RAVINDER NATH AGARWAL versus YOGENDER NATH AGARWAL & ORS. on 12 February 2021

[2021] 3 S.C.R. 881

RAVINDER NATH AGARWAL

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v.

YOGENDER NATH AGARWAL & ORS.

(Transfer Petition (Civil) No.970 Of 2016)

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FEBRUARY 12, 2021

[V. RAMASUBRAMANIAN, J.]

Transfer Petition – Testamentary proceedings were initiatedmuch after the partition suit – Two transfer petitions filed seekingtransfer of partition suit from Delhi to Nainital, Uttarakhand andof testamentary case from Uttarakhand to Delhi – Held: Petitionerwas convinced that there was no bar for him to establish his rightas a legatee under the will, even without first obtaining letters ofadministration – Hence, his subsequent act of filing a testamentarycase before High Court of Uttarakhand is nothing but a ruse totake advantage of the general proposition of law that probateproceedings are proceedings in rem and should have primacy – Noground made out to transfer the partition suit to District Court,Nainital – Second transfer petition seeks transfer of the testamentarycase pending in the High Court of Uttarakhand to the District Court,Saket, Delhi – Since the Will set up by the petitioner covers propertieslocated both in Nainital and Delhi, both these courts have concurrentjurisdiction – But in view of proviso (b) to s.273, letters ofadministration granted by a District Court cannot have validity inrespect of a property located outside the State, if its value exceedsRs. 10,000/- –To resolve this, testamentary case is transferred tothe High Court of Delhi and the partition suit is transferred fromthe District Court, Saket, Delhi to the High Court of Delhi – IndianSuccession Act, 1925 – ss.57-191, 217-369 .

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Indian Succession Act, 1925:

ss.57, 264(2) – Held: Bar u/s.264(2) has no application tocases, to which s.57 applies.

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ss.212, 213 – Applicability of – Discussed.

ss.57, 212, 213, 264 – Held: By virtue of s.213(2)(i) r/ws.57(a), (b), the mandatory requirement to seek probate or letters ofadministration for establishing a right as executor or legatee under H881

Aa Will, is applicable only to Wills made by a Hindu, Buddhist, Sikhor Jain within the local limits of the ordinary original civil jurisdictionof certain High Courts and to Wills made outside those territories,to the extent they cover immovable property situate within thoseterritories.BDisposing of the Transfer Petitions, the Court HELD: 1.1 This Court did not consider or did not have anoccasion to consider in any of the decisions referred, the differencebetween cases where a party is entitled to rely upon a Will in ajudicial proceeding even without getting probate/letters ofCadministration and cases where there is a bar for the productionof a Will in a judicial proceeding without first getting probate/letters of administration. The primacy to be accorded to probateproceedings would depend upon the category to which the casebelongs. [Para 23][893-G-H; 894-A]

D1.2 The District Judge is conferred with the jurisdiction togrant and revoke probates and letters of administration in allcases within his District, under Section 264 of the IndianSuccession Act, 1925. Sub-section (2) of Section 264 imposes abar upon the Courts in any local area beyond the limits of thetowns of Calcutta, Madras and Bombay, from receivingEapplications for probate or letters of administration, until the StateGovernment, by a notification in the Official Gazette, authorizedthem so to do, wherever the deceased is a Hindu, Muhammadan,Buddhist, Sikh or Jaina or an exempted person. But the bar underSub-section (2) has no application to cases, to which Section 57Fapplies. [Paras 27, 28][894-E, G-H; 895-A]

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1.3 The jurisdiction conferred upon the District Judge inChapter IV of Part IX, is also exercisable by the High Court, byvirtue of the concurrent jurisdiction conferred under Section 300.The bar under sub-Section (2) of Section 264 is found also in sub-GSection (2) of Section 300. Part VIII of the Act which is perhapsthe smallest among the several parts of the Act, contains twoimportant provisions in Sections 212 and 213. While Section 212deals with the right to intestate’s property, Section 213 dealswith the establishment of the right as executor or legatee undera Will. These two Rules can be stated as follows : (i) without firstH

& ORS.

obtaining letters of administration from a Court of competentjurisdiction, no right to any property of a person other than aHindu, Muhammadan, Buddhist, Sikh, Jaina, Indian Christian orParsi, who has died intestate, can be established in any court ofjustice; (ii) no right as executor or legatee under a Will (otherthan a Will made by a Muhammadan or Indian Christian) can beestablished in any Court of justice unless probate of the Will orletters of administration with the Will annexed, has been grantedby a court of competent jurisdiction. But the second Rule whichis found in Section 213, is applicable only: (i) in the case of Willsmade by any Hindu, Buddhist, Sikh or Jaina, if those Wills are ofthe classes specified in Clauses (a) and (b) of Section 57; and (ii)in the case of Wills made by any Parsi dying after thecommencement of the Amendment Act 16 of 1962, if such Willsare made within the local limits of the ordinary original civiljurisdiction of the High Courts at Calcutta, Madras and Bombayand in case such Wills have been made outside those limits, in sofar as they relate to immovable property situate within those limits.[Paras 31-34][895-G; 896-C; 897-B-E]

