JUDGMENT A.K. Yog, J.
1. Above First Appeal From Order under Section 299 of the Indian Succession Act, 1925 (called 'the Act'), filed by Smt. Bimla Gaindhar Is against the judgment and order dated March 12th, 1996 passed by IIIrd Additional District Judge, Saharanpur, deciding issue No. 3 ; viz., (whether a 'Hindu' is required to obtain a probate in the State of U. P. in case of a 'Will' in his favour?)
2. Smt. Bimla Gaindhar (appellant before us) had filed a petition under Section 276 of the Act for grant of probate on the basis of purported Will, an unregistered document (paper No. 10A1 on original record).
3. We are omitting to give other details as the same is not required for the purpose of deciding the issue in hand and for disposal of the present first appeal from order.
4. According to the impugned Judgment and order dated March 12, 1996, learned Additional District Judge came to the conclusion, relying upon two single Judge reported decisions by the Bench of learned single Judge, Bhaiya Ji v. Jageshwar Dayal Bajpai, AIR 1978 All 268 and Smt. Pitamo v. Shyam Singh, AIR 1978 All 301, that no probate was required in the facts of the Instant case and consequently held that the proceedings on the basis of the 'Will' for seeking letter of probate are misconceived since the 'Will', in question did not fall in either of the category contemplated under Clauses (a) or (b) of Section 57 read with Section 213 of the Act.
5. The sole question required to be decided in the instant case is "whether the appellant is required to claim 'Probate' on the basis of 'Will' dated November 2, 1991 (Paper No. 10A1) attached with the probate petition? It is to be noted that the deceased Chandra Shekhar Gaindher according to the applicant executed a 'Will' (unregistered) and after his death bestowed his all rights in his movable and immovable properties and other household goods in favour of her mother Smt. Bimla Gaindher/ appellant and further that his wife the deceased Smt. Usha Gaindher to have no right under said 'Will'.
6. There is no dispute that movable and immovable properties of Chandra Shekhar Gaindher deceased, (the subject matter of the said Will) are situate outside territories and have not been 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. The parties to the 'Will' admittedly are 'Hindus'.
7. For convenience of the Court, Sections 57, 213, 214, 370, 372 and 387 of the Act, which are relevant for the present appeal, are reproduced below ;
"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 Madras and Bombay ;
(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) :
Provided that marriage shall not revoke any such Will or codicil.
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 Will made by Muhammadans, and shall only apply :
(i) In the case of Will made by any Hindu, Buddhist, Sikh or Jaina where such Wills are of 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, where such Wills are made within the local limits of the ordinary (original) civil Jurisdiction of the High Court at Calcutta, Madras and Bombay, and where such Wills are made outside those limits, in so far as they relate to immovable property situate within those limits.
214, Proof of representative title a condition precedent to recovery through the Courts of debts from debtors of deceased persons.-
(1) No Court shall :
(a) Pass a decree against a debtor of a deceased person for payment of his debt to a person claiming on succession to be entitled to the effects of the deceased person or to any part thereof, or
(b) Proceed, upon an application of a person claiming to be so entitled, to execute against such a debtor a decree or order for the payment of his debt, except on the production, by the person so claiming of:
(i) a probate or letters of administration evidencing the grant to him of administration to the estate of the deceased ; or
(ii) a certificate granted under Section 31 or Section 32 of the Administrator-General's Act. 1913, and having the debt mentioned, therein ; or
(iii) a succession certificate granted under Part X and "having the debt specified therein ; or
(iv) a certificate granted under the Succession Certificate Act, 1989 ; or
(v) a certificate granted under Bombay Regulation No. VIII of 1827, and, if granted after the first day of May, 1889, having the debt specified therein.
(2) The word 'debt' in subsection (1) includes any debt except rent, revenue or profits payable in respect of land used for agricultural purposes.
370. Restriction on grant of certificates under this Part.--(1) A succession certificate (hereinafter in this Part referred to as certificate) shall not be granted under this Part with respect to any debt or security to which a right is required by Section 212 or Section 213 to be established by letters of administration or probate :
Provided that nothing contained in this section shall be deemed to prevent the grant of a certificate to any person claiming to be entitled to the effects of a deceased Indian Christian, or to any part thereof, with respect to any debt or security, by reason that a right thereto can be established by letters of administration under this Act.
(2) For the purposes of this Part, "security" means :
(a) any promissory note, debenture, stock or other security of the Central Government or of a State Government;
(b) any bond, debenture, or annuity charged by Act of Parliament of the United Kingdom on the revenues of India ;
(c) any stock or debenture of, or share In, a company or other incorporated institution ;
(d) any debenture or other security for money issued by, or on behalf of, a local authority;
(e) any other security which the State Government may, by notification in the official Gazette, declare to be a security for the purposes of this Part.
