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2014 DIGILAW 2906 (ALL)

SUNIL KUMAR v. CHAITANYA PRAKASH

2014-09-18

SHASHI KANT GUPTA

body2014
JUDGMENT Hon’ble Shashi Kant Gupta, J.—This revision has been filed against the order dated 7.5.2011 passed by Additional Civil Judge, Senior Division, Court No. 2, Meerut in Original Suit No. 710 of 2005, whereby the Issue Nos. 6 and 7 has been decided in favour of the plaintiffs/opposite parties. 2. The petitioner is a defendant in the suit. The plaintiffs filed a suit for partition and claimed shares in the property in dispute on the basis of the Will executed in their favour. One set of the defendant filed another Will claiming shares on the basis of the said Will. Another 2nd set of the defendants filed third Will claiming their share on the basis of the Will allegedly executed in their favour. The defendants moved an application under Order 7 Rule 11 C.P.C. for the return of the plaint on the ground that the claim on the basis of the Will cannot be adjudicated unless the Will is approved by the competent Court by issuing the probate under Section 213 of the Indian Succession Act (hereinafter referred to as the “Act”) and, therefore, the plaint is liable to be returned. 3. In the suit, two issues, namely, issue Nos. 6 & 7 have been framed. It was framed that whether the suit is barred by Section 213 of the Act and whether barred under Order 7 Rule 11 C.P.C. Both the issues have been decided against the revisionist by the impugned order and, therefore, the present revision has been filed. 4. Learned counsel for the revisionist submitted that unless under Section 213 of the Act, the probate is sought in respect of the Will, no claim can be made against the Will and, therefore, the claim of partition on the basis of the Will is not sustainable and the plaint is liable to be returned. 5. In support of the contention, learned counsel for the revisionist relied upon the decisions in the case of Ram Shankar v. Balakdas, AIR 1992 Madhya Pradesh 224, T. Venkata Narayana and others v. Smt. Venkata Subbamma (dead) and others, AIR 1996 SC 1807 and Amar Deep Singh v. The State and others, AIR 2006 Delhi 190. 6. Per contra, learned counsel for the respondent has supported the impugned order and submitted that the impugned order passed by the Court below is in accordance with law. 6. Per contra, learned counsel for the respondent has supported the impugned order and submitted that the impugned order passed by the Court below is in accordance with law. He further referred to the provisions of Section 57 of the Indian Succession Act, 1925 and relied upon the decision of the Apex Court in the Case of Clarence Pais v. Union of India, (2001) 4 SCC 325 and also relied upon the decisions of this Court passed in the cases of Bhaiya Ji v. Jageshwar Dayal Bajpai, AIR 1978 All 268 and Kundan Lal v. Banwari Lal, 1969 ALJ 946. 7. Heard learned counsel for the parties and perused the record. 8. Before I proceed further in the matter, it is relevant to reproduce for convenience the extract of Section 57 read with Section 213 of the Indian Succession Act around which the controversy revolves : “[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; 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 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 1[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 [or Indian Christians], or 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 civil jurisdiction of the High Courts 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. 9. From the perusal of the aforementioned provisions, it is quite evident that a probate will not be required to be obtained by a Hindu in respect of a will made regarding the immovable properties situate in Uttar Pradesh. The same view taken by this Court in the Case of Naubat Ram v. Gayatri Devi, 1968 ALJ 69. Here in the present case, the parties are Hindu and the property situate in the State of Uttar Pradesh, as such, Section 57 read with Section 213 of the Indian Succession Act is not at all application in the present case. 10. At this juncture, it is useful to refer the observations made by the Apex Court in the case of Clarence Pais and others v. Union of India, (2001) 4 SCC 325 , which reads as follows: “The scope of Section 213(1) of the Act is that it prohibits recognition of rights as an executor or legatee under a will without production of a probate and sets down a rule of evidence and forms really a part of procedural requirement of the law of forum. Section 213(2) of the Act indicates that its applicability is limited to cases of persons mentioned therein. Certain aspects will have to be borne in mind to understand the exact scope of this section. The bar that is imposed by this section is only in respect of the establishment of the right as an executor or legatee and not in respect of the establishment of the right in any other capacity. The section does not prohibit the will being looked into for purposes other than those mentioned in the section. The bar that is imposed by this section is only in respect of the establishment of the right as an executor or legatee and not in respect of the establishment of the right in any other capacity. The section does not prohibit the will being looked into for purposes other than those mentioned in the section. The bar to the establishment of the right is only for its establishment in a Court of justice and not its being referred to in other proceedings before administrative or other Tribunal. The section is a bar to everyone claiming under a will, whether as plaintiff or defendant, if no probate or Letters of Administration is granted. The effect of Section 213(2) of the Act is that the requirement of probate or other representation mentioned in sub-section (1) for the purpose of establishing the right as an executor or legatee in a Court is made inapplicable in case of a will made by Muhammadans and in the case of wills coming under Section 57(c) of the Act. Section 57(c) of the Act applies to all wills and codicils made by any Hindu, Buddhist, Sikh or Jain, on or after the first day of January, 1927 which does not relate to immovable property situate within the territory formerly subject to the Lieutenant-Governor of Bengal or within the local limits of the ordinary civil jurisdiction of the High Courts of Judicature at Madras and Bombay, or in respect of property within those territories. No probate is necessary in the case of wills by Muhammadans. Now by the Indian Succession [Amendment] Act, 1962, the section has been made applicable to wills made by Parsi dying after the commencement of the 1962 Act. A combined reading of Sections 213 and 57 of the Act would show that where the parties to the will are Hindus or the properties in dispute are not in territories falling under Section 57(a) and (b), sub-section (2) of Section 213 of the Act applies and sub-section (1) has no application. As a consequence, a probate will not be required to be obtained by a Hindu in respect of a will made outside those territories or regarding the immovable properties situate outside those territories. As a consequence, a probate will not be required to be obtained by a Hindu in respect of a will made outside those territories or regarding the immovable properties situate outside those territories. The result is that the contention put forth on behalf of the Petitioners that Section 213(1) of the Act is applicable only to Christians and not to any other religion is not correct. 11. Learned counsel for the revisionist has relied upon the decision of the Apex Court in the case of T. Venkata Narayana and others v. Smt Venkata Subbamma (dead) and others, AIR 1996 SC 1807 . The authority cited by the learned counsel for the revisionist is not at all applicable in the present case. In the said case the Apex Court has not considered the implication of Section 57 read with Section 213 of the Indian Succession Act. However, the Apex Court in his subsequent decision in the case of Clarence Pais v. Union of India (Supra) has made it clear that a probate will not be required to be obtained by a Hindu in respect of a will made with respect to the immovable properties situate in Uttar Pradesh. 12. The Court below has given cogent, convincing and satisfactory reasons while passing the impugned order. Reasons mentioned therein are good enough to satisfy the impugned order and no fault can be found with the approach adopted by the Court below. 13. In view of what has been discussed, herein above, I do not find any illegality, infirmity or perversity in the impugned order which may warrant any interference. 14. In the result, the revision fails and is accordingly dismissed and the interim order is discharged. 15. Before parting with the case, I am constrained to note that even though the suit was filed in the year 2005 and about nine years have passed, still the matter is lingering on and has not been decided. Therefore, the Court below is directed to dispose of the matter, if possible, within a period of Six months from the date of receipt of certified copy of this order. —————