1. By this appeal under section 100 of the Code of Civil Procedure, 1908 (hereinafter referred to as “the Code”), the appellants (original defendants) have challenged the judgement and decree dated 16.9.2011 passed by the learned Principal District Judge, Surendranagar in Civil Appeal No.117 of 2005 whereby he has partly modified the order dated 11.10.2000 passed by the learned Civil Judge (S.D.), Surendranagar in Special Civil Suit No.97 of 1991.
2. The plaintiffs No.1 and 2 are the sons of defendant No.9. The deceased Triveniben Keshavji was the grandmother of the plaintiffs and mother of the defendants No.1 to 3 and 5 to 9. The defendant No.4 is the legal heir of deceased Bhanjibhai alias Chimanlal Keshavji Kareliya. It is the case of the plaintiffs that deceased Triveniben executed a will in favour of the plaintiffs which was registered on 28.1.1987 vide No.1704. According to the plaintiffs, the will was executed by Triveniben in sound and good health condition and was duly attested by witnesses. The will was drafted by counsel Mr. N. J. Shah and was duly signed by all the parties. The attesting witnesses are Chandrasinh Nathubha Jhala, Kanjibhai Kunvarjibhai and Dinkarrai Mulshanker Bhatt. The will was also signed by deceased Triveniben. It was the case of the plaintiffs that by virtue of the said will, they had become the owners of the properties which have been described in paragraph 4 of the plaint as follows :
“On north, there is public road from Jawahar chowk to Derasar chowk and adjacent to property of defendant No.1 and 2, there is one shop facing towards northern side and behind the said shop, there is a room, bath- room, Deli and land of the deli and the upper part of the terrace of the shop. Furthermore, in Surendranagar, just opposite to Vana Utara inside the Deli, there is one room, Oshari, big kitchen and on northern side, one room, well and the latrine. The said premises are on the northern side of the house of Chandulal Sukhlal Mehta.”
3. It was the further case of the plaintiffs that apart from the above referred properties, under the will, deceased Triveniben had also given the gold ornaments, which were of her Streedhan, to the plaintiffs. According to the plaintiffs, the defendant No.1 was the custodian of the said ornaments of deceased Triveniben till her death, which also remained in the custody of defendant No.1. It was the case of the plaintiffs that in terms of the will executed by deceased Triveniben, the plaintiffs had become the owners of the said ornaments and were entitled to receive them. The plaintiffs, accordingly, instituted the above referred suit praying that the defendants No.1 to 3 be ordered to give to the plaintiffs the gold ornaments as per list dated 19.11.1988 or the price of such ornaments along with interest @ 11% per annum. It was further prayed that the property in possession of the defendant No.2 be vacated and the same be handed over to the plaintiff No.1 and till then, mesne profit at the rate of Rs.100/- per month be ordered to be given to the plaintiff No.1. It was further prayed that the shop situated opposite Suthar Gali which was in possession of the tenant, be given to the plaintiff No.2.
4. In response to the summons issued by the court, the defendants filed their written statements, contending that no such will as alleged by the plaintiffs has ever been executed by deceased Triveniben. Assuming that there is such a will, it is not legal and valid inasmuch as, Triveniben was not in a sound and proper state of mind to execute a will as she was not keeping well at the relevant time. It was also contended that Triveniben had no authority to transfer the property by way of a will, particularly the immovable property referred to in the will as the same was ancestral property and therefore, all the legal heirs had rights and interest in the said property. The defendants No.1, 2 and 3 also submitted an application exhibit- 180 stating that as the plaintiffs have not obtained any probate or letter of administration, they have no right to file any suit and prayed that the suit be dismissed.
5. On the pleadings of the respective parties, the trial court framed the following Issues :
“[1] Whether the plaintiff proves that the late Triveniben Keshavji had duly executed her will on 28/1/87 in respect of the property involved in the suit?
[2] Whether the defendants prove that at the time of the alleged execution of the will the late Triveniben was not a sound mental due to old age and illness etc., therefore, she was not capable to make a legal will?
