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2016 DIGILAW 3296 (ALL)

ASHISH KUMAR PANDEY v. BAJRANG BALI PANDEY

2016-09-27

KRISHNA MURARI, PRASHANT KUMAR

body2016
JUDGMENT By the Court.—This appeal under Section 299 of the Indian Succession Act, 1925 (hereinafter referred to as the ‘Act’) is directed against the judgment and order dated 28.10.2015 passed by Additional District Judge, Court No. 1, Mirzapur rejecting the application made by the appellant for grant of probate. 2. We have heard Shri Rajeev Misra, learned counsel for the appellant and Shri Siddharth for the respondents. 3. Facts, in brief, giving rise to the dispute are as under : One Anil Kumar Upadhyay @ Munna, who was maternal uncle of the appellant and respondent Nos. 1 to 3, executed a Will in favour of the appellant and respondent Nos. 1 to 3 and 6 to 8 in respect of his all the moveable and immoveable properties. After his death on 9.5.2015, the appellant herein filed a Probate Case No. 14 of 2015 before the Additional District Judge, Court No. 1, Mirzapur for grant of probate in respect of Will dated 24.4.2015. 4. Respondent Nos. 1 to 5 filed their no objection before the Additional District Judge for grant of probate in favour of the appellant. Respondent Nos. 6 to 8, however, filed a written statement supporting the case of the appellant. However, they also claim probate of the Will in respect of the property bequeathed in their favour under the said Will. 5. Court below rejected the application for probate vide impugned judgment and order dated 28.10.2015 on the ground that the fact that only 13/1/4 anas share out of the offerings made by the devotees to Maa Vindhyavasini was bequeathed in favour of the appellant and respondent Nos. 6 to 8, each having equal share, goes to show that there were others, who were also having share in it and, thus, it was incumbent that all those interested persons and the trust be made a party and suit be filed on the basis of the Will before the competent Court and because of the same, the probate could not be issued. The other reason for rejecting the application for probate was that the details of the Bank where the locker is situated as also the details of the insurance company has not been disclosed, as such also, the probate application was liable to be dismissed. 6. The other reason for rejecting the application for probate was that the details of the Bank where the locker is situated as also the details of the insurance company has not been disclosed, as such also, the probate application was liable to be dismissed. 6. The question, which arises for our consideration, is whether a beneficiary under a Will can maintain a petition for obtaining probate under Section 213 of the Act? 7. Learned counsel for the appellant contends that the impugned judgment suffers from manifest error of law, inasmuch as the probate Court has only limited jurisdiction to decide whether the Will is genuine or not and it cannot adjudicate the right of the testator. It is also submitted that further reasons recorded by the Court below that no probate can be granted as the applicant has failed to disclose the details of the Banks where the locker was situated or the name of the insurance companies, is also patently illegal and beyond the scope of Section 213 of the Act. 8. In reply, Shri Siddharth appearing for the respondents states that he does not have any objection to the grant of probate of the Will. He has, in effect, supported the case set up by the appellant. 9. Section 213 of the Act provides right to the executer to obtain probate of the Will. The said Section reads as under. “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.” 10. Sub-section (2) of Section 213 provides that this Section shall not apply in the case of Wills made by Muhammadans or Indian Christians and shall only apply 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. 11. Section 276 provides the procedure to obtain probate. Section 273 of the Act declares conclusiveness of the probate. The said Section reads as under. “273. 11. Section 276 provides the procedure to obtain probate. Section 273 of the Act declares conclusiveness of the probate. The said Section reads as under. “273. Conclusiveness of probate or letters of administration.—Probate or letters of administration shall have effect over all the property and estate, movable or immovable, of the deceased, throughout the State in which the same is or are granted, and shall be conclusive as to the representative title against all debtors of the deceased, and all persons holding property which belongs to him, and shall afford full indemnity to all debtors, paying their debts and all persons delivering up such property to the person to whom such probate or letters of administration have been granted: Provided that probates and letters of administration granted- (a) by a High Court, or (b) by a District Judge, where the deceased at the time of his death had a fixed place of abode situate within the jurisdiction of such Judge, and such Judge certifies that the value of the property and estate affected beyond the limits of the State does not exceed ten thousand rupees, shall, unless otherwise directed by the grant, have like effect throughout the other States. The proviso to this section shall apply in India after the separation of Burma and Aden from India to probates and letters of administration granted in Burma and Aden before the date of the separation, or after that date in proceedings which were pending at that date. The proviso shall also apply in India after the separation of Pakistan from India to probates and letters of administration granted before the date of the separation, or after that date in proceedings pending at that date, in any of the territories which on that date constituted Pakistan.” 