Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 5823 OF 2019
(ARISING OUT OF SLP (CIVIL) NO. 19096 OF 2017)
KANTA YADAV
.....APPELLANT(S)
VERSUS
OM PRAKASH YADAV & ORS. .....RESPONDENT(S)
J U D G M E N T
HEMANT GUPTA, J.
Leave granted.
2) Challenge in the present appeal is to an order passed by the
Division Bench of Delhi High Court on February 13, 2017 whereby
an intra court appeal against the order dated March 14, 2016
passed by the learned Single Bench was accepted. The learned
Single Bench allowed an application under Order 7 Rule 11 of the
Code of Civil Procedure, 1908 holding that the suit for declaration
and permanent injunction is not maintainable in view of Section
1
213 of the Indian Succession Act, 1925 .
1
for short, ‘Act’
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3) The brief facts leading to the present appeal are that one Zorawar
Singh was owner of certain immoveable property in New Delhi. He
executed a Will dated June 16, 1985 and codicil dated October 21,
1995 bequeathing a self-acquired property in favour of both the
parties. Zorawar Singh died on January 4, 1986. Two suits came
to be filed; one by the present respondents bearing CS (OS) No.
3310 of 2012 claiming declaration and permanent injunction in
respect of the Will and codicil executed by Zorawar Singh and also
will dated June 18, 2009 executed by Smt. Ram Pyari, wife of
Zorawar Singh; and the other suit filed by the present appellant
bearing CS (OS) No. 430 of 2012 claiming natural succession.
The Division Bench of the High Court held that the bar under
4)
Section 213 of the Act is not applicable and, therefore, set aside
the order of rejection of plaint and directed that both the suits be
clubbed and common evidence be led together.
5) The short question to be examined is whether it is necessary to
seek probate or letter of administration in respect of a Will in
terms of Section 213 of the Act in the National Capital Region of
Delhi.
6) It is undisputed that the present National Capital Region Delhi was
part of erstwhile State of Punjab prior to November 1, 1966. The
argument raised by the respondents is that Section 57 of the Act is
applicable where the properties and parties are situated in the
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territories of Bengal, Madras or Bombay, therefore, it is not
necessary to seek probate or letter of administration in respect of
properties or the persons when they are not located in the States
of Bengal, Madras or Bombay. To examine the said question,
certain statutory provisions are relevant to quote hereunder:
“ Section 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 Wills
made by Muhammadans, and shall only apply-
(i) 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; and
(ii) in the case of Wills made by any Parsi dying, after
the commencement of the Indian Succession
(Amendment) Act, 1962 (16 of 1962.) where such Wills
are made within the local limits of the [ordinary original
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 situated within those limits.]
Section 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
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Madras and Bombay; and
(b) to all such Wills and codicils made outside those
territories and limits so far as relates to immoveable
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.”
7) The said provisions have been examined and come up for
consideration time and again before the Punjab and Haryana High
Court and Delhi High Court. In Ram Chand v. Sardara Singh &
2
Ors. , the Punjab High Court held as under:
| “4. … | The clear effect of these provisions appears to | |
|---|---|---|
| be that the provisions of section 213(1) requiring | ||
| probate do not apply to wills made outside Bengal and | ||
| the local original jurisdictional limits of the High Courts | ||
| at Madras and Bombay except where such wills relate to | ||
| immovable property situated within those territories. |
| 5. There remains to be considered the decision of | |
|---|---|
| Shamsher Bahadur, J., in the case mentioned above, | |
| which is apparently based on the decision of a Full Bench | |
| in Ganshamdoss Narayandoss v. Gulab Bi Bai, [ I.L.R. 50 | |
| Mad. 927.] . I find, however, on perusing this judgment | |
| that what has been held is that a defendant resisting a | |
| claim made by the plaintiff as heir-at-law cannot rely in | |
| defence on a will executed in his favour at Madras in | |