[3] Whether the defendants proves that the plaintiff had in collusion with the attesting witnesses or any other person got the signature of the deceased Triveniben on the document without the deceased knowing that the document which she was signing was a will?
[4] Whether the plaintiff is entitled to recover the property involved in the suit on the basis of the will?
[5] What order and decree?
[6] Whether the suit bad for non-joinder of necessary parties?
[7] Whether the suit is maintainable without probate of the will?
[8] Whether the plaintiffs prove that the late Triveniben K. had right to execute the will dated 28/1/87?
[9] Whether the defendants prove that immovable suit property is ancestral property?
[10] Whether the plaintiffs prove that the late Triveniben K. had any gold ornaments of Streedhan?
[11] Whether the plaintiffs prove that any gold ornaments were with the custody of defendant No.1?
[12] Whether the defendants prove that the father of the plaintiffs had given to all the defendants and himself 9.75 tola gold ornament from the ownership of the joint Hindu Family property?
[13] Whether the suit is time barred?”
6. Upon appreciation of the evidence on record, the trial court answered Issues No.1, 4, 7, 8, 10 and 11 in the affirmative;
Issues No.2, 3, 6, 9 and 13 in the negative; Issue No.5 was decided as per final order and Issue No.12 was decided accordingly.
7. The trial court, accordingly, decreed the suit and ordered that the plaintiffs are entitled to recover gold ornaments of 9-III Tolas from the defendants No.1, 2 and 3 or to receive price of the said gold ornaments from each defendants as prevailing on the date of filing the suit, along with interest thereon at the rate of 18% per annum from the date of filing of the suit till realization, and further ordered that the same be recovered from the movable or immovable properties of the defendants No.1, 2 and 3. The trial court also held that the plaintiffs are the owners of the suit properties as per paragraph 11(b) & (c) of the plaint, and that they are entitled to receive vacant and peaceful possession of the same from defendant No.2. It was further ordered that the plaintiffs are entitled to receive mesne profit at the rate of Rs.400/- per month from defendant No.2 till possession of the property is handed over by defendant No.2 to the plaintiffs. So far as the suit shop is concerned, which was in possession of the tenant, the trial court held that the plaintiffs being the owner of the said properties should get vacant possession from the tenant under due process of law. Being aggrieved, the appellants – original defendants No.1, 2 and 3 preferred an appeal before the learned Principal District Judge, Surendranagar being Civil Appeal No.117 of 2005. The lower appellate court framed the following points for determination:
“[1] Whether immovable suit property is ancestral property?
[2] Whether Triveniben has competency to bequeath immovable property by executing a will?
[3] Whether the will executed by Triveniben is legal, valid and enforceable?
[4] Whether Special Civil Suit No.97/91 is maintainable when admittedly no probate or letters of administration of will is obtained?
[5] What is the effect of Section 213 of the Indian Succession Act?
[6] Whether the plaintiffs-respondents are entitled to relief or not in respect of gold ornaments?”
8. After re-appreciating the evidence on record, the lower appellate court answered Point No.1 in the negative; Points No.2, 3, 4 and 5 came to be answered in the affirmative. As regards Point No.6, the lower appellate authority held that the plaintiffs are entitled to the relief in respect of gold ornaments. The lower appellate court, accordingly, passed the following order:
“(47).The order under appeal is partly modified.
Defendant No.2 is hereby directed to hand over vacant and peaceful possession of the property situated at Vana Na Uttara, description of which is given in para-4 of the plaint. Defendant No.2 shall hand over vacant possession of the suit property on or before but not later than 31.12.2011. Defendant No.2 (his heirs) shall require to pay Rs.400/- (Rupees Four Hundred only) for use and occupation from 01.01.2010 till they hand over possession.
The plaintiff being owner, may recover possession of the tenanted shop situated at Suthar Gali, description of which is given in para-4 of the plaint, in accordance with law.
Defendant Nos.1, 2 and 3 are hereby directed to hand over to the plaintiff gold ornaments, as per the list prepared on 19.11.88, failing which each of the defendants-appellants, shall pay to the plaintiff price equivalent to 9.75 tolas gold, the price as prevailing on the date of institution of the suit. In case of failure to return gold ornaments, equivalent price is required to pay at the interest of 7.5% from the date of institution of the suit till payment is made.
