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Madhya Pradesh High Court · body

2008 DIGILAW 373 (MP)

Gouri Bahu through LR Shashidevi v. Gopal Das

2008-03-04

A.K.SHRIVASTAVA

body2008
ORDER 1. This revision application under section 115 of the Code of Civil Procedure, 1908 (in short 'the Code') has been filed by the present applicant Smt. Shashi Devi against the order dated 2.8.2004 passed by learned Executing Court directing her to obtain probate certificate in order to execute the decree of eviction passed in favour of decree holder Gouri Bahu. 2. The facts leading to the revision application lie in narrow compass. Smt. Gouri Bahu filed Civil Suit No. 20-A/98 for eviction on the ground envisaged under section 12 (1) (a) of the M.P. Accommodation Control Act, 1961 against the respondent-Gopaldas on the relationship of landlord and tenant. The suit was decreed by learned 2nd Civil Judge Class II, Katni on 31.10.2000. 3. An appeal which was filed by respondent/tenant against his landlord Gouri Bahu was dismissed as abated, since Gouri Bahu died. 4. The present applicant Smt. Shashi Devi presenting herself to be the legatee of Gouri Bahu, filed execution application on the ground that Gouri Bahu executed a Will in her favour on 23.6.2001. It has also been stated in the application that Gouri Bahu died on 27.6.2001 and because a Will has been executed in her favour, she be permitted to get the decree executed passed in favour of Gouri Bahu. 5. An objection was raised on behalf to respondent that since Shashi Devi has not obtained probate certificate, therefore, she is not entitled to execute the decree. The executing Court while accepting the objection raised by respondent closed the execution proceedings by holding that Shashi Devi would be free to execute the decree after obtaining the probate certificate. 6. In this manner, present revision application has been filed. 7. The contention of learned counsel for the applicant is that the parties belonged to State of Madhya Pradesh and the property is also in Madhya Pradesh, since the same is in district Katni. Thus, by placing reliance on the decision of this Court Mayank v. Public in General and others [ 2007 (1) MPWN 14 ] it has been argued that there is no necessity to obtain probate certificate. He has also placed reliance on another decision of this Court Kundanbai v. Hazarabi [1976 JLJ SN 93] in this regard. 8. On the other hand, Shri Yogendra Gautam, learned counsel for the respondent, has argued in support of the impugned order. 9. He has also placed reliance on another decision of this Court Kundanbai v. Hazarabi [1976 JLJ SN 93] in this regard. 8. On the other hand, Shri Yogendra Gautam, learned counsel for the respondent, has argued in support of the impugned order. 9. Having heard learned counsel for the parties, I am of the view that this revision application deserves to be allowed. 10. Admittedly, the suit property is in the State of Madhya Pradesh. The Division Bench of this Court in Damodarlal Sunderlal v. Gopinath Swiderlal and another [AIR 1956 Nagpur 209] has categorically held that by Notification No. 7988 dated 19.7.1904, the District Judges were authorized to receive applications for probate and letters of administration even in the case of Hindu Wills not falling under section 57 of the Hindu Succession Act. It was further observed that obtaining the probate certificate is not obligatory when the property is situated in the State of Madhya Pradesh and obtaining probate certificate was optional. In this decision it has also been held that the said notification dated 19.7.1904 is deemed to continue in force as one under sub-section (2) of section 264 of the Act. Thus, I am of the view that obtaining the probate certificate by applicant is only optional and not mandatory. 11. On visualizing and considering the ambit and scope of section 2 (11) of the Code where the term "legal representative" has been defined, I am of the view that it would also cover present applicant in whose favour Will has been executed by decree holder Gouri Bahu and if it is held that she would not come under the ambit and sweep of "legal representative", it would amount to throttling the purpose to define the term "legal representative" and the intention of the Legislature who has widened the scope of definition of 'legal representative' would also be frustrated. The Supreme Court in the case of Andhra Bank Ltd. v. Srinivasan and others [ AIR 1962 SC 232 ] has catgorically held in para 18 that a legatee who represents the estate of the deceased would be a legal representative in terms of section 2 (11) of the Code. It would be appropriate to quote para 18 of the decision which reads thus: "(18) Mr. It would be appropriate to quote para 18 of the decision which reads thus: "(18) Mr. Sastri