1.4 A cumulative reading of Sections 57, 213 and 264 wouldshow: (i) that a person claiming to be an executor or legateeunder a Will cannot rely upon the Will, in any proceeding beforea Court of justice, unless he has obtained probate (if an executorhas been appointed) or letters of administration with the Willannexed, if such a Will has been executed by certain classes ofpersons; and (ii) that the jurisdiction to grant probate or lettersof administration vests only in courts located within the towns ofCalcutta, Madras or Bombay and the Courts in any local areanotified by the State Government in the Official Gazette.Therefore, what follows is that: (i) unless the testator belongs toany of the classes of persons specified in the Act; and (ii) unlessthe Will is made or some of the properties covered by the Willare located, within the local limits of a notified area, there is nonecessity for an executor or a legatee under a Will to seek probateor letters of administration. The decision in Balbir Singh Wasudid not take note of the bar under Section 264(2) when it opinedin general terms in Paragraph 5 of the judgment that “We do notread Section 213 as prohibiting the executor for applying forprobate as a matter of prudence or convenience to the courts in AB

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[2021] 3 S.C.R.

Aother parts of the country not covered by Section 213”.[Paras 35, 36][897-F-H; 898-A-B]

Balbir Singh Wasu vs. Lakhbir Singh & Others (2005)12 SCC 503 – referred to.

1.5 By virtue of Section 213(2)(i) read with Clauses (a) andB(b) of Section 57, the mandatory requirement to seek probate orletters of administration for establishing a right as executor orlegatee under a Will, is applicable only to Wills made by a Hindu,Buddhist, Sikh or Jaina within the local limits of the ordinaryoriginal civil jurisdiction of certain High Courts and to Wills madeCoutside those territories, to the extent they cover immovableproperty situate within those territories. Therefore, there is noprohibition for a person whose case falls outside the purview ofthese provisions, from producing, relying upon and claiming aright under a Will, in any proceeding instituted by others includingthe other legal heirs for partition or other reliefs. [Para 37]D[898-C-D]

2.1 In the case on hand, the petitioner 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 CivilJudge, Senior Division, Nainital, for a decree of permanentEinjunction, on the basis of the very same last Will and Testamentdated 06.04.2011 of his father, without seeking letters ofadministration. He did not think that Section 213(1) was a bar forhim to establish his right as a legatee under the Will, withoutobtaining letters of administration. After having done so, theFpetitioner in T.P (C) No.970 of 2016 chose to file TestamentaryCase No.01 of 2019 after 8 years of first shooting a claim underthe Will and that too after the vacation of the stay of furtherproceedings in the partition suit by order dated 09.10.2018.Therefore, the petitioner in T.P (C) No. 970 of 2016 cannotbe allowed to make this Court a fait accompli. [Paras 38, 39]G[898-E-G]

2.2 The partition suit, which is pending on the file of theDistrict Court, Saket is 8 years old, as it was instituted on the fileof the High Court of Delhi in September, 2012 and was transferredto the District Court in 2016. The written statement in the saidH

suit was filed by Major ‘RN’ way back in November, 2012, whenthe suit was pending in the High Court of Delhi. In the writtenstatement, the petitioner has pleaded the execution of thedisputed Will. Therefore, Major ‘RN’ was convinced that therewas no bar for him to establish his right as a legatee under thewill, even without first obtaining letters of administration. Hence,his subsequent act of filing a testamentary case before the HighCourt of Uttarakhand, is nothing but a ruse to take advantage ofthe general proposition of law that probate proceedings areproceedings in rem and that they should have primacy. Thisargument is available only to a person who is disabled by virtueof 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 petitionerin T.P (C) No.970 of 2016 that the partition suit should follow thetestamentary case, is rejected. Even on facts, there is no groundto order the transfer of the partition suit to the District Court,Nainital and hence, T.P (C) No. 970 of 2016 is dismissed.[Paras 40, 47][898-H; 899-A-D; 901-C]

2.3 In so far as the second transfer petition is concerned,the relief sought therein is to transfer the testamentary casepending in the High Court of Uttarakhand to the District Court,Saket, Delhi. Since the Will set up by the petitioner coversproperties located both in Nainital and Delhi, both these courtshave concurrent jurisdiction. But in view of Proviso (b) to Section273, letters of administration granted by a District Court cannothave validity in respect of a property located outside the State, ifits value exceeds Rs. 10,000/-. However, this problem can beresolved by ordering the transfer of the testamentary case to theHigh Court of Delhi and ordering the transfer of the partitionsuit from the District Court, Saket back to the High Court ofDelhi. The partition suit be clubbed along with the testamentaryproceeding and taken up together for disposal. [Paras 48, 49][901-D-G]

Ishwardeo Narain Singh vs. Smt. Kamta Devi andOthers AIR 1954 SC 280 – held inapplicable.