In order to ascertain the price of gold prevailing on the date of institution of suit, Commissioner is to be appointed. Name of Commissioner would be declared after hearing learned counsels for parties in the suit. Parties should bear costs equally for Commissioner fees and expenses. Commissioner is required to submit his report within one month from the date of his appointment. Commissioner shall submit report as to price of gold prevailing on the date of institution of suit.
In case the plaintiff is required to recover the amount equivalent to gold from the appellant, the plaintiff would not be entitled to interest from the date of institution of probate or letters of administration application till final disposal of that application. Accrual of interest till pendency of probate or letters of administration application, will be suspended.
For the reasons stated in the judgement, effective title over gold ornaments would vest in the plaintiff only upon obtaining of probate/letters of administration of the will from the competent Court.
Preliminary decree to be drawn partly to the above extent. For other reliefs, decree to be drawn accordingly.”
9. Being aggrieved, the appellants (original defendants No.1, 2 and 3) have preferred the present second appeal by proposing the following six questions, stated to be substantial questions of law :
“[1] Whether both the courts below rightly appreciated the provisions of Hindu Succession Act?
[2] Whether Hindu Widow can bequeath the property which was fallen to the share of her late husband, who died intestate to only one grandson to the exclusion of her other living sons?
[3] Whether gold ornaments simply because they were on the widow could be regarded as her “Streedhan” without there being any evidence and pleadings that the said gold ornaments have not been given to her during her marriage from her parents or from her father-in-law or husband at the time of marriage?
[4] What is the real meaning of “Streedhan” property?
[5] Whether any property which is with the Hindu widow could be regarded as “Streedhan” property?
[6] Whether admission or acquiescence can be regarded as estoppel against law?”
The learned counsel for the appellants has further submitted that the ground (g) of the grounds of appeal, which reads as follows, be considered as a question of law. The request is accepted.
“[g] : That both the courts below erred in not appreciating that suit is not maintainable because the same is for possession of movable and immovable property and is for execution of will of which no probate is obtained by respondent.”
10. Mr. S. P. Hasurkar, learned counsel for the appellants assailed the impugned judgement and decree submitting that the lower appellate court has erred in not appreciating the oral as well as documentary evidence on record in proper perspective. It was submitted that the courts below have erred in considering that Triveniben had absolute right to make a will of the movable and immovable property and had further erred in holding that the gold referred to in the will was the streedhan property of Triveniben. It was urged that the courts below ought to have held that the immovable property which was retained by Keshavji was not transferred to Triveniben during his life time and after his death, as he died intestate, the defendants became joint owners of the property according to the provisions of the Hindu Succession Act and ought to have held that Triveniben had no absolute right to make a will of the said immovable property in favour of the plaintiffs. It was contended that insofar as the immovable property is concerned, the plaintiff’s father and the defendants have an equal share because Keshavji Anandji had died intestate and had not made any conveyance to transfer the said property to Triveniben during his life time. Even in the record of rights, the properties are mutated in the names of all the sons of late Keshavji Anandji along with Triveniben and that the plaintiff and his father have not objected to the said mutation. It was submitted that at the relevant time when the will came to be executed, Triveniben was not keeping good health, and as such, the will cannot be said to have been executed by free will and conscious mind. Inviting attention to the findings recorded by the trial court, it was pointed out that the defendant No.9, father of the plaintiffs had given notice dated 3.6.1984 (exhibit-232) to the defendant No.1 and Triveniben alleging that the property is ancestral property and that the defendant No.9 had claimed share as one of the co-sharers. It was further submitted that Triveniben had executed as many as four wills and that it was only in the last will that there is a reference to ornaments. It was, accordingly, urged that the gold ornaments are not Streedhan property of Triveniben, but are part of the ancestral properties.