12. Under Section 294, the Court is under an obligation to preserve the original Wills. Section 299 gives right of appeal against an order of decree of probate. In Ishwardeo Narain Singh v. Smt. Kamta Devi, AIR 1954 SC 280 , the Hon’ble Apex Court held as under. “This Court held that the Court of probate is only concerned with the question as to whether the document put forward as the last will and testament of a deceased person was duly executed and attested in accordance with law and whether at the time of such execution the testator had sound disposing mind. “This Court held that the Court of probate is only concerned with the question as to whether the document put forward as the last will and testament of a deceased person was duly executed and attested in accordance with law and whether at the time of such execution the testator had sound disposing mind. The question whether a particular bequest is good or bad is not within the purview of the Probate Court. Therefore the only issue in a probate proceeding relates to the genuineness and due execution of the Will and the Court itself is under duty to determine it and preserve the preserve the original Will in its custody. The Succession Act is a self contained code in so far as the question of making an application for probate, grant or refusal of probate or an appeal carried against the decision of the probate Court. This is clearly manifested in the fasecule of the provision of Act. The probate proceedings shall be conducted by the probate Court in the manner prescribed in the Act and in no other ways. The grant of probate with a copy of the Will annexed establishes conclusively as to the appointment of the executor and the valid execution of the will. Thus it does no more than establish the factum of the will and the legal character of the executor. Probate Court does not decide any question, of title or of the existance of the property itself.” 13. The same view has been reaffirmed by the Hon’ble Apex Court in the case of Chiranjilal Shrilal Goenka v. Jasjit Singh and others, (1993) 2 SCC 507 . 14. The Court below has placed reliance on a Division Bench judgment of this Court in the case of Smt. Satnam Kaur v. Satyendra Pal Singh and others, 2015 (109) ALR 573, for holding that a beneficiary of Will is not required to obtain a probate of Will. 15. Not only the reliance placed by the Court below on such judgment is misfounded, but as a matter of fact, the Court below has misread the said judgment. No such proposition, as has been quoted in the impugned order by the Court below has been laid down by the Division Bench judgment in the case of the Smt. Satnam Kaur (supra). No such proposition, as has been quoted in the impugned order by the Court below has been laid down by the Division Bench judgment in the case of the Smt. Satnam Kaur (supra). In the said case, the probate Court rejected the application for grant of probate on the ground that probate of Will is not required because the property is not situate within the territorial jurisdiction mentioned in Section 213 of the Act. The judgment passed by the probate Court was based upon another Division Bench judgment of this Court in the case of Smt. Bimla Gaindher v. Smt. Uma Gaindher and another, 2004 (55) ALR 591, wherein the grant of probate of Will was dismissed on the ground that probate was 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. 16. In the case of Smt. Bimla Gaindher (supra), it was held that if the Will, in case, does not fall within the classes specified in clauses (a) and (b) of Section 57 of the Act and 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, the beneficiary under the Will is not required to obtain a probate of Will. It was argued on behalf of the appellant 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 order 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 provisions contained in the Indian Succession Act prohibits him to do so. 17. The Division Bench of this Court in the case of Smt. Satnam Kaur (supra) while considering the earlier judgment in the case of Smt. Bimla Gaindher (supra), has held as under. “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. 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.” 18. The Court below has failed to consider the aforesaid observations of the Division Bench and dismissed the application merely on the ground that according to law laid down by the Division Bench of this Court, probate of Will is not required. The Court below failed to consider that a person may not be required to obtain a probate of Will under Section 213 of the Act, but he may require a probate of Will for other purposes. 19. Thus, the Court below has not considered the law in right perspective and, as such, the impugned order suffers from illegality and infirmity, which makes it unsustainable and is liable to be set aside. 20. In the result, the appeal succeeds and stands allowed. 21. The impugned judgment and order dated 28.10.2015 passed by Additional District Judge, Court No. 1, Mirzapur in Probate Case No. 14 of 2015 is set aside. The matter stands remitted back to the District Judge, who shall register the probate application and proceed to adjudicate the same on merits in accordance with law. 22. However, in the facts and circumstances, we do not make any order as to costs.