Heard Shri Ramendra Asthana for the revisionists and Shri Kshitij Shailendra for the opposite party.
The revision is directed against the order dated 22.05.2017 passed by the Ist ADJ, Kanpur Nagar in Original Suit No. 8 of 2016, whereby issue no. 3 in the suit has been decided in favour of the plaintiff-opposite party.
The plaintiff-opposite party filed the suit aforesaid for grant of probate of an unregistered will dated 02.10.2008 executed by Hari Mohan Dhawan, wherein, the plaintiff had been named, executor.
The contention of counsel for the revisionist is that on a conjoint reading of Section 57 and 2/3 of the Indian Succession Act, the District Judge has no jurisdiction to entertain a probate petition nor he has any jurisdiction to grant probate. Therefore, the decision on issue no. 3 framed, namely whether a probate can be granted to the will in question, has been wrongly decided.
It is submitted that in view of Section 57 and 213 of the Succession Act, a probate is required only as regards a will made by a Hindu, Buddhist, Sikh or Jain within the territories subject to the Lieutenant Governor of Bengal or within the local limits of the ordinary civil jurisdiction of the High Court of Judicature at Madras and Bombay or where the property, subject matter of the will, is situated within these territories or limits on 1 September 1870.
In the case at hand, admittedly, the parties are Hindus and the property, which is subject matter of the will does not lie within the territory, which on 1st of September, 1870, was subject to the will Governor of Bengal or was situated within the limits of High Court of Judicature at Madras and Bombay on 01.09.1870.
He has further relied upon Section 213 of the Indian Succession Act, which reads as follows:-
"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[(2) This section shall not apply in the case of Wills made by Muhammadans 3[or Indian Christians], or 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 4[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 immoveable property situated within those limits.]"
In support of his contention, counsel for the revisionist has placed reliance upon Clarence P AIS and others Vs. Union of India, 2001 (43) ALR 249, Smt. Bimla Gaindher Vs. Smt. Usha Gaindher and another, 2004 (2) AWC 1855, especially paragraph 13 thereof and the decision of the Apex Court in State of West Bengal and others Vs. Associated Contractors, 2015 (1) Supreme Court Cases 32.
Counsel appearing for the opposite party has supported the impugned order. He has placed reliance upon the decision of this Court in Triloki Nath Vs. Kanhiya Lal and others, AIR 1978 Allahabad 297 and Ashish Kumar Pandey Vs. Bajrang Bali Pandey and others, 2017 (5) ADJ 45.
I have considered the submissions made by counsel for the parties and perused the record as also the judgment cited on their behalf.
It is no doubt true that the judgments cited on behalf of the revisionist hold that in view of Section 213 of the Act, a probate is not required regarding will falling under clause c of Section 57 of the Indian Succession Act. However, the issue raised in this revision has been considered by the Division Bench in Ashish Kumar Pandey (supra) cited by counsel for the respondent. In paragraph 18 of this judgment, the Division Bench of this Court has observed as follows:-
"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."
It is, therefore, clear that obtaining a probate is mandatory only where the property, subject matter of the will, lay within the territorial jurisdiction of the Lieutenant Governor of West Bengal or within the territorial jurisdiction of the High Court of Madras and Bombay on 1st of September, 1870 or the will was executed within these territories. But there is no embargo in the Indian Succession Act that no probate can be granted if the property does not lie within the territories, above.
In cases falling within clause c of Section 57 of the Act obtaining a probate is optional.
This option has been exercised by the opposite party and the Court below has rightly held that it is competent to grant the probate.
In view of the foregoing discussion, this revision is found to be without merit and is accordingly dismissed.
Order Date :- 29.05.2018 Mayank