11. The learned counsel, however, has stressed mainly upon the last ground, namely, that the suit itself was not maintainable as the same was for possession of movable and immovable property and was for execution of a will of which no probate had been obtained by the respondents. It was argued that in view of the provisions of section 213 of the Indian Succession Act, 1925 (hereinafter referred to as “the Act”), 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. It was, accordingly, submitted that in the absence of a probate having been obtained by the plaintiffs, they could not have established their rights before the civil court and as such, the suit itself was barred. Reliance was placed upon the decision of the Supreme Court in the case of Mrs. Hem Nolini Judah (since deceased) and after her legal representative Mrs. Marlean Wilkinson v. Mrs. Isolyne Sarojbashini Bose and others, AIR 1962 SC 1471, for the proposition that section 213(1) clearly creates a bar to the establishment of any right under will by an executor or a legatee unless probate or letters of administration of the will have been obtained. The court held that it is immaterial whether the right under the will is claimed as a plaintiff or as a defendant; in either case section 213 will be a bar to any right being claimed by a person under a will whether as a plaintiff or as a defendant unless probate or letters of administration of the will have been obtained. It was, accordingly, urged that in the absence of probate or letters of administration of the will having been obtained, civil court could not have granted any relief to the plaintiffs. It was further submitted that the trial court in the impugned judgement has decided on the genuineness of the will, whereas a civil court cannot decide on the question of execution and genuineness of the will as the same falls within the domain of the probate court. It was submitted that the Succession Act is a complete Code and the jurisdiction of the civil courts to the extent of deciding the genuineness of a will and execution thereof is impliedly barred. Reliance was placed upon the decision of the Supreme Court in the case of Chiranjilal Shrilal Goenka (deceased) Through LRs v. Jasjit Singh and others, (1993) 2 SCC 507, wherein it has been held that the Succession Act is a self-contained code insofar 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. The probate proceedings shall be conducted by the probate court in the manner prescribed in the Act and in no other way. 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. The probate court does no more than establish the factum of the will and the legal character of the executor. It does not decide any question of title or of the existence of the property itself. Reliance was also placed upon the decision of the Madhya Pradesh High Court in the case of Ram Shankar v. Balakdas, AIR 1992 MP 224, for the proposition that in a civil court in a suit instituted by any party, claiming right, title and interest in any property on the basis of a will, no issue can be struck to decide if that will was the “last will” and was a valid will and the other will which it purported to revoke had been duly and validly revoked by the will relied on by the plaintiff. The jurisdiction of the Civil Court, as per section 9 CPC, is impliedly barred not only to decide such an issue, but to take cognizance of such a suit in which the plaintiff himself raises such an issue. Reliance was also placed upon the decision of the Supreme Court in the case of Balbir Singh Wasu v. Lakhbir Singh and others, (2005) 12 SCC 503, wherein the court had, while dealing with the contention that section 213 of the Succession Act which requires an executor to obtain probate before establishing his claim under the will was not applicable outside the Presidency Towns of Calcutta, Madras and Bombay, observed that assuming the said contention to be correct, section 213 does not prohibit the executor from applying for probate as a matter or prudence or convenience to the courts in other parts of the country not covered by section 213. It was submitted that in the light of the aforesaid decisions, it was incumbent upon the plaintiffs to first obtain probate or letters of administration in respect of the will failing which, the civil court could not have granted any relief on the basis of the will to the plaintiff. It was, accordingly, urged that the appeal does give rise to substantial questions of law, as proposed or as may be otherwise deemed fit by this Court and as such deserves to be admitted.
12. Opposing the appeal, Mr. D. D. Vyas, Senior Advocate, learned counsel for the respondents No.1 and 2 (original plaintiffs) submitted that the courts below have, upon appreciation of the evidence on record, recorded concurrent findings of fact based upon which the suit has been decreed. It was submitted that unless any perversity is pointed out in the findings recorded by the courts below, there is no warrant for any intervention by this court. It was submitted that the judgement and decree passed by the lower appellate court being based upon concurrent findings of fact recorded after appreciating the evidence on record, does not give rise to any question of law. The appeal, therefore, deserves to be dismissed.
