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2011 DIGILAW 192 (UTT)

Priya Adhikari v. State of Uttarakhand

2011-03-18

B.S.VERMA

body2011
JUDGMENT Hon’ble B.S.Verma, J. 1. Heard learned counsel for the parties and perused the record. 2. This appeal is directed against the order dated 3-6-2010 passed by the Civil Judge (Senior Division) Nainital in Succession Case No. 06 of 2010, Km. Priya Adhikari Vs. Relatives, whereby the application for grant of succession certificate has been rejected on the ground that the assets under the succession certificate pertain to will and that the provisions of Section 213 of the Indian Succession Act (for short the Act) are attracted to the present case. 3. Brief facts giving rise to the present appeal are that the appellant moved an application for grant of succession certificate under Section 372 of the Act in respect of assets left by deceased Amba Datt Dalakoti, who had died unmarried. The applicant-appellant is the real niece and that there is no other legal heir of the deceased. In support of the application, the appellant filed copy of the will etc. 4. Objections were invited. Respondent no. 2 filed her objection, paper no. 18-C on the ground that the respondent no. 2 is the widow of deceased Amba Datt and that there is no other legal heir of the deceased and the applicant has no concern with the deceased. 5. Both the parties filed documentary evidence in the case. 6. Learned court below after hearing learned counsel for the parties has concluded that since the parties to the petition are Hindus and the property which is subject-matter of succession certificate pertains to a will, therefore, the provisions of Section 213 of the Indian Succession Act are attracted and the applicant cannot claim the assets by way of succession certificate without any grant of probate. 7. Learned counsel for the appellant has vehemently argued that the learned lower court has erred in holding that succession certificate cannot be granted without obtaining probate. Learned counsel for the appellant has relied upon the case of Smt. Pitmo Vs. Shyam Singh [AIR, 1978, Allahabad, 301]. The Allahabad High Court while dealing with the provisions of Section 370 of the Act, in paragraph no.2 has inter alia held that a probate is not necessary for the establishment of a right under a will by a Hindu where the provisions of clauses (a) and (b) of Section 57 are not attracted. Shyam Singh [AIR, 1978, Allahabad, 301]. The Allahabad High Court while dealing with the provisions of Section 370 of the Act, in paragraph no.2 has inter alia held that a probate is not necessary for the establishment of a right under a will by a Hindu where the provisions of clauses (a) and (b) of Section 57 are not attracted. Since the will in question could not fall under clauses (a) and (b) of Section 57, Section 213 had no application to it. The bar contained in Section 370 of the Act is attracted only in a case to which Sections 212 and 213 apply. Since the provisions of Section 213 were not attracted in the case, there was no bar to the grant of succession certificate under Section 370 of the Act. 8. A reference to relevant extract of the Section 213 of the Act is necessary for a just decision of the case:- “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 the classes specified in clauses (a) and (b) of section 57; and (ii) xxx xxx xxx” 9. Clause (a) and (b) of Section 57 of the Act read as under:- “57. Clause (a) and (b) of Section 57 of the Act read as under:- “57. Application of certain provisions of 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 Lieutenant-Governor of Bengal or with 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 immoveable 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. 10. Having heard the submissions of learned counsel for the appellant and having perused the record, I am of the considered view that the provisions of clause (a) and (b) of Section 57 of the Act are undisputedly not attracted to the instant case. Moreover, it is not the case of either party that the will in question is of the classes specified in clauses (a) and (b) of Section 57 of the Act. In this view of the matter, learned court below was not justified in holding that the provisions of Section 213 of the Act were attracted to the case at hand. There is no bar to the grant of a succession certificate under Section 370 of the Act. I am further fortified in my view by the verdict of the Allahabad High Court in the case of Smt. Pitmo (supra). 11. In view of the discussion above, the appeal deserves to be allowed and the order under appeal is liable to be set aside. 12. The appeal is allowed with no order as to costs. The impugned order dated 3-6-2010 is set aside. The Succession Case No. 6 of 2010 stands restored to its original number. 11. In view of the discussion above, the appeal deserves to be allowed and the order under appeal is liable to be set aside. 12. The appeal is allowed with no order as to costs. The impugned order dated 3-6-2010 is set aside. The Succession Case No. 6 of 2010 stands restored to its original number. The matter is remanded to the court concerned for decision of the case afresh on merits, after affording opportunity of hearing to all the parties.