Chiranjilal Shrilal Goenka vs. Jasjit Singh and Others(1993) 2 SCC 507 : [1993] 2 SCR 454; T. Venkata

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ANarayana and Others vs. Venkata Subbamma (Smt.)(dead) & Others (1996) 4 SCC 457 : [1996] 3SCR 1042; Smt. Rukmani Devi and Others vs. NarendraLal Gupta (1985) 1 SCC 144; Nirmala Devi vs. ArunKumar Gupta (2005) 12 SCC 505; Smt. Rukmani Deviand Others vs. Narendra Lal Gupta (1985) 1 SCC 144B– referred to.

Case Law Reference

CIVIL ORIGINAL JURISDICTION : Transfer Petition (Civil)No. 970 of 2016.

Petition for transfer of the suit no. CS-126 of 2016 of AdditionalEDistrict Judge, Saket Court, New Delhi.

With

Transfer Petition (Civil) No.2779 of 2019.

Gopal Shankarnarayanan, Sr. Advocate, Ms. Nitya Ramakrishnan,FMs. Rakshanda Deka, Trideep Pais, Ms. Shivam Sharma, Ms. AnjanaChandrashekar, Sanjeev Agarwal, Manish Kumar, Piyush Kaushik, Ms.Divya Roy, H.S. Sharma, Yetendra Sharma, Prashant Kumar, M/S. Ap& J Chambers, Gautam Narayan, Advs. for the appearing parties.

The following Judgment of the Court was delivered :

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JUDGMENT

1. While Transfer Petition (C) No.970 of 2016 is for the transferof 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 Districtof Nainital, Uttarakhand, Transfer Petition (C) No.2779 of 2019 is forH

the transfer of a testamentary case pending on the file of the High Courtof Uttarakhand, Nainital to the District 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 ofVillage Bithoriya No.1, Tehsil Haldwani, District Nainital, Uttarakhand,died on 07.05.2011, at the ripe old age of 91 years, leaving behind himsurviving, five sons and a daughter. They were (1) Major Ravinder NathAgarwal, (2) Surender Nath, (3) Narender Nath, (4) Virender NathAgarwal, (5) Lily Nath (daughter) and (6) Yogender Nath Agarwal. Outof these six children, Shri Narender Nath is now no more. He died on06.09.2019 leaving behind his wife Smt. Ira Joshi and two sons by nameNikhil Nath and Aditya Nath.

4. Claiming that his father Late Badri Nath executed his last Willand Testament on 06.04.2011, cancelling and revoking his previous Willdated 26.06.2005 and that under the last Will dated 06.04.2011, a vastextent of agricultural land in Village Bithoriya No.1, Tehsil Haldwani,District Nainital, was bequeathed to him, the eldest son Major RavinderNath Agarwal got mutation effected in his favour in the revenue records,but the same became the subject matter of a writ petition filed by LilyNath on the file of the High Court of Uttarakhand. Apart from filing awrit petition challenging the mutation effected in favour of her eldestbrother, Lily Nath also filed a civil suit in Suit No.57 of 2011 on the file ofCivil Judge, Senior Division, Nainital seeking a decree of permanentinjunction. As a counter blast, Major Ravinder Nath, who claims to bethe legatee under the Will and who got mutation effected in his favour inrespect of one property, also filed civil suit in Suit No.72 of 2011 on thefile of the Civil Judge, Senior Division seeking a decree of permanentinjunction.

5. Thereafter the last son Shri Yogender Nath, filed a suit in C.SNo.2745 of 2012 on the file of High Court of Delhi, for a partition of allthe properties left behind by Shri Badri Nath. The suit was filed inSeptember-2012. But in the year 2016, presumably after the filing of thewritten statements, the said suit was transferred to the file of the AdditionalDistrict Judge, Saket Court, New Delhi and re-numbered as C.S No.126of 2016.

6. Immediately thereafter, Major Ravinder Nath Agarwal filedthe first of these transfer petitions namely T.P (C) No. 970 of 2016, A

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Aseeking the transfer of the partition suit pending on the file of theAdditional District Judge, Saket, New Delhi to the Court of District Judgeat Nainital, Uttarakhand. On 08.07.2016, this Court ordered notice in thetransfer petition and also granted stay of further proceedings in thepartition suit.B7. But a few days before this Court ordered notice and grantedstay, the plaintiff in the partition suit namely Sh. Yogender Nath (lastson) abandoned the suit and hence the only daughter Lily Nath got herselftransposed as the plaintiff, by moving an application under Order XXIIIRule 1-A. The original plaintiff Yogender Nath was transposed asdefendant No.5.C

8. On 09.10.2018, this Court passed an order in T.P (C) No. 970of 2016, vacating the stay of further proceedings in the partition suitearlier granted on 08.07.2016. Thereafter the eldest son Major RavinderNath filed a petition in Testamentary Case No.01 of 2019 on the file ofthe High Court of Uttarakhand at Nainital, seeking the grant of letters ofDadministration with the Will dated 06.04.2011 annexed thereto, underSection 276 read with Sections 250 and 273(b) of the Indian SuccessionAct, 1925. Upon receipt of summons in the said testamentary case, thedaughter Lily Nath came up with the second transfer petition namelyT.P (C) No.2779 of 2019, praying for the transfer of the testamentaryEcase from Uttarakhand High Court to the District Court, Saket, NewDelhi where her partition suit is now pending, so that both could be triedtogether.

