1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
TRANSFER PETITION (CIVIL) No.970 OF 2016
RAVINDER NATH AGARWAL … PETITIONER
Versus
YOGENDER NATH AGARWAL & ORS. … RESPONDENT(S)
WITH
TRANSFER PETITION (CIVIL) No.2779 OF 2019
J U D G M E N T
1. While Transfer Petition (C) No.970 of 2016 is for the transfer of
a suit for partition, pending on the file of the Additional District
Judge, Saket Court, New Delhi to a Court of competent jurisdiction
in the District of Nainital, Uttarakhand, Transfer Petition (C)
Signature Not Verified
No.2779 of 2019 is for the transfer of a testamentary case pending
Digitally signed by
Rachna
Date: 2021.02.12
18:21:43 IST
Reason:
on the file of the High Court of Uttarakhand, Nainital to the District
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Court at Saket, New Delhi.
2. I have heard the learned counsel for the respective parties.
3. One Shri Badri Nath Agarwal, who was ordinarily a resident of
Village Bithoriya No.1, Tehsil Haldwani, District Nainital,
Uttarakhand, died on 07.05.2011, at the ripe old age of 91 years,
leaving behind him surviving, five sons and a daughter. They were
(1) Major Ravinder Nath Agarwal, (2) Surender Nath, (3) Narender
Nath, (4) Virender Nath Agarwal, (5) Lily Nath (daughter) and (6)
Yogender Nath Agarwal. Out of these six children, Shri Narender
Nath is now no more. He died on 06.09.2019 leaving behind his wife
Smt. Ira Joshi and two sons by name Nikhil Nath and Aditya Nath.
4. Claiming that his father Late Badri Nath executed his last Will
and Testament on 06.04.2011, cancelling and revoking his previous
Will dated 26.06.2005 and that under the last Will dated
06.04.2011, a vast extent of agricultural land in Village Bithoriya
No.1, Tehsil Haldwani, District Nainital, was bequeathed to him, the
eldest son Major Ravinder Nath Agarwal got mutation effected in his
favour in the revenue records, but the same became the subject
matter of a writ petition filed by Lily Nath on the file of the High
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Court of Uttarakhand. Apart from filing a writ petition challenging
the mutation effected in favour of her eldest brother, Lily Nath also
filed a civil suit in Suit No.57 of 2011 on the file of Civil Judge,
Senior Division, Nainital seeking a decree of permanent injunction.
As a counter blast, Major Ravinder Nath, who claims to be the
legatee under the Will and who got mutation effected in his favour
in respect of one property, also filed civil suit in Suit No.72 of 2011
on the file of the Civil Judge, Senior Division seeking a decree of
permanent injunction.
5. Thereafter the last son Shri Yogender Nath, filed a suit in C.S
No.2745 of 2012 on the file of High Court of Delhi, for a partition of
all the properties left behind by Shri Badri Nath. The suit was filed
in September2012. But in the year 2016, presumably after the
filing of the written statements, the said suit was transferred to the
file of the Additional District Judge, Saket Court, New Delhi and re
numbered as C.S No.126 of 2016.
6. Immediately thereafter, Major Ravinder Nath Agarwal filed the
first of these transfer petitions namely T.P (C) No. 970 of 2016,
seeking the transfer of the partition suit pending on the file of the
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Additional District Judge, Saket, New Delhi to the Court of District
Judge at Nainital, Uttarakhand. On 08.07.2016, this Court ordered
notice in the transfer petition and also granted stay of further
proceedings in the partition suit.
7. But a few days before this Court ordered notice and granted
stay, the plaintiff in the partition suit namely Sh. Yogender Nath
(last son) abandoned the suit and hence the only daughter Lily Nath
got herself transposed as the plaintiff, by moving an application
under Order XXIII Rule 1A. The original plaintiff Yogender Nath
was transposed as defendant No.5.
