Research › Search › Judgment

Madras High Court · body

2014 DIGILAW 4308 (MAD)

Petitioner v. Respondent

2014-11-18

PUSHPA SATHYANARAYANA

body2014
Judgment 1. This is an application taken out by the plaintiffs seeking leave to mark the certified copy of the Will dated 17.01.1976 executed by deceased P.V. Jagadeesa Gramani on their side. 2. The suit is filed for declaration that the Partition Deed dated 04.01.2008 is void and not acted upon and not binding on the plaintiffs and for other reliefs. 3. From the materials available on record, it is seen that the first plaintiff Sundara Mahalingam, who examined himself as P.W.1, filed proof affidavit and sought to mark the certified copy of the Will dated 17.01.1976 for which there was an objection by the defendants on the ground that the Will which had been executed in the Presidency Town of Madras, had not been probated hence, the same cannot be received in evidence. 4. Learned counsel for the applicants contended that the property bequeathed under the Will is situate in Virugambakkam Village which, on the date of execution of the Will, was not within the jurisdictional limits of Madras High Court. Therefore, according to the learned counsel for the plaintiffs, the Will need not be probated. 5. Per contra, learned counsel for the second defendant/respondent filed counter and submitted that as per Section 57 of the Indian Succession Act, the Will ought to have been probated. Merely because the property is outside the jurisdiction, will not exempt the requirement of the probate as the Will was executed at T. Nagar within the jurisdiction of this Court and it has to be probated as required under Section 57 of the Indian Succession Act. 6. Heard the learned counsel appearing for the applicants and the learned counsel representing the respondents and perused the records. 7. In support of his contention, learned counsel appearing for the plaintiffs/applicants placed reliance on the decision of this Court in K.Subramani vs. P. Rajesh Khanna [2008 (6) CTC 123] wherein the certified copy of the Will was allowed to be marked based onthe judgment of the Hon'ble Supreme Court in Bipin Shantilal Panchal vs. State of Gujarat and another [ 2001 (3) SCC 1 ]. While the certified copy was allowed to be marked, it was observed in the said judgment that mere marking of the document will not amount to proof and it was allowed. Hence, in the decision cited supra, the certified copy of the Will was allowed to be received in evidence. 8. While the certified copy was allowed to be marked, it was observed in the said judgment that mere marking of the document will not amount to proof and it was allowed. Hence, in the decision cited supra, the certified copy of the Will was allowed to be received in evidence. 8. The said judgment may not be applicable to the facts of the present case. In the instant case, the testator was residing in T. Nagar and the Will was executed from the same address. The Will was also registered before the Sub-Registrar Office, North Madras. This fact could not be disputed by the learned counsel for the applicants. More over, the applicants/plaintiffs have laid the very suit on the basis of the Will pursuant to which his vendor had got right and title. Therefore, unless the Will is probated, no right or title would flow to the legatee under the Will. 9. It is settled proposition of law that in view of the bar contained in Section 213 of the Indian Succession Act, an un-probated Will cannot be admitted in evidence in any proceeding to establish the right or title derived under the Will. No doubt, such Will can be received in evidence for collateral purpose. But in this case, admittedly, the plaintiffs have purchased the property from the legatee. Therefore, the right and title of the vendor of the plaintiffs have to be decided only based on the Will which is not a collateral purpose. In view of the specific bar under Section 213 of the Indian Succession Act, unless the Will is probated, it will not have any evidentiary value. 10. In this regard, learned counsel for the respondents/defendants placed reliance on the decision in G. Ganesan vs. P.Sundari [ 2011 (2) CTC 435 ] wherein, following the Full Bench of this Court in Ganshmdoss vs. Gulab Bi Bai [AIR 1927 Madras 1054], the Division Bench of this Court has held that an un-probated Will is not admissible in evidence to prove the title. As per Section 213 of the Indian Succession Act, no person can claim as a legatee or as an executor unless he obtains Probate or Letters of Administration of the Will under which he claims. 11. As per Section 213 of the Indian Succession Act, no person can claim as a legatee or as an executor unless he obtains Probate or Letters of Administration of the Will under which he claims. 11. Learned counsel for the applicants also contended that Section 57 will not apply to the Will in question, as the property is situate outside the civil jurisdiction of this Court. As found earlier, even though the property under the Will situates outside the jurisdiction, when the execution is admittedly within the jurisdiction of this Court, Section 57 Indian Succession Act will have applicability and unless the Will is probated, no right would flow to the applicants/plaintiffs as legatee. In this regard, the Division Bench aforesaid, has, observed in paragraph 20 as follows:- “In our view, as we have already concluded, the unprobated Will is sought to be proved not for any collateral purpose but for the main purpose of proving that the said Will is the last free Will of the testator cancelling the earlier registered Will. For this main purpose, unless the said Will is probated, the same cannot be admitted in evidence.” In view of the above factual and legal position, the application filed by the plaintiff to mark the un-probated Will in evidence, cannot be permitted as the same has got no evidentiary value. Hence, this application is dismissed.