13. Dealing with the submission that in view of the provisions of section 213 of the Succession Act, the plaintiffs could not have instituted the suit without obtaining probate or letters of administration, the attention of the court was drawn to the provisions of section 213 of the Act and more particularly, to sub-section (2) thereof, to point out that the said provision specifically lays down that the said section shall apply only to the categories mentioned thereunder. It was contended that the present case pertains to Surendranagar, which is not within the local limits of the ordinary original civil jurisdiction of the High Courts at Calcutta, Madras and Bombay, and as such the provisions of section 213 would not be applicable in the facts of the present case. Reliance was placed upon the decision of this court in the case of Minaxiben Shashikantbhai Patel v. District Collector, Gandhinagar, 2007 (1) GLR 277, wherein the court had placed reliance upon the decision of the Supreme Court in the case of Clarence Pais and others v. Union of India, AIR 2001 SC 1151, wherein it has been held that 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 section 57(a) and (b), sub-section (2) of 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. Attention was invited to paragraph 9 of the above-referred decision of this court wherein it has been observed that as the property was situated at Gandhinagar, which was outside the territories of the original civil jurisdiction of the High Court of Bombay and the property is even otherwise situated in Gujarat State, which is outside the original civil jurisdiction of the High Court of Bombay or Madras or Calcutta, even without probate, the rights acquired by the executor or legatee of the will can be established before the court or before any other authority. It was submitted that in the circumstances, the trial court was justified in entertaining the suit and that the contention that the suit could not have been instituted unless the plaintiffs have obtained probate, deserves to be rejected. It was, accordingly, urged that the appeal being devoid of merit, does not merit acceptance and deserves to be dismissed at the threshold.
14. In the backdrop of the facts and contentions noted hereinabove, it may be pertinent to refer to the findings recorded by the courts below. The trial court has, upon appreciation of the evidence on record, recorded findings of fact to the effect that during the life time of the father of the defendants, on 19.2.1950, the ancestral properties were partitioned and the same were divided between the five sons. The document evidencing partition came to be produced vide exhibit-39 which was signed by all the brothers as well as their father. The trial court found that Triveniben was in possession of the suit properties since a long time back. Not only that the whole property was partitioned between the defendants No.1, 2 and 3 and defendant No.9 as evidenced by the document executed by their father. From the document of 1950, it was found that all the concerned persons were found in possession of their respective properties. The trial court, accordingly, found that a partition had taken place in the year 1950 and that the properties which remained in the possession of deceased Triveniben were not mentioned in the said document. The trial court found that there was no documentary evidence to show that the deceased Keshavji, father of the defendants No.1, 2, 3 and 9 had got any ornaments made and gifted the same to Triveniben and was of the opinion that whatever ornaments remained in possession of deceased Triveniben at the time of her death, were her Streedhan ornaments. Considering the contents of the document of 1950, the trial court found that the suit properties could not be said to be joint properties and that the property that remained in possession of deceased Triveniben was held by her as sole owner and none of the defendants had ever objected to the ownership of the deceased Triveniben so far as the suit properties are concerned.
15. Insofar as the execution of the will is concerned, the trial court found that Triveniben Keshavji had duly executed the will dated 28.1.1987. For the purpose of proving the will, the plaintiffs had examined attesting witness, Dinkarrai Mulshanker Bhatt, at exhibit-194, who had specifically admitted that the will was signed by deceased Triveniben and other attesting witnesses and that he had also put his signature as a witness to the will. He had denied that Triveniben was suffering from a long sickness and high blood pressure. The original will was produced at exhibit-195 and was duly registered and was found to have been signed by deceased Triveniben and attesting witness – Dinkarrai. The defendant No.9 – Kanaiyalal K. Kareliya was also examined at exhibit-202 and he had supported the contents of the will. He had also stated that the will was read over to deceased Triveniben and she had signed the same and thereafter, all the witnesses had attested the will. He had further stated that at the time of making the will, deceased Triveniben was of sound mind and health. It is in the light of the aforesaid findings of fact recorded by it, that the trial court has held that the will dated 28.1.1987 has been duly executed and that the plaintiffs were entitled to recover the property involved in the suit on the basis of the said will.