8. On 09.10.2018, this Court passed an order in T.P (C) No. 970
of 2016, vacating the stay of further proceedings in the partition
suit earlier granted on 08.07.2016. Thereafter the eldest son Major
Ravinder Nath filed a petition in Testamentary Case No.01 of 2019
on the file of the High Court of Uttarakhand at Nainital, seeking the
grant of letters of administration with the Will dated 06.04.2011
annexed thereto, under Section 276 read with Sections 250 and
273(b) of the Indian Succession Act, 1925. Upon receipt of
summons in the said testamentary case, the daughter Lily Nath
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came up with the second transfer petition namely T.P (C) No.2779
of 2019, praying for the transfer of the testamentary case from
Uttarakhand High Court to the District Court, Saket, New Delhi
where her partition suit is now pending, so that both could be tried
together.
9. Thus, I have on hand two transfer petitions, one of the year
2016, filed by the eldest son seeking a transfer of the partition suit
from the District Court, Saket, New Delhi to the District Court,
Nainital, Uttarakhand and another of the year 2019 filed by the
plaintiff in the partition suit seeking the transfer of the
testamentary case pending on the file of the High Court of
Uttarakhand to the District Court at Saket, to be tried together with
her partition suit. Since the eldest son Major Ravinder Nath, is the
petitioner in the first transfer petition, he shall hereinafter be
referred to as “the petitioner” and Ms. Lily Nath shall be referred to
as “the contesting respondent”.
10. Before I proceed further, it should be brought on record that
the earliest of the civil suits namely C.S No.57 of 2011 filed by the
daughter Lily Nath for a decree of permanent injunction, on the file
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of the Civil Judge, Senior Division, Nainital was dismissed for non
prosecution on 27.11.2015. However, the second suit in C.S No.72
of 2011 filed by Major Ravinder Nath, seeking a decree of
permanent injunction is still pending on the file of the Civil Judge,
Senior Division, Nainital. I am not concerned with this civil suit, as
it is not the subject matter of any transfer petition.
11. The short question that arises for consideration in these
transfer petitions, is as to whether the partition suit pending on the
file of the District Court at Saket, New Delhi from the year 2016
(instituted in 2012), should be transferred to the District Court,
Nainital, Uttarakhand or whether the testamentary case pending on
the file of the High Court of Uttarakhand from 2019, should be
transferred to the District Court, Saket, so that it could be tried
along with the partition suit already pending there.
12. Before I take up for consideration, the rival contentions, three
important aspects have to be borne in mind. They are:
The High Court of Uttarakhand at Nainital does not have
(i)
ordinary original civil jurisdiction, though it has jurisdiction to
entertain a testamentary case for the grant of probate or letters of
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administration. Therefore, the partition suit pending in the District
Court, Saket cannot be transferred to the High Court of
Uttarakhand, but can be transferred only to a District Court in
Nainital. The District court, Nainital will not have jurisdiction to
grant probate/letters of administration in respect of a property
located outside its territorial limits, if its value exceeds Rs.10,000/.
Per contra , both the High Court of Delhi as well as the District
Court, Saket, have jurisdiction to entertain an application for the
grant of probate/letters of administration subject to certain
conditions/restrictions;
(ii) The last Will and Testament dated 06.04.2011 set up by the
eldest son Major Ravinder Nath, covers two properties, one of which
is a MIG flat promoted by the Delhi Development Authority at
Saket, New Delhi. The other property is a bhumidhari land lying in
Khata No.741 measuring an extent of 6.8550 hectares in Village
Bithoriya No.1, Tehsil Haldwani, District Nainital, Uttarakhand,
along with a residential house, service quarters and sheds.
