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2014 DIGILAW 2330 (ALL)

Satnam Kaur v. Satyedra Pal Singh

2014-08-05

MAHENDRA DAYAL, RAJIV SHARMA

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JUDGMENT : Rajiv Sharma and Mahendra Dayal, JJ. Both the aforesaid First Appeals from Order involve a common question of law as to whether a beneficiary under a will can maintain a petition for obtaining probate under Section 213 of the Indian Succession Act? The common facts in both the aforesaid appeals are that late Sardar Brijendra Singh Sarna (now deceased) executed two Wills, one registered Will dated 13.4.2005 was executed in favour of the appellant of F.A.F.O. No. 114 of 2013, namely, Smt. Satnam Kaur and another unregistered Will dated 24.3.2004 is alleged to have been executed by him in favour of the respondent no.2, who is the appellant in F.A.F.O. No. 222 of 2013, namely, Devendra Pal Singh. Both the appellants separately filed a petition for issue of probate. The petition filed by Smt. Sarnam Kaur was registered as Civil Misc. Case No. 167 of 2009 while the petition for grant of probate filed by Devendra Pal Singh was registered as Civil Misc. Case No. 225 of 2009. The learned court below by passing a common order rejected both the petitions for grant of probate, mainly on the ground that as per the law laid down by the Division Bench of this Court in the case of Smt. Bimla Gaindher v. Smt. Uma Gaindher and another, reported in [2004 (55) ALR 591], a probate of a Will is not required because the property is not situated within the territorial jurisdiction mentioned in Sub-section (2) of Section 213 of the Indian Succession Act. 2. We have heard learned Senior Advocate Mr. Mohd. Arif khan, assisted by Shri Mohd. Aslam Khan Advocate and Shri D.C. Mukherjee, who is for the respondent in FAFO No.114 of 2013 and appellant in FAFO No. 222 of 2013. 3. Both the aforesaid learned counsel have supported the arguments of each other and have argued that the law referred to by the court below does not fully apply to the facts of the present case. Their argument is that it may not be mandatory for a beneficiary of a will to obtain probate under Section 213 of the Indian Succession Act but in case such beneficiary wants to obtain a probate of will to be used for other purposes, there is no bar for such person to apply before the competent court for grant of probate of will. 4. 4. For the purposes of adjudication of this legal controversy it is relevant to reproduce the provisions of Sections 57, 213, 214 and 370 of the Indian Succession Act. "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 within the local limits of the ordinary original civil Jurisdiction of the High Courts of Judicature at Madras and Bombay ; (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. 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 Will made by Muhammadans, and shall only apply : (i) In the case of Will 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 Court at Calcutta, Madras and Bombay, and where such Wills are made outside those limits, in so far as they relate to immovable property situate within those limits. 214, Proof of representative title a condition precedent to recovery through the Courts of debts from debtors of deceased persons.- (1) No Court shall : (a) Pass a decree against a debtor of a deceased person for payment of his debt to a person claiming on succession to be entitled to the effects of the deceased person or to any part thereof, or (b) Proceed, upon an application of a person claiming to be so entitled, to execute against such a debtor a decree or order for the payment of his debt, except on the production, by the person so claiming of: (i) a probate or letters of administration evidencing the grant to him of administration to the estate of the deceased ; or (ii) a certificate granted under Section 31 or Section 32 of the Administrator-General's Act. 1913, and having the debt mentioned, therein ; or (iii) a succession certificate granted under Part X and "having the debt specified therein ; or (iv) a certificate granted under the Succession Certificate Act, 1989 ; or (v) a certificate granted under Bombay Regulation No. VIII of 1827, and, if granted after the first day of May, 1889, having the debt specified therein. (2) The word 'debt' in subsection (1) includes any debt except rent, revenue or profits payable in respect of land used for agricultural purposes. 370. Restriction on grant of certificates under this Part. - (1) A succession certificate (hereinafter in this Part referred to as certificate) shall not be granted under this Part with respect to any debt or security to which a right is required by Section 212 or Section 213 to be established by letters of administration or probate : Provided that nothing contained in this section shall be deemed to prevent the grant of a certificate to any person claiming to be entitled to the effects of a deceased Indian Christian, or to any part thereof, with respect to any debt or security, by reason that a right thereto can be established by letters of administration under this Act. (2) For the purposes of this Part, "security" means : (a) any promissory note, debenture, stock or other security of the Central Government or of a State Government; (b) any bond, debenture, or annuity charged by Act of Parliament of the United Kingdom on the revenues of India ; (c) any stock or debenture of, or share In, a company or other incorporated institution ; (d) any debenture or other security for money issued by, or on behalf of, a local authority; (e) any other security which the State Government may, by notification in the official Gazette, declare to be a security for the purposes of this Part" 5. The Division Bench case which has been relied upon by the learned court below lays down that if the Will in question does not fall within the clauses specified in Clauses (a) and (b) of Section 57 of the Act and the territorial jurisdiction of the property covered under the Will does not fall within the area specified in Sub- Section (2) of Section 213 of the Act, a beneficiary under the will is not required to obtain a probate of Will. 6. The learned counsel for the appellant has argued that under the provisions of Section 57 read with Section 213 of the Act a beneficiary of will may not be required to obtain a probate before acting upon a Will in his favour, but in case he wants to obtain a probate of Will executed in his favour then none of the provision contained in Indian Succession Act prohibit him to do so. 7. Section 213 of the Act prohibits that no right as executor or legatee can be established in any 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 a copy of an authenticated Will be annexed. However sub-section (2) of Section 213 creates an exception, according to which this provision will not apply in the case of will made by any Hindu, Buddhist, Sikh or Jaina where such will are of classes specified in Clauses (a) and (b) of Section 57 of the Act. However sub-section (2) of Section 213 creates an exception, according to which this provision will not apply in the case of will made by any Hindu, Buddhist, Sikh or Jaina where such will are of classes specified in Clauses (a) and (b) of Section 57 of the Act. Sub-section (2) further provides that the provision created by Section 213 of the Act will also not apply in the case of will by Parsi dying, after commencement of the Indian Succession (Amendment) Act, 1962, where such will are made within the local limits of the ordinary (original) civil jurisdiction of the High Court at Calcutta, Madras and Bombay, and where such wills are made outside those limits, in so far as they relate to immovable property situate within those limits. 