16. The lower appellate court, in the impugned judgement and decree, has upon re-appreciation of the evidence on record, recorded that it is an admitted fact that by executing a writing on 19.2.1950 (exhibit-39), immovable properties of Keshavji Anandjibhai were divided amongst his sons, that is, between Bhanjibhai, Jayantibhai, Rasikbhai, Champakbhai and Kanaiyalal. It is not in dispute between the parties that immovable suit properties do not form part of the writing executed on 19.2.1950. The lower appellate court also took note of the fact that for twenty eight years, deceased Triveniben had received rent in respect of the immovable property and at no point of time, acceptance of rent by her, was objected to by any of the defendants. That a suit notice was given to the tenant at the instance of Bhanjibhai wherein the property was referred to as Triveniben's property. A compromise, exhibit-166 came to be arrived at in Special Civil Suit No.147 of 1983 by the appellant No.3, Champaklal, against step brother Bhanjibhai, wherein it has been stated that at the time of partition of the properties amongst the brothers in February 1950, Keshavji Anandjibhai kept part of the properties with himself, which was kept for himself and for Triveniben. A notice (exhibit-244) was given by Jayantilal (appellant No.1) to Bhanjibhai, wherein it is stated that as per the family arrangement, the properties located at – Opposite Suthar Gali and Opposite Vana Na Uttara, had come into the share of Triveniben. Similarly, a notice exhibit 245 was given by Champaklal to Bhanjibhai. Exhibit-246 is the notice given by Champaklal’s Advocate to Bhanjibhai, wherein it has been asserted that family arrangement was entered into at the instance of Bhanjibhai. It was further asserted therein that while executing writing of family arrangement, their father had kept separate property for himself and for Triveniben and this separate share was to become Triveniben's own property after the death of their father, and that is how Triveniben has acquired the property as sole owner. The said document thereafter gives the description of the suit property. The lower appellate court also took note of the fact that in the municipal assessment register, the property stands in the name of Triveniben and that the tax appeals are prosecuted in the name of Triveniben, municipal tax receipts are issued in the name of Triveniben. In the light of the aforesaid evidence, the lower appellate court did not assign much significance to the notice, exhibit-332 issued by the defendant No.9, father of the plaintiffs stating that the suit properties are ancestral properties. The lower appellate court noted that in proceedings amongst the brothers, inter-se, that is, against Bhanjibhai the step-brother, an assertion is made that the suit properties belong to Triveniben. In the light of the above referred evidence which has come on record, the lower appellate court concurred with the findings recorded by the trial court, viz. that the suit properties are not ancestral properties, but are properties which have come to the share of deceased Triveniben.
17. As regards the validity of the will dated 28.2.1987, the lower appellate court observed that the plaintiff had stated that the Advocate who had drafted the will was coming to his residence for about 15 to 20 days prior to its final execution. That he had come at least four times and on a couple of occasions, Triveniben had given him instructions. The will came to be signed at the plaintiff's residence. The will was read over to Triveniben. PW-2 the attesting witness had deposed that he was called at about 9:30 a.m. on 28.1.1987 and that other attesting witness and advocate, etc. were present. That at the instance of Triveniben, the draft was read over by advocate and all had signed in his presence. Triveniben’s mental and physical condition was good. She was conscious and appeared to have the capacity to understand. The lower appellate court, accordingly, upheld the legality and validity of the will and found that the will had been duly executed by testatrix. It is in the light of the above referred findings recorded by it that the lower appellate court held in favour of the plaintiff.
18. From the questions proposed by the appellants, the first contention raised is that the suit properties are not ancestral properties and that Triveniben had no right or authority to bequeath the same by way of a will. In this regard, in the light of the concurrent findings of fact recorded by both the courts below, it is apparent that the ancestral properties had been partitioned between the father and the sons, namely, the defendants No.1, 2, 3 and 9 and that the suit properties had been retained by their father Keshavji Anandji towards his and Triveniben's share. All the parties have treated the suit properties to be the properties which had come to the share of Triveniben, which is evident from the documentary evidence which have come on record. In the circumstances, no infirmity can be found in the conclusion arrived at by the lower appellate court that the suit properties belonged to Triveniben and were not ancestral properties. On behalf of the appellants, the learned counsel is not in a position to point out any material to the contrary to establish that the suit properties are, in fact, ancestral properties.