Therefore by virtue of Section 264(1) of the Indian Succession Act,
1925, the District Judge, Saket has jurisdiction to entertain a
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petition for the grant letters of administration, at least in respect of
the property at Delhi; and
(iii) The partition suit was filed in the year 2012 on the file of the
High Court of Delhi and was transferred to the District Court, Saket
in the year 2016. At the time when the eldest son Major Ravinder
Nath came up with T.P (C) No.970 of 2016, no proceeding for the
grant of letters of administration was pending in the High Court of
Uttarakhand. Actually the petitioner in T.P (C) No.970 of 2016
chose to file a testamentary case in the High Court of Uttarakhand
only in January 2019, after the stay of partition suit granted in T.P
(C) No.970 of 2016 was vacated on 09.10.2018. Therefore it must be
remembered that the petitioner in T.P (C) No.970 of 2016 created a
situation that could be taken advantage of by him.
13. Keeping the above background in mind, let me now look at the
grounds on which the transfer of the partition suit from Delhi to
Nainital is sought. In the transfer petition T.P (C) No.970 of 2016
the petitioner has contended :
(i) that he was 68 years of age (at that time), suffering from
many diseases and undergoing cardiac care treatment
with implanted pace maker;
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(ii) that he had suffered a paralytic stroke on the right side
of the body and a blood clot in the brain;
(iii) that the respondents were already contesting the
mutation case in Haldwani;
(iv) that three of the respondents are foreign nationals
residing out of India;
(v) that the subject matter of the suit includes an immovable
property situate within the jurisdiction of the competent
Court in Nainital; and
(vi) that there is a bar of jurisdiction of other Courts under
Uttar Pradesh Zamindari Abolition and Land Reforms
Act.
14. In addition to the grounds indicated in the transfer petition, it
is also contended by Sh. Gopal Sankaranarayanan, learned Senior
Counsel and Sh. Manish Kumar, learned counsel for the petitioner
that in a petition for transfer, the location and convenience of the
parties, subject to the territorial jurisdiction of the Courts, should
also be taken into account; that in the testamentary case, an
application under Section 10 CPC was filed, but before the High
Court of Uttarakhand could pass orders on the application under
Section 10, the second transfer petition came to be filed; that
testamentary proceedings, being proceedings in rem , will have
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primacy over other proceedings and, hence, the partition suit is
liable to be transferred; and that by virtue of Proviso (b) of Section
273 of the Indian Succession Act, any probate/letters of
administration granted by the District Court at Saket will not have
effect in other States, unless the value of the property and estate
affected beyond the limits of the State does not exceed Rs.10,000/.
15. While Sh. Gopal Sankaranarayanan, learned Senior Counsel
cited the decisions of this Court in Ishwardeo Narain Singh vs.
1
. ;
Smt. Kamta Devi and Others Chiranjilal Shrilal Goenka vs.
2
Jasjit Singh and Others ; T. Venkata Narayana and Others vs.
3
Venkata Subbamma (Smt.) (dead) & Others ; Balbir Singh Wasu
4
vs. Lakhbir Singh & Others , Sh. Manish Kumar learned
Counsel relied upon
Smt. Rukmani Devi and Others vs.
5
Narendra Lal Gupta .
16. In response, Ms. Nitya Ramakrishnan and Sh. H.S. Sharma,
learned counsel appearing for the respondents contended that the
testamentary proceedings were initiated deliberately in Uttarakhand
1 AIR 1954 SC 280
2 (1993) 2 SCC 507
3 (1996) 4 SCC 457
4 (2005) 12 SCC 503
5 (1985) 1 SCC 144
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after seven years of the institution of the partition suit in Delhi and
that the petitioner in the first transfer petition is guilty of abuse of
the process of Court.
17. As can be seen from the rival contentions, most of them are on
factual foundation. However, one contention advanced on behalf of
the petitioner, is purely legal and deserves a deeper scrutiny.
Therefore, I shall take up that contention first.