concedes that a universal legatee would be a legal representative and he does not challenge that the person who intermeddles even with a part of the estate of the deceased is also a legal representative; but his argument is that a legatee who obtains only a part of the estate of the deceased under a Will cannot be said to represent his estate and is therefore not a legal representative under section 2 (11). We are not impressed by this argument. The whole object of widening the scope of the expression "legal representative" which the present definition is intended to achieve would be frustrated if it is held that legatees of different portions of the estate of a deceased do not fall within its purview. Logically it is difficult to understand how such a contention is consistent with the admitted position that persons who intermeddles with a part of the estate are legal representatives. Besides, if such a construction is accepted it would be so easy of the estate of a deceased to escape its legitimate liability to pay the debts or a deceased debtor only if the debtor takes the precaution of making several legacies to different persons by his Will. Besides, as a matter of construction, if different intermeddlers can represent the estate different legatees can likewise represent it. In regard to the intermeddlers they are said to represent the estate even though they are in possession of parcels of the estate of the deceased and so there should be no difficulty in holding that the cause "a person who in law represents the estate of a deceased person" must include different legatees under the Will. There is no justification for holding that the "Estate" in the context must mean the whole of the estate. Therefore, we are satisfied that the plain construction of section 2 (11) is against Mr. Sastri's argument, apart from the fact that considerations of logic and common sense are equally against it." (Emphasis supplied) 12. I may further add that the term "legal representative" can be equated with term "personal representative". Therefore, we are satisfied that the plain construction of section 2 (11) is against Mr. Sastri's argument, apart from the fact that considerations of logic and common sense are equally against it." (Emphasis supplied) 12. I may further add that the term "legal representative" can be equated with term "personal representative". To me, the term "legal representative" is having a wider connotation and would include not only the legal heir of the deceased but also intermeddlers of the estate of the deceased and also a person who, in law, represents the estate of the deceased and the definition should not restrict and confine to heirs alone. Thus, a legatee under the Will would also come under the ambit and sweep of "legal representative" as defined under section 2 (11) of the Code (See Chiranjilal Shrilal Goenka v. Jasjit Singh and others [ (1993) 2 SCC 507 ]). 13. On going through the definition of "legal representative" as defined under section 2 (11) of the Code, I am of the view that since the present applicant Smt. Shashi Devi is having the Will of deceased decree holder Gouri Bahu in her favour, the estate of Gouri Bahu is represented through Smt. Shashi Devi. To me, Smt. Shashi Devi is the person who is representing the estate of the deceased decree holder Gouri Bahu. It is not disputed that the Will has not been probated. But, at the same time, it can be held that the property has been devolved on the present applicant under the Will and, therefore, according to me, right to execute the decree could be claimed in respect of the suit property by applicant-Smt. Shashi Devi who represents the estate of the deceased. In this context, I may profitably rely on the decision of the Division Bench of this Court Shakuntala (Mst.) v. Shatrughan [ 1993 (2) MPWN 99 ]. 14. In the case of Kundanbai (supra), Single Bench of this Court has also taken the same view that if the property is situated in the Madhya Pradesh, obtaining of probate is not necessary. 15. 14. In the case of Kundanbai (supra), Single Bench of this Court has also taken the same view that if the property is situated in the Madhya Pradesh, obtaining of probate is not necessary. 15. In this view of the matter, I am of the view that the order of the executing Court holding that the probate certificate is necessary and directing the applicant to obtain probate certificate in order to get the decree passed in favour of deceased decree holder Gouri Bahu executed, deserves and is hereby set aside. The applicant Shashi Devi is permitted to execute the decree. 16. The revision application is hereby allowed. The executing Court is hereby directed to proceed further with the execution. Looking to the facts and circumstances, the parties are directed to bear their own costs.