19. Insofar as the execution of the will is concerned, the lower appellate court has recorded concurrent findings of fact to the effect that the plaintiffs have duly proved the execution of the will in question. As noticed earlier, the plaintiff had examined the attesting witness who has duly proved that the will had been executed in accordance with law and that the testatrix- Triveniben was in a conscious and healthy state of mind. On behalf of the appellants, nothing has been pointed out to dislodge the concurrent findings of fact recorded by the lower appellate as regards due execution of the will nor has any evidence to the contrary been pointed out. Under the circumstances, the conclusions arrived at by the lower appellate court as regards the validity of the will in question being based upon concurrent findings of fact recorded by it after appreciating the evidence on record, does not give rise to any substantial question of law.
20. The controversy as to whether the gold ornaments in question are the streedhan of the deceased Triveniben, is purely a question of fact. Both the courts below, upon appreciation of the evidence on record, have found, as a matter of fact, that the said ornaments were the streedhan of deceased Triveniben.
The said conclusion being based upon concurrent findings of fact recorded by the lower appellate court, also does not give rise to any question of law.
21. The main contention raised on behalf of the appellants before this court was that in the absence of probate having been obtained, the suit itself was not maintainable in the light of the provisions of section 213 of the Indian Succession Act. In this regard, it may be germane to refer to the provisions of section 213 of the Act, which reads thus:
“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 by Muhammadans or Indian Christians, 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.”
Thus, sub-section (1) of section 213 of the Act creates a bar to the establishment of any right under a will by an executor or legatee unless probate or letters of administration have been obtained. However, sub-section (2) qualifies the same, by laying down the categories in respect of which section 213 shall apply. Clause (i) thereof provides that the said section shall 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. Clause (ii) thereof provides that the said section shall apply 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. In the present case, admittedly, clause (ii) of sub- section (2) of section 213 would not be attracted.
22. Insofar as the applicability of clause (i) of sub-section (2) of section 213 is concerned, it would be necessary to refer to clauses (a) and (b) of section 57 of the Act. Section 57 of the Act falls under Part VI which bears the heading – “Testamentary Succession”, and makes provision for application of certain provisions of the Part to a class of wills made by Hindus, etc. The said section lays down that the provisions of the said 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 Madras and Bombay; and (b) to all such wills and codicils made outside those territories and limits so far as relates to immovable 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).
23. Thus, a joint reading of section 213 and section 57(a) and (b) makes it clear that the provisions of section 213 of the Act would be applicable only in cases falling within the sweep of clauses (a) and (b) of section 57 of the Act. Thus, the provisions of section 213 of the Act would not be attracted in respect of the properties situated within the territories which were not falling within the local limits of ordinary civil jurisdiction of the High Court Judicature at Madras and Bombay.