372. Application for certificate.--(1) Application for such a certificate shall be made to the District Judge by a petition signed and verified by or on behalf of the applicant in the manner prescribed by the Code of Civil Procedure, 1908, for the signing and verification of a plaint by or on behalf of a plaintiff, and setting forth the following particulars, namely :
(a) the time of the death of the deceased ;
(b) the ordinary residence of the deceased at the time of his death and, if such residence was not within the local limits of the jurisdiction of the Judge to whom the application is made, then the property of the deceased within those limits ;
(c) the family or other near relatives of the deceased and their respective residence ;
(d) the right in which the petitioner claims ;
(e) the absence of any impediment under Section 370 or under any other provision of this Act or any other enactment, to the grant of the certificate or to the validity thereof if it were granted ; and
(f) the debts and securities in respect of which the certificate is applied for.
(2) If the petition contains any averment which the person verifying it knows or believes to be false, or does not believe to be true, that person shall be deemed to have committed an offence under Section 198 of the Indian Penal Code.
(3) Application for such a certificate may be made in respect of any debt or debts due to the deceased creditor or in respect of portions thereof.
387. Effect of decisions under this Act, and liability of holder of certificate thereunder.--No decision under this part upon any question of right between any parties shall be held to bar the trial of the same question in any suit or in any other proceeding between the same parties, and nothing in this Part shall be construed to affect the liability of any person who may receive the whole or any part of any debts or security, or any Interest or dividend on any security, to account therefore to the person lawfully entitled thereto."
8. Instead of ourselves dealing with aforementioned sections, we may reproduce para 6 of the Apex Court judgment in the case of Clarence Pais and Ors. v. Union of India, 2001 ACJ 1137 :
"6. The scope of Section 213(1) of the Act is that it prohibits recognition of right as an executor or legatee under a Will without production of a probate and sets down a rule of evidence and forms rally a part of procedural requirement of the 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 subsection (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 Jama, 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. N o probate is necessary in the case of Will 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 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. 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."
(italics by us to lay emphasis)
9. Similar view is taken by this Court in the cases of Bhaiya Ji (supra) and Smt. Pitamo (supra). In the case of Administrator General of U. P. v. Late Dharamveer alias Mohd. Haroon, AIR 1997 All 158, another learned single Judge has taken similar view.
10. In the instant case, learned counsel for appellant conceded, in the facts of the case, that the 'Will' in question is neither under Clause (a) nor under Clause (b) of Section 57 of the Act and that the 'Will' in question is covered by Clause (c) of Section 57 of the Act.
11. Section 213(1) of the Act places restriction upon an executor/ legatee under a Will and requires him to obtain probate before he can approach civil court of competent jurisdiction to establish rights as executor/legatee.
12. Section 213(2) of the Act contains except to the restriction conceived under Section 213(1) of the Act and explains that no 'Probate' is required in case of Will executed by Muhammadan, and :
'Probate' shall be required if "Will" is one falling under Clause (a) and/or (b) of Section 57, and In case of a 'Will' made by Parsi, subject to the conditions contained in Section 213(2)(ii).
13. This shows that 'embargo' placed by Section 213 of the Act for Instituting a suit before court of justice by executor or legatee under a Will is not attracted in the case of Will falling under Clause (c) of Section 57 of the Act. In other words, no probate is required in case of suit filed before the court of justice for establishing the right under a 'Will' falling under Clause (c) of Section 57 of the Act.
14. Reference may be made to Section 370(1) in Part X of the 'Act', which contemplates that a succession certificate shall not be granted with respect to any debt or security in respect of which a right is required to be established under Section 213 of the said Act. This section amply removes doubt whatsoever and confirms the above conclusion, namely in case of a 'Will' under Clause (c) of Section 57 of the Act no letters of Administration or Probate is required, succession certificate is to be applied for.
15. Section 214 of the Act provides that 'No Court shall pass a Decree in favour of a person claiming on succession to be entitled to the effect of a deceased person or proceed upon an application of a person, claiming to be so entitled-under a 'Will' as 'Legatee' or 'Executor' except on production by the person so claiming a succession certificate under Part X, apart from Probate etc., as the case may be.
16. Clauses (e) and (f) of Section 372 of the Act further provides that an application for a succession certificate shall be made to the concerned District Judge by a petition setting forth the particulars and besides other details it is to be mentioned that there is no impediment under Section 370 of the Act with respect to the debts and securities for which succession certificate is applied for.
17. Section 213 of the Act is not attracted in the present case, since the 'Will' in question is not in the classes specified in Clauses (a) and (b) of Section 57 of the Act and, therefore, the restriction imposed by Section 370(1) (to grant succession certificate), is also not relevant and consequently, an application under Section 372 of the Act shall be maintainable. No doubt grant of 'certificate' shall be subject to the provision of Section 387 which clearly declares that grant of certificate and/or adjudication of question regarding right to grant of certificate in favour of one shall not bar trial court to decide the same question, in any suit or in any other proceeding between same parties.
18. In view of the above, we find no merit in the present first appeal from order.
19. It is accordingly, dismissed.
20. No order as costs.