9. Thus, I have on hand two transfer petitions, one of the year2016, filed by the eldest son seeking a transfer of the partition suit fromFthe District Court, Saket, New Delhi to the District Court, Nainital,Uttarakhand and another of the year 2019 filed by the plaintiff in thepartition suit seeking the transfer of the testamentary case pending onthe 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 MajorRavinder Nath, is the petitioner in the first transfer petition, he shallGhereinafter be referred to as “the petitioner” and Ms. Lily Nath shall bereferred to as “the contesting respondent”.

10. Before I proceed further, it should be brought on record thatthe earliest of the civil suits namely C.S No.57 of 2011 filed by thedaughter Lily Nath for a decree of permanent injunction, on the file ofH

the Civil Judge, Senior Division, Nainital was dismissed for non-prosecution on 27.11.2015. However, the second suit in C.S No.72 of2011 filed by Major Ravinder Nath, seeking a decree of permanentinjunction 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 subjectmatter of any transfer petition.

11. The short question that arises for consideration in these transferpetitions, is as to whether the partition suit pending on the file of theDistrict Court at Saket, New Delhi from the year 2016 (instituted in2012), should be transferred to the District Court, Nainital, Uttarakhandor whether the testamentary case pending on the file of the High Courtof Uttarakhand from 2019, should be transferred to the District Court,Saket, so that it could be tried along with the partition suit already pendingthere.

12. Before I take up for consideration, the rival contentions, threeimportant aspects have to be borne in mind. They are:-

(i) The High Court of Uttarakhand at Nainital does not haveordinary original civil jurisdiction, though it has jurisdiction to entertain atestamentary case for the grant of probate or letters of administration.Therefore, the partition suit pending in the District Court, Saket cannotbe transferred to the High Court of Uttarakhand, but can be transferredonly to a District Court in Nainital. The District court, Nainital will nothave jurisdiction to grant probate/letters of administration in respect of aproperty 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 theeldest son Major Ravinder Nath, covers two properties, one of which isa MIG flat promoted by the Delhi Development Authority at Saket, NewDelhi. The other property is a bhumidhari land lying in Khata No.741measuring an extent of 6.8550 hectares in Village Bithoriya No.1, TehsilHaldwani, District Nainital, Uttarakhand, along with a residential house,service quarters and sheds. Therefore by virtue of Section 264(1) of theIndian Succession Act, 1925, the District Judge, Saket has jurisdiction toentertain a petition for the grant letters of administration, at least in respectof the property at Delhi; and A

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A(iii) The partition suit was filed in the year 2012 on the file of theHigh Court of Delhi and was transferred to the District Court, Saket inthe year 2016. At the time when the eldest son Major Ravinder Nathcame up with T.P (C) No.970 of 2016, no proceeding for the grant ofletters of administration was pending in the High Court of Uttarakhand.Actually the petitioner in T.P (C) No.970 of 2016 chose to file aBtestamentary case in the High Court of Uttarakhand only in January2019, after the stay of partition suit granted in T.P (C) No.970 of 2016was vacated on 09.10.2018. Therefore it must be remembered that thepetitioner in T.P (C) No.970 of 2016 created a situation that could betaken advantage of by him.C

13. Keeping the above background in mind, let me now look atthe grounds on which the transfer of the partition suit from Delhi toNainital is sought. In the transfer petition T.P (C) No.970 of 2016 thepetitioner has contended :

(i) that he was 68 years of age (at that time), suffering fromDmany diseases and undergoing cardiac care treatment withimplanted pace maker;

(ii) that he had suffered a paralytic stroke on the right side ofthe body and a blood clot in the brain; E(iii)that the respondents were already contesting the mutationcase in Haldwani;

(iv) that three of the respondents are foreign nationals residingout of India;

(v) that the subject matter of the suit includes an immovableproperty situate within the jurisdiction of the competent Courtin Nainital; and F

(vi) that there is a bar of jurisdiction of other Courts under UttarPradesh Zamindari Abolition and Land Reforms Act.

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14. In addition to the grounds indicated in the transfer petition, it isalso contended by Sh. Gopal Sankaranarayanan, learned Senior Counseland Sh. Manish Kumar, learned counsel for the petitioner that in a petitionfor transfer, the location and convenience of the parties, subject to theterritorial jurisdiction of the Courts, should also be taken into account;Hthat in the testamentary case, an application under Section 10 CPC was

filed, but before the High Court of Uttarakhand could pass orders on theapplication under Section 10, the second transfer petition came to befiled; that testamentary proceedings, being proceedings in rem, will haveprimacy over other proceedings and, hence, the partition suit is liable tobe transferred; and that by virtue of Proviso (b) of Section 273 of theIndian Succession Act, any probate/letters of administration granted bythe District Court at Saket will not have effect in other States, unless thevalue of the property and estate affected beyond the limits of the Statedoes not exceed Rs.10,000/-.