18. According to the petitioner, who is eldest of the siblings and
who has set up a Will, the proceedings in a testamentary case are
proceedings in rem and that, therefore, they will have primacy and
that, irrespective of the fact that the testamentary proceedings were
initiated much after the institution of the partition suit, the
partition suit and not the testamentary case, is liable to be
transferred. In support of these contentions, the learned counsel
appearing for the petitioner has relied upon certain decisions. The
first of these decisions is that of this Court in Ishwardeo Narain
Singh (supra). This Judgment is relied upon only for the limited
purpose of showing that a Court of probate is concerned only with
the question whether the document put forward as the last Will and
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Testament was duly executed and attested in accordance with law
and whether at the time of execution, the testator was in a sound
and disposing state of mind. We are not concerned in this case with
the question as to the nature of the proceedings for probate or
letters of administration. Therefore, the said decision is of no
assistance for deciding the question on hand.
19. In Chiranjilal Shrilal Goenka (supra), the primary question
that arose was as to whether an arbitrator appointed by this Court,
by consent of parties, would have jurisdiction to deal even with the
proceedings for probate. Answering the question in the negative,
this Court held that the probate Court alone has been conferred
with the exclusive jurisdiction to grant probate or letters of
administration and that even by consent, the parties cannot confer
jurisdiction upon an arbitrator to adjudicate upon the proof or
validity of the Will. Obviously this decision is only on the question
of jurisdiction of an arbitral tribunal relating to testamentary
proceedings and not about the right of a party to seek transfer of a
proceeding, from one Court to another, when both Courts are
claimed to have jurisdiction.
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20. In T. Venkata Narayana (supra), the question before this
Court was whether secondary evidence could be led, in a suit for
injunction, to prove an alleged Will. This Court held that a suit for
injunction cannot be converted into a suit for probation of a Will
and that if the Will is to be proved according to law, it has to be by
way of a probate proceeding in the Court having competency and
jurisdiction according to the procedure prescribed in the Indian
Succession Act. But this decision does not lay down (and could not
have laid down) any proposition that all Wills executed by all
classes of persons in all areas throughout the country require
probate/letters of administration, as we shall see later.
21. Balbir Singh Wasu (supra) is the only case where this Court
was concerned with the question whether the proceedings for
probate initiated later in point of time than a suit for declaration
and injunction could proceed further or not. In this case, the party
who had first filed a suit for declaration and injunction before the
Court of a Civil Judge, sought stay of the probate proceedings
initiated by the opposite party in the High Court, later in point of
time, on the basis of Section 10 of the Code of Civil Procedure. The
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High Court rejected the prayer for stay on the ground that the
pendency of the suit for declaration will not bar the High Court
from entertaining probate proceedings. Without answering the
question revolving around section 10, CPC directly, this Court held
in : (i) that a decision on the appellant’s civil
Balbir Singh Wasu
suit would not conclude the probate proceedings; (ii) that the
question whether probate should be granted or not would still be
left to be determined by the High Court, though the decision of the
civil Court may be relevant even in those proceedings; and (iii) that
though the requirement of Section 213 of the Indian Succession
Act, for an executor to obtain probate, may not apply to all the
areas outside the presidency towns (or the notified areas), there is
no prohibition for an executor to apply for probate as a matter of
prudence or convenience, even in cases where they are not covered
by Section 213.
22. There are two interesting aspects to the decision in
Balbir
Singh (supra). They are: (i) Without deciding the question whether
an application under Section 10 CPC would lie or not, this Court
transferred the probate proceedings from the High Court to a
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District Court which was competent to entertain probate
proceedings and transferred the suit for declaration also to the
same Court so that both of them could be clubbed and heard
together. Unfortunately, this Court omitted to take note of the fact
that in cases where no probate is mandatorily required by law, the
Will could be relied upon in any civil action, even without getting it
probated. (ii) Balbir Singh followed another decision of this court
6
in It was a case where
Nirmala Devi vs. Arun Kumar Gupta .
probate proceedings were initiated in 1997 with respect to a Will of
the year 1984. A civil suit was already pending from 1987, but this
Court merely ordered the transfer of the civil suit pending on the
file of the subJudge to the Court of the District Judge where
probate proceedings were pending, so that both could be clubbed
together and disposed of.