24. The Supreme Court in the case of Clarence Pais and others v. Union of India (supra) has held thus :
“(6) The scope of section 213(1) of the Act is that it prohibits recognition of rights as an executor or legatee under a will without production of a probate and sets down a rule of evidence and forms really a part of procedural requirement of law of forum. Section 213(2) of the Act indicates that its applicability is limited to cases of persons mentioned therein. Certain aspects will have to be borne in mind to understand the exact scope of this section. The bar that is imposed by this section is only in respect of the establishment of the right as an executor or legatee and not in respect of the establishment of the right in any other capacity. The section does not prohibit the will being looked into for purposes other than those mentioned in the section. The bar to the establishment of the right is only for its establishment in a court of justice and not its being referred to in other proceedings before administrative or other tribunals. The section is a bar to everyone claiming under a will, whether as a plaintiff or defendant, if no probate or letters of administration are granted. The effect of section 213(2) of the Act is that the requirement of probate or other representation mentioned in sub- section (1) for the purpose of establishing the right as an executor or legatee in a court is made inapplicable in case of a will made by Muhammadans and in the case of wills coming under section 57(c) of the Act. Section 57(c) of the Act applies to all wills and codicils made by any Hindu, Buddhist, Sikh or Jaina, on or after the first day of January, 1927 which does not relate to immovable property situate within the territory formerly subject to the Lieutenant Governor of Bengal or within the local limits of the ordinary civil jurisdiction of the High Courts of Judicature at Madras and Bombay, or in respect of property within those territories. No probate is necessary in the case of wills by Muhammadans. Now by the Indian Succession (Amendment) Act, 1962, the section has been made applicable to wills made by Parsis dying after the commencement of the 1962 Act. 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 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.” (Emphasis supplied)
25. This Court in the case of Minaxiben Shashikantbhai Patel v. District Collector, Gandhinagar (supra), has held thus:
“(5) In my view, as per the provisions of Section 57 of the Indian Succession Act, 1925 (hereinafter referred to as “the Act”), the provisions of testamentary succession are applicable to the will made by Hindu, subject to restriction and the modifications specified therein. The will made by Hindu are differently classified qua the property situated within the territories, which were subject to the control of the Lieutenant-Governor of Bengal or within the local limits of the ordinary civil jurisdiction of the High Courts of Judicature at Madras and Bombay. Whereas, qua all other wills made by Hindus, a separate clause is provided under clause (c) of the Section 57 of the Indian Succession Act.
[6] As per Section 213 of the Indian Succession Act, the right as executor or legatee pursuant to the will can be established in any Court of justice unless a Court of competent jurisdiction has granted probate of the said will. However, sub-section 2 of Section 213 provides that this Section shall not apply to the will made by Hindu, Buddhist or Sikh where such wills are of the clauses specified in clause (a) & (b) of Section 57 of the Act. To say in other words, if the will is falling in the category of the clauses other than Clause (a) & (b) of Section 57 of the Act, the restriction as provided in sub-section 1 of Section 213 of the Act shall not operate.
[7] At this stage, it would be worthwhile to extract certain observations of the Apex Court in the case of Clarence Pais and Ors. Vs. Union of India, reported at 2001 SC 1151 wherein while considering the constitutional validity of the provisions of Section 213 vis-a-vis Section 57 of the Indian Succession Act at para 6, it has been observed by the Apex Court inter alia as under:
“A combined reading of Section 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 Section 57(a) and (b), sub-section(2) of 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.” (emphasis supplied.)
[8] The aforesaid position of law is settled by the highest Court of the country and therefore, no further discussion may be required.
[9] If the facts of the present case are considered in light of the above referred legal position, it cannot be disputed that the property is situated at Gandhinagar and is outside the territories of the original civil jurisdiction of the High Court of Bombay and the property is even otherwise is situated in Gujarat State, which is outside the original civil jurisdiction of the High Court of Bombay or Madras or Calcutta. Therefore, even without probate, the rights acquired by the executor or legatee of the will can be established before the Court or before any other authority which in the present case is revenue authority.”
26. In the opinion of this court, both the above cited decisions would be squarely applicable to the facts of the present case inasmuch as, the suit properties are situated in Surendranagar in the State of Gujarat, which is clearly outside the territories referred to in clause (a) of section 57 of the Act. The provisions of section 213 of the Act would clearly not be attracted in the facts of the present case. In the circumstances, the lower appellate court was justified in holding that it was not necessary to obtain probate in respect of the immovable suit properties.
27. In the light of the above discussion, this court is of the view that there is no legal infirmity in the impugned judgement and decree passed by the lower appellate court. Besides, the impugned judgment and decree passed by the lower appellate court, being based upon concurrent findings of fact recorded by it after appreciating the evidence on record, does not give rise to any question of law, much less, a substantial question of law so as to warrant interference in exercise of powers under section 100 of the Code. The appeal, therefore, fails and is, accordingly, dismissed.
[HARSHA DEVANI, J.] parmar*