15. While Sh. Gopal Sankaranarayanan, learned Senior Counselcited the decisions of this Court in Ishwardeo Narain Singh vs. Smt.Kamta Devi and Others.[1] ; Chiranjilal Shrilal Goenka vs. JasjitSingh and Others[2]; T. Venkata Narayana and Others vs. VenkataSubbamma (Smt.) (dead) & Others[3]; Balbir Singh Wasu vs. LakhbirSingh & Others[4],Sh. Manish Kumar learned Counsel relied upon Smt.Rukmani Devi and Others vs. Narendra Lal Gupta[5].

16. In response, Ms. Nitya Ramakrishnan and Sh. H.S. Sharma,learned counsel appearing for the respondents contended that thetestamentary proceedings were initiated deliberately in Uttarakhand afterseven years of the institution of the partition suit in Delhi and that thepetitioner in the first transfer petition is guilty of abuse of the process ofCourt.

17. As can be seen from the rival contentions, most of them areon factual foundation. However, one contention advanced on behalf ofthe 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 andwho has set up a Will, the proceedings in a testamentary case areproceedings in rem and that, therefore, they will have primacy and that,irrespective of the fact that the testamentary proceedings were initiatedmuch after the institution of the partition suit, the partition suit and notthe testamentary case, is liable to be transferred. In support of these 1 AIR 1954 SC 2802 (1993) 2 SCC 5073 (1996) 4 SCC 4574 (2005) 12 SCC 5035 (1985) 1 SCC 144

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Acontentions, the learned counsel appearing for the petitioner has reliedupon certain decisions. The first of these decisions is that of this Court inIshwardeo Narain Singh (supra).This Judgment is relied upon only forthe limited purpose of showing that a Court of probate is concerned onlywith the question whether the document put forward as the last Will andTestament was duly executed and attested in accordance with law andBwhether at the time of execution, the testator was in a sound and disposingstate of mind. We are not concerned in this case with the question as tothe nature of the proceedings for probate or letters of administration.Therefore, the said decision is of no assistance for deciding the questionon hand.C

19. In Chiranjilal Shrilal Goenka (supra), the primary questionthat arose was as to whether an arbitrator appointed by this Court, byconsent of parties, would have jurisdiction to deal even with theproceedings for probate. Answering the question in the negative, thisCourt held that the probate Court alone has been conferred with theDexclusive jurisdiction to grant probate or letters of administration andthat even by consent, the parties cannot confer jurisdiction upon anarbitrator to adjudicate upon the proof or validity of the Will. Obviouslythis decision is only on the question of jurisdiction of an arbitral tribunalrelating to testamentary proceedings and not about the right of a party toseek transfer of a proceeding, from one Court to another, when bothECourts are claimed to have jurisdiction.

20. In T. Venkata Narayana (supra), the question before thisCourt was whether secondary evidence could be led, in a suit forinjunction, to prove an alleged Will. This Court held that a suit for injunctioncannot be converted into a suit for probation of a Will and that if the WillFis to be proved according to law, it has to be by way of a probate proceedingin the Court having competency and jurisdiction according to theprocedure prescribed in the Indian Succession Act. But this decisiondoes not lay down (and could not have laid down) any proposition that allWills executed by all classes of persons in all areas throughout the countryGrequire probate/letters of administration, as we shall see later.

21. Balbir Singh Wasu (supra) is the only case where this Courtwas concerned with the question whether the proceedings for probateinitiated later in point of time than a suit for declaration and injunctioncould proceed further or not. In this case, the party who had first filed aH

suit for declaration and injunction before the Court of a Civil Judge,sought stay of the probate proceedings initiated by the opposite party inthe High Court, later in point of time, on the basis of Section 10 of theCode of Civil Procedure. The High Court rejected the prayer for stay onthe ground that the pendency of the suit for declaration will not bar theHigh Court from entertaining probate proceedings. Without answeringthe question revolving around section 10, CPC directly, this Court held inBalbir Singh Wasu: (i) that a decision on the appellant’s civil suit wouldnot conclude the probate proceedings; (ii) that the question whetherprobate should be granted or not would still be left to be determined bythe High Court, though the decision of the civil Court may be relevanteven in those proceedings; and (iii) that though the requirement of Section213 of the Indian Succession Act, for an executor to obtain probate, maynot apply to all the areas outside the presidency towns (or the notifiedareas), there is no prohibition for an executor to apply for probate as amatter of prudence or convenience, even in cases where they are notcovered by Section 213.

22. There are two interesting aspects to the decision in BalbirSingh (supra). They are: (i) Without deciding the question whether anapplication under Section 10 CPC would lie or not, this Court transferredthe probate proceedings from the High Court to a District Court whichwas competent to entertain probate proceedings and transferred the suitfor declaration also to the same Court so that both of them could beclubbed and heard together. Unfortunately, this Court omitted to takenote of the fact that in cases where no probate is mandatorily requiredby law, the Will could be relied upon in any civil action, even withoutgetting it probated. (ii)Balbir Singh followed another decision of thiscourt in Nirmala Devi vs. Arun Kumar Gupta[6]. It was a case whereprobate proceedings were initiated in 1997 with respect to a Will of theyear 1984. A civil suit was already pending from 1987, but this Courtmerely ordered the transfer of the civil suit pending on the file of thesub-Judge to the Court of the District Judge where probate proceedingswere pending, so that both could be clubbed together and disposed of.