23. This Court did not consider or did not have an occasion to
consider in any of the above decisions, the difference between cases
where a party is entitled to rely upon a Will in a judicial proceeding
even without getting probate/letters of administration and cases
where there is a bar for the production of a Will in a judicial
6 (2005) 12 SCC 505
16
proceeding without first getting probate/letters of administration.
The primacy to be accorded to probate proceedings would depend
upon the category to which the case belongs.
24. Having said that, let us now take a closer look at some of the
provisions of the Indian Succession Act, 1925.
25. The Indian Succession Act, 1925 is divided into 11 parts, with
some of the parts subdivided into several chapters. Part VI of the
Act comprising of 23 Chapters, contains exhaustive provisions
relating to “Testamentary Succession”. Sections 57 to 191 of the Act
are included in this Part.
26. Part IX of the Act contains Sections 217 to 369, divided into
13 chapters. Chapter IV of Part IX contains provisions governing
“the practice in granting and revoking probates and letters of
administration.” Sections 264 to 302 are found in this Chapter. The
procedure for making an application for probate or for letters of
administration with the Will annexed, is provided in Section 276.
27. The District Judge is conferred with the jurisdiction to grant
and revoke probates and letters of administration in all cases within
his District, under Section 264 of the Act. Section 264 reads as
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follows:
| “ | 264. Jurisdiction of District Judge in granting and | | |
|---|
| revoking probates, etc | | .— | (1) The District Judge shall have |
| (2) Except in cases to which section 57 applies, no Court in<br>any local area beyond the limits of the towns of Calcutta,<br>Madras and Bombay, shall, where the deceased is a Hindu,<br>Muhammadan, Buddhist, Sikh or Jaina or an exempted<br>person, receive applications for probate or letters of<br>administration until the State Government has, by a<br>notification in the Official Gazette, authorised it so to do.” | |
|---|
| | |
| 28. It may be seen from Subsection (2) of Section 264, that it<br>imposes a bar upon the Courts in any local area beyond the limits<br>of the towns of Calcutta, Madras and Bombay, from receiving<br>applications for probate or letters of administration, until the State<br>Government, by a notification in the Official Gazette, authorized<br>them so to do, wherever the deceased is a Hindu, Muhammadan,<br>Buddhist, Sikh or Jaina or an exempted person. But the bar under<br>Subsection (2) has no application to cases, to which Section 57<br>applies. | | |
| 29. Section 57 of the Act reads as follows: | | |
| “ | 57. Application of certain provisions of Part to a class | |
|---|
| of Wills made by Hindus, etc.— | | The provisions of this Part |
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| 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,<br>Sikh or Jaina on or after the first day of September, 1870,<br>within the territories which at the said date were subject to<br>the LieutenantGovernor of Bengal or within the local limits of<br>the ordinary original civil jurisdiction of the High Courts of<br>Judicature at Madras and Bombay; and | |
|---|
| (b) to all such Wills and codicils made outside those territories<br>and limits so far as relates to immoveable property situate<br>within those territories or limits; [and | |
| (c) to all Wills and codicils made by any Hindu, Buddhist,<br>Sikh or Jaina on or after the first day of January, 1927, to<br>which those provisions are not applied by clauses (a) and (b):] | |
| Provided that marriage shall not revoke any such Will or<br>codicil.” | |
| | |
| 30. Schedule III of the Act contains a list of provisions which are<br>applicable, subject to certain restrictions and modifications, to all<br>the Wills described in clauses (a), (b) and (c) of Section 57. | | |
| 31. The jurisdiction conferred upon the District Judge in Chapter<br>IV of Part IX, is also exercisable by the High Court, by virtue of the<br>concurrent jurisdiction conferred under Section 300. Section 300<br>reads as follows: | | |
| “ | 300. Concurrent jurisdiction of High Court.— |
|---|
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| (1) The High Court shall have concurrent jurisdiction with the<br>District Judge in the exercise of all the powers hereby conferred<br>upon the District Judge. | |
