, the appeal is allowed. The judgment and decree passed by the first Appellate Court is set aside. ( 20 ) FOR the reasons stated above, the appeal is allowed. The judgment and decree passed by the first Appellate Court is set aside. The matter is remanded to the first Appellate court to decide the appeal afresh in the light of the observations made above. Parties are directed to appear before the first Appellate court on 27-11-2000. The registry is directed to transmit the records of the Courts below to the first Appellate Court so as to reach before the date fixed for appearance of the parties in the Court below. No fresh notice shall be necessary to be issued. It is expected that the appellate Court shall decide the appeal finally within a period of four months from the date fixed before it. Parties are left to bear their own costs of this appeal as incurred. Appeal allowed. Matter remanded. .