23. This Court did not consider or did not have an occasion toconsider in any of the above decisions, the difference between caseswhere a party is entitled to rely upon a Will in a judicial proceeding evenwithout getting probate/letters of administration and cases where there 6 (2005) 12 SCC 505

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Ais a bar for the production of a Will in a judicial proceeding without firstgetting probate/letters of administration. The primacy to be accorded toprobate proceedings would depend upon the category to which the casebelongs.

24. Having said that, let us now take a closer look at some of theBprovisions of the Indian Succession Act, 1925.

25. The Indian Succession Act, 1925 is divided into 11 parts, withsome of the parts sub-divided into several chapters. Part VI of the Actcomprising of 23 Chapters, contains exhaustive provisions relating to“Testamentary Succession”. Sections 57 to 191 of the Act are includedCin this Part.

26. Part IX of the Act contains Sections 217 to 369, divided into13 chapters. Chapter IV of Part IX contains provisions governing “thepractice in granting and revoking probates and letters ofadministration.” Sections 264 to 302 are found in this Chapter. TheDprocedure for making an application for probate or for letters ofadministration with the Will annexed, is provided in Section 276.

27. The District Judge is conferred with the jurisdiction to grantand revoke probates and letters of administration in all cases within hisDistrict, under Section 264 of the Act. Section 264 reads as follows:- E“264. Jurisdiction of District Judge in granting and revokingprobates, etc.— (1) The District Judge shall have jurisdictionin granting and revoking probates and letters ofadministration in all cases within his district.

(2) Except in cases to which section 57 applies, no Court inFany local area beyond the limits of the towns of Calcutta,Madras and Bombay, shall, where the deceased is a Hindu,Muhammadan, Buddhist, Sikh or Jaina or an exemptedperson, receive applications for probate or letters ofadministration until the State Government has, by anotification in the Official Gazette, authorised it so to do.”G

28. It may be seen from Sub-section (2) of Section 264, that itimposes a bar upon the Courts in any local area beyond the limits of thetowns of Calcutta, Madras and Bombay, from receiving applications forprobate or letters of administration, until the State Government, by anotification in the Official Gazette, authorized them so to do, whereverH

the deceased is a Hindu, Muhammadan, Buddhist, Sikh or Jaina or anexempted person. But the bar under Sub-section (2) has no applicationto cases, to which Section 57 applies.

29. Section 57 of the Act reads as follows:

“57. Application of certain provisions of Part to a class ofWills made by Hindus, etc.—The provisions of this Part whichare set out in Schedule III shall, subject to the restrictionsand 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 tothe Lieutenant-Governor of Bengal or within the local limitsof the ordinary original civil jurisdiction of the High Courtsof Judicature at Madras and Bombay; and (b) to all such Wills and codicils made outside those territoriesand limits so far as relates to immoveable property situatewithin 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, towhich those provisions are not applied by clauses (a) and(b):]

Provided that marriage shall not revoke any such Will orcodicil.”

30. Schedule III of the Act contains a list of provisions which areapplicable, subject to certain restrictions and modifications, to all theWills described in clauses (a), (b) and (c) of Section 57.

31. The jurisdiction conferred upon the District Judge in ChapterIV of Part IX, is also exercisable by the High Court, by virtue of theconcurrent jurisdiction conferred under Section 300. Section 300 readsas follows:

“300. Concurrent jurisdiction of High Court.—

(1) The High Court shall have concurrent jurisdiction withthe District Judge in the exercise of all the powers herebyconferred upon the District Judge.

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A(2) Except in cases to which section 57 applies, no High Court,in exercise of the concurrent jurisdiction hereby conferredover any local area beyond the limits of the towns of Calcutta,Madras and Bombay shall, where the deceased is a Hindu,Muhammadan, Buddhist, Sikh or Jaina or an exemptedperson, receive applications for probate or letters ofBadministration until the State Government has, by anotification in the Official Gazette, authorised it so to do.”The bar under sub-Section (2) of Section 264 is found also in sub-Section (2) of Section 300.

C32. Part VIII of the Act which is perhaps the smallest among theseveral parts of the Act, contains two important provisions in Sections212 and 213. They read as follows:

“212. Right to intestate’s property.—(1) No right to any partof the property of a person who has died intestate can beDestablished in any Court of Justice, unless letters ofadministration have first been granted by a Court of competentjurisdiction.

(2) This section shall not apply in the case of the intestacy ofa Hindu, Muhammadan, Buddhist, Sikh, Jaina, [IndianEChristian or Parsi].

213. Right as executor or legatee when established.—(1) Noright as executor or legatee can be established in any Courtof Justice, unless a Court of competent jurisdiction in [India]has granted probate of the Will under which the right isFclaimed, or has granted letters of administration with the Willor with a copy of an authenticated copy of the Will annexed.