|---|
| (2) Except in cases to which section 57 applies, no High Court,<br>in exercise of the concurrent jurisdiction hereby conferred over<br>any local area beyond the limits of the towns of Calcutta,<br>Madras and Bombay shall, where the deceased is a Hindu,<br>Muhammadan, Buddhist, Sikh or Jaina or an exempted<br>person, receive applications for probate or letters of<br>administration until the State Government has, by a notification<br>in the Official Gazette, authorised it so to do.” | |
| | |
| The bar under subSection (2) of Section 264 is found also in<br>subSection (2) of Section 300. | | |
| 32. Part VIII of the Act which is perhaps the smallest among the<br>several parts of the Act, contains two important provisions in<br>Sections 212 and 213. They read as follows: | | |
| “ | 212. Right to intestate’s property.— |
|---|
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
20
| (i) in the case of Wills made by any Hindu, Buddhist, Sikh<br>or Jaina where such Wills are of the classes specified in<br>clauses (a) and (b) of section 57; and | |
| (ii) in the case of Wills made by any Parsi dying, after the<br>commencement of the Indian Succession (Amendment)<br>Act, 1962 (16 of 1962), where such Wills are made<br>within the local limits of the [ordinary original civil<br>jurisdiction] of the High Courts at Calcutta, Madras and<br>Bombay, and where such Wills are made outside those<br>limits, in so far as they relate to immoveable property<br>situated within those limits.]” | |
| 33. While Section 212 deals with the right to intestate’s property,<br>Section 213 deals with the establishment of the right as executor or<br>legatee under a Will. In simple terms these two Rules can be stated<br>as follows:(i) without first obtaining letters of administration from a<br>Court of competent jurisdiction, no right to any property of a person<br>other than a Hindu, Muhammadan, Buddhist, Sikh, Jaina, Indian<br>Christian or Parsi, who has died intestate, can be established in<br>any court of justice; (ii) no right as executor or legatee under a Will<br>(other than a Will made by a Muhammadan or Indian Christian)<br>can be established in any Court of justice unless probate of the Will | | |
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or letters of administration with the Will annexed, has been granted
by a court of competent jurisdiction.
34. But the second Rule stated above which is found in Section
213, is applicable only: in the case of Wills made by any Hindu,
(i)
Buddhist, Sikh or Jaina, if those Wills are of the 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 Amendment Act
16 of 1962, if such Wills are made within the local limits of the
ordinary original civil jurisdiction of the High Courts at Calcutta,
Madras and Bombay and in case such Wills have been made
outside those limits, in so far as they relate to immovable property
situate within those limits.
35. A cumulative reading of Sections 57, 213 and 264 would
show: that a person claiming to be an executor or legatee under
(i)
a Will cannot rely upon the Will, in any proceeding before a Court of
justice, unless he has obtained probate (if an executor has been
appointed) or letters of administration with the Will annexed, if
such a Will has been executed by certain classes of persons; and
that the jurisdiction to grant probate or letters of administration
(ii)
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vests only in courts located within the towns of Calcutta, Madras or
Bombay and the Courts in any local area notified by the State
Government in the Official Gazette.
36. Therefore, what follows is that: unless the testator belongs
(i)
to any of the classes of persons specified in the Act; and (ii) unless
the Will is made or some of the properties covered by the Will are
located, within the local limits of a notified area, there is no
necessity for an executor or a legatee under a Will to seek probate
or letters of administration. In fact, the decision in Balbir Singh
Wasu (supra) did not take note of the bar under Section 264(2)
when it opined in general terms in Paragraph 5 of the judgment
that “ We do not read Section 213 as prohibiting the executor for
applying for probate as a matter of prudence or convenience
to the
courts in other parts of the country not covered by Section
”.
