Research › Search › Judgment

Karnataka High Court · body

2011 DIGILAW 535 (KAR)

H. S. Shivaraju v. Manjulamma

2011-05-30

JAWAD RAHIM

body2011
JUDGMENT 1. This miscellaneous second appeal is directed against the judgment dated 17.10.2008 in R.A. No. 24 of 2007 whereby the judgment of the Trial Court in O.S. No. 185 of 1994, dated 7.1.2005 on the file of Principal Civil Judge, Junior Division and Judicial Magistrate First Class, Mandya has been set aside and suit is remanded directing the Trial Court to record its finding on all the issues framed by it. 2. The 2nd defendant/respondent is in this appeal. 3. Heard, From what is urged and the reasons assigned by the learned Trial Judge and the Appellate Court, it is noticed that Smt. Manjulamma the First respondent herein had filed a suit against the appellant and others seeking decree to declare her as legatee under Will executed by the owner of the properties in question. The appellant and other respondents resisted the suit denying genuineness of the Will, its validity and questioned maintainability of the suit referring to provisions of section 213 of the Indian Succession Act, 1925 which according to them bars a Hindu from seeking any declaration as legatee unless probate is obtained. 4. The Trial Court, based on material propositions in the pleadings and the written statement framed 11 issues. However it treated issue No.10 regarding maintainability of the suit as a preliminary issue and passed the order impugned. Considering plea of the plaintiff that she claims right in respect of the suit property only under a Will, the learned Trial Judge held suit was barred as the probate is not obtained. No finding was recorded on issues 1 to 9 and 11. 5. In R.A. No.24 of 2007 preferred by the plaintiff, the appellant and another were given full opportunity and they reiterated their defence. Since the order impugned by which the suit was dismissed confined only to issue No. 10, learned Appellate Judge examined it thoroughly. On examining the nature of defence against the plea of the plaintiff, the learned Appellate Judge reversed finding of the Trial Court on issue No. 10 that suit was not maintainable suit and has remanded case to the Trial Court. Assailing the same, it is only the 2nd defendant who has filed his appeal. 6. The learned appellant’s Counsel assertively contends that provision of Section 213 of the Indian Succession Act apply non-suits the plaintiff unless he obtains probate of the Will. Assailing the same, it is only the 2nd defendant who has filed his appeal. 6. The learned appellant’s Counsel assertively contends that provision of Section 213 of the Indian Succession Act apply non-suits the plaintiff unless he obtains probate of the Will. Provision of Section 213 of the Indian Succession Act reads thus: “Section 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) 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 situated within those limits”. 7. The ground urged by the learned counsel is undoubtedly ignoring the provisions of section 57 which reads thus: “Section 57. Application of certain provisions of part to a class of Wills made by Hindus etc. 7. The ground urged by the learned counsel is undoubtedly ignoring the provisions of section 57 which reads thus: “Section 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 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, Sikh or Jaina on or after the 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”. Both the provisions are undoubtedly to be read together. 8. Section 213 applies only to the Wills referred to under Section 57 if the Executor or legatee is a Hindu or otherwise. The test to be applied is to see whether the Will propounded on the basis of which relief is sought is Will executed by a Hindu who was at that relevant point of time within the territories which on 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 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. Therefore, the test is to examine firstly whether the executor or the legatee was at the relevant time within territorial limits referred to above or whether the immovable properties covered under a Will are within those limits. In the instant case, the executor undoubtedly was in Mandya, State of Karnataka and the properties are also situate within the local limits of that District. Therefore, Section 213 has no application. In the instant case, the executor undoubtedly was in Mandya, State of Karnataka and the properties are also situate within the local limits of that District. Therefore, Section 213 has no application. Though learned Appellate Judge did not refer to these facts but the conclusion reached by the Appellate Judge that suit was maintainable and probate was not required is to be upheld. The contentions of the learned counsel that suit was barred without obtaining probate by a Hindu is discounted. Since the Trial Court has not recorded its finding on issues 1 to 9 and 11, the appellate Court has rightly, in exercise of power conferred by Rules 23 and 23-A of Order 41, remanded the case to the Trial Court directing it to give its finding on all the issues framed. No infirmity in the impugned order. Appeal is dismissed with cost of Rs. 2,000/-.