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2002 DIGILAW 1081 (MP)

JAMSHEDJI DUBASH v. MEHARBAI RUSTUMJI DUBASH

2002-12-11

S.P.KHARE

body2002
JUDGMENT S.P. Khare, J.—These are two appeals u/s 96, CPC by the plaintiff against the orders by which his plaints have been rejected under Order 7, Rule 11, Civil Procedure Code. Rejection of the plaints is deemed to be a decree as per definition of decree given in section 2(2), Civil Procedure Code. 2. It is not in dispute that plaintiff Jamshedji, defendant No. 3 Sohrabji and deceased Rustamji were three brothers. Their mother Tehmina Bai executed the Will dated 6-12-1961 at Bombay. That covered certain properties situated at Katni in Madhya Pradesh. The defendants No. 1 and 2 are heirs of Rustamji. The testator has also died on 12-5-1983. Under the Will defendant No. 3 Sohrabji was declared to be the executor. He submitted an application for obtaining the probate in respect of this Will. The properties at Katni are said to have been bequeathed by the testator to her three sons named above. The probate has not yet been issued. The Plaintiff instituted three civil suits against the defendants in the year 1986. Civil Suit No. 11-A of 1986 was in respect of the property in Sawarkar Ward, Katni. An objection was raised on behalf of the defendants No. 1 and 2 that the suit is not maintainable in the absence of Probate as per section 213 of the Indian Succession Act, 1925. That objection was overruled by the trial Court but it found favour with the District Court in a revision (as per local Amendment the revision lay to the District Court) and the plaint was rejected as per Order 7, Rule 11, Civil Procedure Code. The plaintiff challenged that order by filing a writ petition under Article 227 of the Constitution of India before this Court. That was M.P. No. 103 of 1990. A Division Bench of this Court dismissed the said writ petition by order dated 19-3-1990. One of the grounds for dismissing the writ petition, as stated in para 12, was that the plaintiff "never made any request for grant of time to file the probate". It was held that the plaintiff has no "subsisting cause of action in the absence of probate or letters of administration". The plaintiff filed a SLP before the Supreme Court against this order and that was dismissed. It was held that the plaintiff has no "subsisting cause of action in the absence of probate or letters of administration". The plaintiff filed a SLP before the Supreme Court against this order and that was dismissed. However, it was observed by the Supreme Court that "this dismissal shall not have any bearing on any subsequent proceedings that may be taken by the petitioner in respect of the matter according to law." 3. The other two civil suits instituted by the plaintiff were Civil Suit No. 30-A of 1986 and Civil Suit No. 49-A of 1986 pending in the Court of Additional District Judge, Katni. In these two Civil Suits the plaintiff made applications for grant of time to produce the Probate as it has not yet been issued. The defendants No. 1 and 2 submitted applications for rejection of the plaints. The trial Court feeling bound by the decision of this Court in aforesaid writ petition rejected the plaints in these two suits also by the impugned orders. These two appeals have been filed against those two orders. 4. After hearing the learned counsel for the appellant and the defendants No. 1 and 2 in person this Court is of the opinion that the plaint could not have been rejected under Order 7, Rule 11(d), Civil Procedure Code. The plaint can be rejected under Order 7, Rule 11(d), CPC "where the suit appears from the plaint to be barred by any law". Section 213 of the Indian Succession Act, 1925 provides: "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". The words of this section clearly indicate that no right as a legatee can be "established" in the absence of probate or letters of administration. 5. The words of this section clearly indicate that no right as a legatee can be "established" in the absence of probate or letters of administration. 5. Long back in the year 1910 the Privy Council in Chandra Kishore Roy vs. Prasanna Kumari, 38 I.A. 7 held that the grant of probate of a Will is not a condition precedent to the institution of the suit, and the executor or legatee may institute a suit without obtaining probate and that he will not be entitled to a decree unless probate is granted to him before the passing of the decree. The same view was taken by the Privy Council in Meyappa vs. Supramanian, AIR 1916 PC 202 . It was reiterated that the executor after testator's death can institute a suit without obtaining a probate but that he cannot obtain a decree in the suit before the grant of probate. These two decisions of the Privy Council were relied upon in Raichand vs. Jivraj, AIR 1932 Bom 13 where the law has been stated to be that the grant of probate of a Will is not a condition precedent to the institution of a suit by a person claiming as a legatee, and the executor or the legatee may institute a suit without obtaining probate, but he will not be entitled to a decree unless probate is granted to him before the passing of the decree. It is immaterial, that the grant of probate follows the suit so long as it is granted before the date of the decree. 