| respect of property situate in Madras, when the will is | |
| not probated and no letters of administration with the | |
| will annexed have been granted. This is clearly in | |
| accordance with the provisions of sections 213 and 57(a) | |
| of the Act, and the only point on which the matter was | |
| referred to the Full Bench was whether a will could be | |
| set up in defence in a suit without probate. |
2
AIR 1962 P&H 382
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| 6. As I have said the clear reading of the | |
|---|---|
| provisions of the Act leave no doubt whatever that no | |
| probate is necessary in order to set up a claim regarding | |
| property either movable or immovable on the basis of a | |
| will executed in the Punjab and not relating to property | |
| situated in the territories mentioned in section 57(a). I | |
| accordingly accept the revision petition and set aside the | |
| order of the lower Court requiring the petitioner to obtain | |
| probate. The matter may now be disposed of by the | |
| lower Court, where the parties have been directed to | |
| appear on the 4th of December, 1961. The parties will | |
| bear their own costs in this Court.” |
Haryana High Court in M/s. Behari Lal Ram Charan v. Karam
3
Chand Sahni & Ors. :
| “3. | From a bare perusal of these two sections it is |
|---|---|
| apparent that the objection of defendant No. 1 on the | |
| preliminary issue raised by him in the trial Court was | |
| without any substance. Clause (a) of section 57 read | |
| with sub-section (2) of section 213, it would appear, | |
| applies to those cases where the property and parties | |
| are situate in the territories of Bengal, Madras and | |
| Bombay, while clause (b) applies to those cases where | |
| the parties are not residing in those territories but the | |
| property involved is situate within those territories. | |
| Clause (c) of section 57, however, is not relevant for the | |
| present purposes. Therefore, where both the person and | |
| property of any Hindu, Budhist, Sikh or Jaina, are | |
| outside the territories mentioned above, the rigour of | |
| section 213, sub-section (1), is not attracted. Reference | |
| was made by the learned referring Judge to a decision of | |
| the Supreme Court in Mrs. Hem Nolini v. Mrs. Isolve | |
| Sarojbashini Bose, AIR 1962 Supreme Court 1471, but | |
| the parties in that case were Christians (to whom it is | |
| agreed section 57 does not apply) and their Lordships | |
| only considered the implications of sub-section (1) of | |
| section 213 of the Act and not of sub-section (2) of that | |
| section read with section 57 clauses (a) and (b). The | |
| learned Single Judge probably felt the difficulty because |
3
1968 AIR (Punjab) 108
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| of the view taken by Shamsher Bahadur, J. In Kesar | |
|---|---|
| Singh and others v. Tej Kaur, 1961 P.L.R. 473, but that | |
| judgment was considered by Falshaw, J. (as he then | |
| was) in Ram Chand v. Sardara Singh, 1962 P.L.R. 265, | |
| who differed from the view taken by Shamsher Bahadur, | |
| J., in the above-mentioned case, holding that no probate | |
| was necessary in order to set up a claim regarding | |
| property either movable or immovable on the basis of a | |
| will executed in the Punjab and a succession certificate | |
| could be granted on the ground of a will without | |
| obtaining probate. While referring to the decision of | |
| Shamsher Bahadur, J., in Kesar Singh's case, Falshaw, J., | |
| observed that the view taken by Shamsher Bahadur, J., | |
| was apparently based on the decision of a Full Bench | |
| in Ganshomdass v. Gulab Bi Rai, ILR 50 Madras 927 | |
| where it was held that a defendant resisting a claim | |
| made by the plaintiff as heir-at-law could not rely in | |
| defence on a will executed in his favour at Madras in | |
| respect of property situate in Madras, when the will was | |
| not probated and no letters of administration with the | |
| will annexed had been granted. The Madras case was | |
| clearly in accordance with section 213 read with section | |
| 57 of the Act. We agree with the view taken by Falshaw, | |
| J., in Ram Chand's case. A similar view was expressed by | |
| Jai Lal, J., in Sohan Singh v. Bhag Singh, AIR 1934 | |
| Lahore 599, and by me in C.R. 340-D/1965 (Radhe | |
| Lal v. Ladli Parshad) decided on 24th August, 1965. Even | |