213
37. By virtue of Section 213(2)(i) read with Clauses (a) and (b) of
Section 57, the mandatory requirement to seek probate or letters of
administration for establishing a right as executor or legatee under
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a Will, is applicable only to Wills made by a Hindu, Buddhist, Sikh
or Jaina within the local limits of the ordinary original civil
and to Wills made outside
jurisdiction of certain High Courts
those territories, to the extent they cover immovable property
situate within those territories. Therefore, there is no prohibition for
a person whose case falls outside the purview of these provisions,
from producing, relying upon and claiming a right under a Will, in
any proceeding instituted by others including the other legal heirs
for partition or other reliefs.
38. In the case on hand, the petitioner Ravinder Nath himself
proceeded (i) first to have mutation effected in the revenue records
and (ii) then to file a suit in O.S.No.72 of 2011 on the file of the
Civil Judge, Senior Division, Nainital, for a decree of permanent
injunction, on the basis of the very same last Will and Testament
dated 06.04.2011 of his father, without seeking letters of
administration. He did not think that Section 213(1) was a bar for
him to establish his right as a legatee under the Will, without
obtaining letters of administration.
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39. After having done so, the petitioner in T.P (C) No.970 of 2016
chose to file Testamentary Case No.01 of 2019 after 8 years of first
shooting a claim under the Will and that too after the vacation of
the stay of further proceedings in the partition suit by order dated
09.10.2018. Therefore, I cannot allow the petitioner in T.P (C) No.
970 of 2016 to make this Court a fait accompli.
40. The partition suit, which is pending on the file of the District
Court, Saket is actually 8 years old, as it was instituted on the file
of the High Court of Delhi in September, 2012 and was transferred
to the District Court in 2016. The written statement in the said suit
was filed by Major Ravinder Nath way back in November, 2012,
when the suit was pending in the High Court of Delhi as C.S
No.2745 of 2012. In Paragraph 8g of the written statement, the
petitioner has pleaded the execution of the disputed Will. The true
copy of the Will is stated to have been annexed as D1/5, to the
written statement. Therefore, obviously Major Ravinder Nath was
convinced that there was no bar for him to establish his right as a
legatee under the will, even without first obtaining letters of
administration. Hence, his subsequent act of filing a testamentary
25
case before the High Court of Uttarakhand, is nothing but a ruse to
take advantage of the general proposition of law that probate
proceedings are proceedings in rem and that they should have
primacy. This argument is available only to a person who is
disabled by virtue of Section 213(1), from relying upon a Will in any
proceeding, without first obtaining probate/letters of
administration. Therefore, the legal contention raised on behalf of
the petitioner in T.P (C) No.970 of 2016 that the partition suit
should follow the testamentary case, is liable to be rejected in the
facts and circumstances of this case.
41. In fact, the petitioner in T.P (C) No.970 of 2016 is not even
helping himself by resorting to this. After having claimed way back
in November, 2012 that there was a Will, he chose to file the
testamentary proceedings only in January 2019, overlooking Article
137 of the Limitation Act, 1963 and certain decisions of this Court.
I am not going into those details, as it may prejudice his case.
42. Relying upon the decision of this Court in Smt. Rukmani
7
Devi and Others vs. Narendra Lal Gupta , it was contended by
Mr. Manish Kumar, learned counsel for the petitioner, that by
7 (1985) 1 SCC 144
26
virtue of Proviso (b) of Section 273 of the Indian Succession Act,
1925, any letters of administration granted by the District Court,
Saket cannot have effect in other States unless the value of the
property affected by the grant and located beyond the limits of the
State, does not exceed Rs.10,000/.