6. In Ramcharan Singh Vs. Mst. Dharohar Kuer, also it has been held that it is sufficient for the purpose of section 213 if the probate is obtained before the passing of the decree. Again in Ajit Kumar vs. Rathindra Nath, AIR 1980 Cal. 777 it has been held that section 213 does not operate as a bar to institution of an action before obtaining probate of the Will. 7. It is therefore, well settled that a legatee can file a suit and produce the probate subsequently before a decree is passed in the suit. 777 it has been held that section 213 does not operate as a bar to institution of an action before obtaining probate of the Will. 7. It is therefore, well settled that a legatee can file a suit and produce the probate subsequently before a decree is passed in the suit. In this case it has been submitted by the respondents No. 1 and 2 that it has been held by a Division Bench of this Court in M. P. No. 103/1990 by order dated 19-3-1990 that the suit is not maintainable in the absence of probate or letters of administration and therefore, a contrary view cannot be taken now. As already stated, in the above writ a it has been observed in para 12 that the plaintiff never made any request for grant of time to file the probate and that was one of the reasons that the rejection of the plaint was upheld. In the present case, the plaintiff submitted applications in the two suits to grant time for producing the probate and therefore, order passed in the writ petition mentioned above is distinguishable. That cannot operate as res judicata or as a precedent for the other two suits because of the fact that in these two suits, the plaintiff has submitted applications for grant of time to produce the probate. It is pointed out that almost twelve years have passed and the proceedings in the probate case are still pending. In such a situation it was highly unjust to reject the plaints in the two suits pending before the Additional District Judge. The plaintiff could be given sometime to produce the probate and such an order could not cause any prejudice to the defendants No. 1 and 2. The suit can be decided on merits even after the production of the probate or in case probate is not granted its effect on the maintainability of the suits could be examined by the trial Court. 8. The institution of the suit is not barred in the absence of the probate. Sometime it may become necessary for the executor to institute the suit and request for time to produce the probate. For example, if the limitation is running out the suit has to be instituted and the plaintiff can request the Court to give time for production of the probate. Sometime it may become necessary for the executor to institute the suit and request for time to produce the probate. For example, if the limitation is running out the suit has to be instituted and the plaintiff can request the Court to give time for production of the probate. In this manner the plaintiff can avoid the suit being barred by limitation. Such a situation arose in Ramcharan Singh Vs. Mst. Dharohar Kuer, and it has been held that the suit can be instituted and the probate can be produced subsequently before the passing of the decree. 9. The Division Bench in the earlier case was bound to follow the law laid down by Privy Council in the two decisions referred above. The Division Bench has made a reference to the decision of the Supreme Court in Mrs. Hem Nolini Judah (since deceased) and after her Legal Representative Mr. Marlean Wilkinson Vs. Isolyne Sarojbashini Bose and Others, in which it has been held that section 213 creates a bar to the "establishment" of any right under the Will by an executor or a legatee unless probate or letters of administration of the Will have been obtained, whether that right is claimed by the person as a Plaintiff or defendant. This decision of the Supreme Court does not lay down that the institution of the suit is barred. Therefore, view taken by the Privy Council in the two decisions referred above has to prevail. In the case before the Supreme Court a person claiming as legatee under a Will of which she had obtained letters of administration filed a suit for declaration of her title in regard to a property included in the Will. She sought to establish that the ownership of that property vested in her testator as a legatee under a Will executed in favour of her testator by another person. No probate or letters of administration had however been obtained in regard to that Will. On these facts it was held that section 213 barred the plaintiff from "establishing" the right of her testator as a legatee under the alleged Will as no probate or letters of administration had been obtained. Therefore, on the basis of this decision of the Supreme Court it cannot be held that section 213 of the Indian Succession Act, 1925 bars the very institution of the suit. Therefore, on the basis of this decision of the Supreme Court it cannot be held that section 213 of the Indian Succession Act, 1925 bars the very institution of the suit. As already stated the law is well settled that a probate can be produced before the decree is passed in the suit. Recently in Clarence Pais and Others etc. Vs. Union of India, the Supreme Court has observed that the scope of section 213 of the Act is that it prohibits recognition of rights as an executor or legatee under a Will without production of probate and sets down a rule of evidence and forms really a part of procedural requirement of the law of forum. It is further stated in this judgment that the bar that is imposed by this section is only in respect of the "establishment" of the right as an executor or legatee. From this judgment it is also clear that the production of probate is only a rule of evidence and part of the procedural requirement. It implies that the institution of the suit for which cause of action has already arisen is not barred. If the probate is produced during the pendency of the suit before its disposal that would serve the purpose. 10. The present two appeals are against the two suits which were in respect of different properties in which the plaintiff claimed certain rights as legatee. The property which was involved in Civil Suit No. 11-A of 1986 giving rise to M.P. No. 103 of 1990 was different. For the foregoing reasons these two appeals are allowed. Impugned orders dated 15-9-1992 of the 1st Additional District Judge, Mudwara, Katni in Civil Suits No. 30-A of 1986 and 49-A of 1986 are set aside. The parties are directed to appear before the trial Court on 6-1-2003. Final Result : Allowed