(2) This section shall not apply in the case of Wills made byMuhammadans [or Indian Christians], or and shall onlyapply—

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(i) in the case of Wills made by any Hindu, Buddhist, Sikhor Jaina where such Wills are of the classes specifiedin clauses (a) and (b) of section 57; and

(ii) in the case of Wills made by any Parsi dying, after theHcommencement of the Indian Succession (Amendment)

Act, 1962 (16 of 1962), where such Wills are made withinthe 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, inso far as they relate to immoveable property situatedwithin those limits.]”

33. While Section 212 deals with the right to intestate’s property,Section 213 deals with the establishment of the right as executor orlegatee under a Will. In simple terms these two Rules can be stated asfollows: (i) without first obtaining letters of administration from a Courtof competent jurisdiction, no right to any property of a person other thana Hindu, Muhammadan, Buddhist, Sikh, Jaina, Indian Christian or Parsi,who has died intestate, can be established in any court of justice; (ii) noright as executor or legatee under a Will (other than a Will made by aMuhammadan or Indian Christian) can be established in any Court ofjustice unless probate of the Will or letters of administration with the Willannexed, has been granted by a court of competent jurisdiction.

34. But the second Rule stated above which is found in Section213, is applicable only: (i) in the case of Wills made by any Hindu, 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 Parsidying after the commencement of the Amendment Act 16 of 1962, ifsuch Wills are made within the local limits of the ordinary original civiljurisdiction of the High Courts at Calcutta, Madras and Bombay and incase such Wills have been made outside those limits, in so far as theyrelate to immovable property situate within those limits.

35. A cumulative reading of Sections 57, 213 and 264 would show:(i) that a person claiming to be an executor or legatee under a Willcannot rely upon the Will, in any proceeding before a Court of justice,unless he has obtained probate (if an executor has been appointed) orletters of administration with the Will annexed, if such a Will has beenexecuted by certain classes of persons; and (ii) that the jurisdiction togrant probate or letters of administration vests only in courts locatedwithin the towns of Calcutta, Madras or Bombay and the Courts in anylocal area notified by the State Government in the Official Gazette.

36. Therefore, what follows is that: (i) unless the testator belongsto any of the classes of persons specified in the Act; and (ii) unless the A

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AWill 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 anexecutor or a legatee under a Will to seek probate or letters ofadministration. In fact, the decision in Balbir Singh Wasu (supra) didnot take note of the bar under Section 264(2) when it opined in generalterms in Paragraph 5 of the judgment that “We do not read SectionB213 as prohibiting the executor for applying for probate as a matterof prudence or convenience to the courts in other parts of the countrynot covered by Section 213”.

37. By virtue of Section 213(2)(i) read with Clauses (a) and (b) ofSection 57, the mandatory requirement to seek probate or letters ofCadministration for establishing a right as executor or legatee under aWill, is applicable only to Wills made by a Hindu, Buddhist, Sikh or Jainawithin the local limits of the ordinary original civil jurisdiction ofcertain High Courts and to Wills made outside those territories, to theextent they cover immovable property situate within those territories.DTherefore, there is no prohibition for a person whose case falls outsidethe purview of these provisions, from producing, relying upon and claiminga right under a Will, in any proceeding instituted by others including theother legal heirs for partition or other reliefs.

38. In the case on hand, the petitioner Ravinder Nath himselfEproceeded (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 thebasis of the very same last Will and Testament dated 06.04.2011 of hisfather, without seeking letters of administration. He did not think thatSection 213(1) was a bar for him to establish his right as a legatee underFthe Will, without obtaining letters of administration.

39. After having done so, the petitioner in T.P (C) No.970 of 2016chose to file Testamentary Case No.01 of 2019 after 8 years of firstshooting a claim under the Will and that too after the vacation of the stayof further proceedings in the partition suit by order dated 09.10.2018.GTherefore, I cannot allow the petitioner in T.P (C) No. 970 of 2016 tomake this Court a fait accompli.

40. The partition suit, which is pending on the file of the DistrictCourt, Saket is actually 8 years old, as it was instituted on the file of theHigh Court of Delhi in September, 2012 and was transferred to the DistrictH

Court in 2016. The written statement in the said suit was filed by MajorRavinder Nath way back in November, 2012, when the suit was pendingin the High Court of Delhi as C.S No.2745 of 2012. In Paragraph 8g ofthe written statement, the petitioner has pleaded the execution of thedisputed Will. The true copy of the Will is stated to have been annexedas D-1/5, to the written statement. Therefore, obviously Major RavinderNath was convinced that there was no bar for him to establish his rightas a legatee under the will, even without first obtaining letters ofadministration. Hence, his subsequent act of filing a testamentary casebefore the High Court of Uttarakhand, is nothing but a ruse to takeadvantage of the general proposition of law that probate proceedingsare proceedings in rem and that they should have primacy. This argumentis 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 behalfof the petitioner in T.P (C) No.970 of 2016 that the partition suit shouldfollow the testamentary case, is liable to be rejected in the facts andcircumstances of this case.