8. Clause (a) of Section 57 of the Act provides that the provision of the Chapter dealing with grant of probate of will, apply to all wills and codicils made by any Hindu, Budhhist, Sikh or Jaina, on or after the first day of September, 1870 within the territories which at the said date where 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. In other words no probate is required for establishing right under a will falling under Clause (c) of Section 57 of the Act which applies 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). 9. The Division Bench of this Court while dealing in detail the aforesaid provisions of Indian Succession Act has held that in case the Will is executed after 1.1.1927 and the property under the Will does not fall within the territorial area as mentioned in clause (a) and (b) of Section 57 of the Act, the probate of Will is not required. 10. 10. The learned counsel for the appellant has submitted that the Division Bench of this Court, while considering the scope of Section 213 of the Act, has only considered that if a Will falls under the category as defined in clause (c) of Section 57 of the Act then beneficiary in the Will is not required to obtain a probate of a Will. But it has not been considered by the Division Bench that the bar created by Section 213 of the Act is only in respect of right as executor or legatee and not in respect of right in other capacity. The learned counsel submits that a Will is executed not only in respect of immovable property but also in respect of movable property and every where the beneficiary of the Will is required to prove due attestation of Will where he wants to derive some benefit under the Will. In order to avoid the proof of execution and attestation of Will everywhere if the beneficiary obtains probate of a will from the competent court, then it will not be necessary for him to prove due execution and attestation of the Will. The bar created by Sections 213 and 214 of the Act is not absolute bar for grant of probate on the basis of Will, rather it is optional and if the beneficiary of a Will requires the will to be placed before the various authorities then he has to prove authenticity and validity of the Will. In these circumstances the law laid down by the learned court below does not fully apply to the present case. The law laid down by the Division Bench only lays down that a Will is not required in the cases falling under clause (c) of Section 57 of the Act and the property under will fall beyond the territorial jurisdiction as mentioned in sub section (2) of Section 213 of the Act. 11. From the perusal of the impugned order passed by the learned court below we find that the learned court below, has rejected the application for grant of probate on the ground that the probate of Will is not required in view of the law laid down by the Division Bench of this Court. The learned court below has not rejected the applications for grant of probate on the ground of maintainability. 12. The learned court below has not rejected the applications for grant of probate on the ground of maintainability. 12. We have observed herein above that a beneficiary under a will may not be required to obtain a probate of Will under the provision of Section 213 of the Act but in case he wants to get a probate of Will to be used before the other authorities, there is no bar for him to apply for grant of probate. We may clarify our view by giving an example. If a person has bank deposits and other movable property kept in locker of the bank or anywhere else, executes a Will providing that after his death the movable property will devolve upon a particular person and after the death when such person approaches the bank claiming possession of such movable property and demands money on the basis of such Will, the bank authorities always demand either a succession certificate or a probate of a Will in order to ascertain the genuineness and authenticity of the Will. Similarly if a person executes a Will about the post retiral benefits then in that case also, the concerned department demands either succession certificate or in case of a Will, a probate to pay him post retiral dues. In all such cases although the beneficiary of the will may not be required to obtain a probate for will in view of the Section 213 of the Act, but for the payment of such amount and possession of movable property, he has to approach the competent authority for grant of succession certificate or probate of a will, as the case may be. 13. It will also not be out of place to mention here that the applications for grant of probate of will are cognizable by the High Court also as provided under Chapter XXX of the Allahabad High Court Rules, 1952. Thus it cannot be said that the applications for grant of probate of will are not required in Uttar Pradesh. 14. It will also not be out of place to mention here that the applications for grant of probate of will are cognizable by the High Court also as provided under Chapter XXX of the Allahabad High Court Rules, 1952. Thus it cannot be said that the applications for grant of probate of will are not required in Uttar Pradesh. 14. The learned court below has failed to consider this important aspect of the matter and has dismissed the application, merely, on the ground that according to the law laid down by the Division Bench of this Court the probate of a will is not required but the learned court below has failed to consider that a person may not be required to obtain probate of will under Section 213 of the Act but he may require a probate of will for other purposes. Thus the learned court below has not considered the law in the right perspective and as such the impugned order suffers from illegality and infirmity which is liable to be set aside. 15. In the result both the appeals are allowed and the impugned orders dated 6.12.2012 passed by the Additional District Judge Court No.3, Lakhimpur Kheri, passed in Civil Misc. Case Nos. 167 of 2009 and 225 of 2009 are hereby quashed and the court below is directed to restore both the Civil Misc. Cases to their original numbers and decide the matter afresh in the light of observation made in this judgement after giving opportunity of hearing to both the parties, preferably within a period of six months from the date of production of a certified copy of this order. Appeals Allowed.