43. But this argument is one of convenience. Nothing prevented the
petitioner from filing the testamentary proceedings in the High
Court of Delhi by taking advantage of Proviso (a) of Section 273 and
seeking the withdrawal of the suit for partition from the District
Court, Saket to the High Court to be tried together. Section 273
reads as follows:
| “ | 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
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| (b) by a District Judge, where the deceased at the time of his<br>death had a fixed place of abode situate within the jurisdiction<br>of such Judge, and such Judge certifies that the value of the<br>property and estate affected beyond the limits of the State does<br>not exceed ten thousand rupees, | |
|---|
| shall, unless otherwise directed by the grant, have like effect<br>throughout the other States | |
| Therefore, the petitioner, taking advantage of the pendency of the<br>partition suit from 2012 to 2016, could have filed the testamentary<br>proceeding in the High Court of Delhi itself and relied upon Proviso<br>(a) of section 273, instead of now relying upon Proviso (b) of Section<br>273. | | |
| 44. Having dealt with the legal contention, let me now move on to<br>the factual basis on which transfer of the partition suit is sought. It<br>is claimed by the learned senior counsel for the petitioner that the<br>petitioner is a senior citizen suffering from a host of health issues.<br>The attesters are also not residents of Delhi. Therefore, he argued<br>that at least the convenience of the parties may have to be taken<br>into account. | | |
| 45. But in these days of virtual hearings, the location of the<br>parties is hardly a matter of concern. In fact, an application in | | |
28
I.A.No.130939 of 2020 has been moved by the petitioner, seeking a
direction to examine one of the attesters either through video
conferencing or through court appointed commissioner, as he is 74
years of age, having a lot of medical issues and has also tested
positive for COVID19.
46. The very fact that even according to the petitioner, the attester
can be examined through video conference or court appointed
commissioner would show that the place where the proceedings are
pending, is immaterial.
47. The fact that 3 out of the surviving 5 children are citizens of
other countries residing out of India and that therefore they cannot
have any objection to the proceedings being tried in Uttarakhand, is
not acceptable. It would have been open to the petitioner to raise
such a contention, had he chosen to make the first strike by filing
the testamentary proceedings in 2011 or 2012. He did not do so.
Therefore, even on facts, I find no ground to order the transfer of
the partition suit to the District Court, Nainital and hence, T.P (C)
No. 970 of 2016 is liable to be dismissed.
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| 48. In so far as the second transfer petition is concerned, the relief<br>sought therein is to transfer the testamentary case pending in the<br>High Court of Uttarakhand to the District Court, Saket, Delhi. Since<br>the Will set up by the petitioner covers properties located both in<br>Nainital and Delhi, both these courts have concurrent jurisdiction.<br>But in view of Proviso (b) to Section 273, letters of administration<br>granted by a District Court cannot have validity in respect of a<br>property located outside the State, if its value exceeds Rs. 10,000/.<br>However, this problem can be resolved by ordering the transfer of<br>the testamentary case to the High Court of Delhi and ordering the<br>transfer of the partition suit from the District Court, Saket back to<br>the High Court of Delhi. | |
|---|
| 49. Therefore, the Transfer Petitions are disposed of to the<br>following effect: | |
| (i) T.P (C) No.970 of 2016 is dismissed; |
| (ii) T.P (C) No.2779 of 2019 is allowed and the Testamentary<br>Case No.01 of 2019 pending on the file of the High Court of<br>Uttarakhand is ordered to be transferred to the file of the High<br>Court of Delhi; |
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(iii) The partition suit in C.S No. 126 of 2016 pending on the
file of the Additional District Court, Saket at Delhi shall stand
transferred to the High Court of Delhi and clubbed along with
the testamentary proceeding and taken up together for
disposal. Considering that the partition suit is about 8 years
old, the High Court of Delhi may consider giving priority of
listing. The parties are at liberty to move applications for
examination of the witnesses including the attesters of the
Will, either through Video Conference or through Court
appointed Commissioners and applications for such reliefs
may be considered by the High Court favourably.
The parties shall bear their respective costs.
(iv)
.……..
.......................... J.
(V. RAMASUBRAMANIAN)
New Delhi;
February 12, 2021.