| a cursory glance at sections 213 and 57 of the Act leaves | |
| no room for doubt that the view taken by Shamsher | |
| Bahadur, J., in the case mentioned above was erroneous. | |
| It appears that the case of Sohan Singh v. Bhag Singh | |
| (supra), referred to above, was not brought to his | |
| notice.” |
Single Bench of Delhi High Court held as under:
| “11. | On interpretation of Section 213 read with |
|---|---|
| Section 57 (a) and (b), the Courts have opined that | |
| where the will is made by Hindu, Buddhist, Sikh and | |
| Jaina and were subject to the Lt. Governor of Bengal or | |
| within the local limits of ordinary, original civil | |
| jurisdiction of High Courts of Judicature at Madras and |
4
AIR 2002 Delhi 6
Page 6 of 9
| Bombay or even made outside but relating to | |
|---|---|
| immovable property within the aforesaid territories that | |
| embargo contained in Section 213 shall apply. From | |
| this it stands concluded that if will is made by Hindu, | |
| Buddhist, Sikh or Jaina outside Bengal, Madras or | |
| Bombay then embargo contained in Section 213 shall | |
| not apply. This is what the various judgments cited by | |
| the learned counsel for the defendants decide. | |
| Therefore, there is no problem in arriving at the | |
| conclusion that if the will is made in Delhi relating to | |
| immovable property in Delhi by Hindu, Buddhist, Sikh | |
| or Jaina, no probate is required.” |
5
v. The State & Anr. referred to the Division Bench judgment in
Behari Lal’s case and certain other Single Bench judgments of
Delhi High Court to conclude as under:
| “33. | The result of the aforesaid is that complete line | |
|---|---|---|
| of judgment referred by the learned counsel for the | ||
| petitioner in support of the submission that probate is | ||
| mandatory would have no application to the facts of the | ||
| present case and thus findings arrived at in the | ||
| collateral proceedings in the suit to which the | ||
| petitioners were parties would bind the petitioners. | ” |
11) Learned counsel for the respondents also referred to the Supreme
6
Court judgment in Clarence Pais & Ors. v. Union of India
wherein, validity of Section 213 of the Act was challenged as
unconstitutional and discriminatory against the Christians. This
Court held as under:
| “6. … | 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 Sections 57(a) and (b), sub-section (2) of |
5
AIR 2006 Delhi 48
6
(2001) 4 SCC 325
Page 7 of 9
| 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. | |
| 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.” |
and codicils made by any Hindu, Buddhist, Sikh or Jain, who were
subject to the jurisdiction of the Lieutenant-Governor of Bengal or
within the local limits of the ordinary original civil jurisdiction of the
High Courts of Madras or Bombay - {clause (a) of Section 57 of the
Act}. Secondly, it is applicable to all Wills and codicils made
outside those territories and limits so far as relates to immoveable
property within the territories aforementioned - Clause (b) of
Section 57. The clause (c) of Section 57 of the Act relates to the
Wills and codicils made by any Hindu, Buddhist, Sikh or Jain on or
after the first day of January, 1927, to which provisions are not
applied by clauses (a) and (b). However, sub-section (2) of
Section 213 of the Act applies only to Wills made by Hindu,
Buddhist, Sikh or Jain where such Wills are of the classes specified
in clauses (a) or (b) of Section 57. Thus, clause (c) is not
applicable in view of Section 213(2) of the Act.
13) In view thereof, the Wills and codicils in respect of the persons who
are subject to the Lieutenant-Governor of Bengal or who are within
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the local limits of ordinary original civil jurisdiction of High Court of
Madras or Bombay and in respect of the immoveable properties
situated in the above three areas. Such is the view taken in the
number of judgments referred to above in the States of Punjab and
Haryana as well as in Delhi as also by this Court in Clarence Pais .
14) In view of the above, we do not find any error in the judgment
passed by the Division Bench of the Delhi High Court.
Consequently, the appeal is dismissed.
.............................................J.
(L. NAGESWARA RAO)
.............................................J.
(HEMANT GUPTA)
NEW DELHI;
JULY 24, 2019.
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