41. In fact, the petitioner in T.P (C) No.970 of 2016 is not evenhelping himself by resorting to this. After having claimed way back inNovember, 2012 that there was a Will, he chose to file the testamentaryproceedings only in January 2019, overlooking Article 137 of the LimitationAct, 1963 and certain decisions of this Court. I am not going into thosedetails, as it may prejudice his case.

42. Relying upon the decision of this Court in Smt. RukmaniDevi and Others vs. Narendra Lal Gupta[7], it was contended by Mr.Manish Kumar, learned counsel for the petitioner, that by virtue of Proviso(b) of Section 273 of the Indian Succession Act, 1925, any letters ofadministration granted by the District Court, Saket cannot have effect inother States unless the value of the property affected by the grant andlocated beyond the limits of the State, does not exceed Rs.10,000/-.

43. But this argument is one of convenience. Nothing preventedthe petitioner from filing the testamentary proceedings in the High Courtof Delhi by taking advantage of Proviso (a) of Section 273 and seekingthe withdrawal of the suit for partition from the District Court, Saket tothe High Court to be tried together. Section 273 reads as follows:

7 (1985) 1 SCC 144

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A“273. Conclusiveness of probate or letters of administration.—Probate or letters of administration shall have effect over allthe property and estate, movable or immovable, of thedeceased, throughout the State in which the same is or aregranted, and shall be conclusive as to the representative titleagainst all debtors of the deceased, and all persons holdingBproperty which belongs to him, and shall afford full indemnityto all debtors, paying their debts and all persons deliveringup such property to the person to whom such probate or lettersof administration have been granted:

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(a) by a High Court, or

(b) by a District Judge, where the deceased at the time of hisdeath had a fixed place of abode situate within the jurisdictionof such Judge, and such Judge certifies that the value of theDproperty and estate affected beyond the limits of the Statedoes not exceed ten thousand rupees, shall, unless otherwise directed by the grant, have like effectthroughout the other States ETherefore, the petitioner, taking advantage of the pendency of thepartition suit from 2012 to 2016, could have filed the testamentaryproceeding in the High Court of Delhi itself and relied upon Proviso (a)of section 273, instead of now relying upon Proviso (b) of Section 273.

44. Having dealt with the legal contention, let me now move on toFthe factual basis on which transfer of the partition suit is sought. It isclaimed by the learned senior counsel for the petitioner that the petitioneris a senior citizen suffering from a host of health issues. The attestersare also not residents of Delhi. Therefore, he argued that at least theconvenience of the parties may have to be taken into account.

G45. But in these days of virtual hearings, the location of the partiesis hardly a matter of concern. In fact, an application in I.A.No.130939of 2020 has been moved by the petitioner, seeking a direction to examineone of the attesters either through video conferencing or through courtappointed commissioner, as he is 74 years of age, having a lot of medicalissues and has also tested positive for COVID-19.H

46. The very fact that even according to the petitioner, the attestercan be examined through video conference or court appointedcommissioner would show that the place where the proceedings arepending, is immaterial.

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47. The fact that 3 out of the surviving 5 children are citizens ofother countries residing out of India and that therefore they cannot haveany objection to the proceedings being tried in Uttarakhand, is notacceptable. It would have been open to the petitioner to raise such acontention, had he chosen to make the first strike by filing the testamentaryproceedings 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 DistrictCourt, 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, therelief sought therein is to transfer the testamentary case pending in theHigh Court of Uttarakhand to the District Court, Saket, Delhi. Since theWill set up by the petitioner covers properties located both in Nainitaland Delhi, both these courts have concurrent jurisdiction. But in view ofProviso (b) to Section 273, letters of administration granted by a DistrictCourt cannot have validity in respect of a property located outside theState, if its value exceeds Rs. 10,000/-. However, this problem can beresolved by ordering the transfer of the testamentary case to the HighCourt of Delhi and ordering the transfer of the partition suit from theDistrict Court, Saket back to the High Court of Delhi.

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49. Therefore, the Transfer Petitions are disposed of to thefollowing effect:-

(i) T.P (C) No.970 of 2016 is dismissed;

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(ii) T.P (C) No.2779 of 2019 is allowed and the TestamentaryCase No.01 of 2019 pending on the file of the High Courtof Uttarakhand is ordered to be transferred to the file ofthe High Court of Delhi;

(iii) The partition suit in C.S No. 126 of 2016 pending on the fileGof the Additional District Court, Saket at Delhi shall standtransferred to the High Court of Delhi and clubbed alongwith the testamentary proceeding and taken up togetherfor disposal. Considering that the partition suit is about 8years old, the High Court of Delhi may consider giving H

902SUPREME COURT REPORTS[2021] 3 S.C.R.

Apriority of listing. The parties are at liberty to moveapplications for examination of the witnesses including theattesters of the Will, either through Video Conference orthrough Court appointed Commissioners and applicationsfor such reliefs may be considered by the High Courtfavourably.B

(iv) The parties shall bear their respective costs.

Divya Pandey

Transfer petitions disposed of.

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