KANTA YADAV versus OM PRAKASH YADAV & ORS. on 24 July 2019

790

[2019] 9 S.C.R. 790

SUPREME COURT REPORTS

[2019] 9 S.C.R.

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KANTA YADAV

v.

OM PRAKASH YADAV & ORS.

(Civil Appeal No. 5823 of 2019)

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JULY 24, 2019

[L. NAGESWARA RAO AND HEMANT GUPTA, JJ.]

Indian Succession Act, 1925 – ss.57, 213 – One ‘ZS’ ownedcertain immoveable property in New Delhi – He executed Will dtd.June 16, 1985 and codicil dtd. Oct. 21, 1995 bequeathing self-Cacquired property in favour of both the parties – ‘ZS’ died – Twosuits filed – One by the respondents inter alia claiming permanentinjunction in respect of the Will and codicil executed by ‘ZS’ andalso will dtd. June 18, 2009 executed by the wife of ‘ZS’ –Other suitfiled by the appellant claiming natural succession – Division BenchDof the High Court held that the bar u/s.213 is not applicable andset aside the order of rejection of plaint directing that both the suitsbe clubbed and common evidence be led together – Issue as towhether it is necessary to seek probate or letter of administration inrespect of a Will in terms of s.213 in the National Capital Region ofDelhi – Held: Present National Capital Region Delhi was part ofEerstwhile State of Punjab prior to Nov. 1, 1966 – Statutory provisionsare clear that the 1925 Act is applicable to Wills and codicils madeby any Hindu, Buddhist, Sikh or Jain, who were subject to thejurisdiction of the Lieutenant-Governor of Bengal or within the locallimits of the ordinary original civil jurisdiction of the High CourtsFof Madras or Bombay [Clause (a) of s.57 ] – Secondly, it isapplicable to all Wills and codicils made outside those territoriesand limits so far as relates to immoveable property within theterritories aforementioned- [Clause (b) of s.57] – Clause (c) of s.57inter alia relates to the Wills and codicils made by any Hindu, Buddhist,Sikh or Jain on or after the first day of Jan. 1927, to whichGprovisions are not applied by clauses (a) and (b) – However, sub-sec. (2) of s.213 applies only to Wills made by Hindu, Buddhist,Sikh or Jain where such Wills are of the classes specified in clauses(a) or (b) of s.57 – Thus, clause (c) is not applicable in view of H

s.213(2) – No error in the judgment passed by the Division Benchof the High Court – Code of Civil Procedure, 1908 – Or. 7, r.11.

Dismissing the appeal, the Court

HELD: 1. The statutory provisions are clear that the IndianSuccession Act, 1925 is applicable to Wills and codicils made byany Hindu, Buddhist, Sikh or Jain, who were subject to thejurisdiction of the Lieutenant-Governor of Bengal or within thelocal limits of the ordinary original civil jurisdiction of the HighCourts of Madras or Bombay - {clause (a) of Section 57 of theAct}. Secondly, it is applicable to all Wills and codicils madeoutside those territories and limits so far as relates to immoveableproperty within the territories aforementioned - Clause (b) ofSection 57. The clause (c) of Section 57 of the Act relates to theWills and codicils made by any Hindu, Buddhist, Sikh or Jain onor after the first day of January, 1927, to which provisions are notapplied by clauses (a) and (b). However, sub-section (2) of Section213 of the Act applies only to Wills made by Hindu, Buddhist,Sikh or Jain where such Wills are of the classes specified in clauses(a) or (b) of Section 57. Thus, clause (c) is not applicable in viewof Section 213(2) of the Act. In view thereof, the Wills and codicilsin respect of the persons who are subject to the Lieutenant-Governor of Bengal or who are within the local limits of ordinaryoriginal civil jurisdiction of High Court of Madras or Bombayand in respect of the immoveable properties situated in the abovethree areas. Such is the view taken in the number of judgmentsreferred to above in the States of Punjab and Haryana as well asin Delhi as also by Supreme Court in Clarence Pais. No error inthe judgment passed by the Division Bench of the High Court.[Paras 12-14] [797-G-H; 798-A-E]

Clarence Pais & Ors. v. Union of India (2001) 4 SCC325 : [2001] 2 SCR 43 – relied on.

Ram Chand v. Sardara Singh & Ors. AIR 1962 P&H382 ; M/s. Behari Lal Ram Charan v. Karam ChandSahni & Ors. 1968 AIR (Punjab) 108 ; Mrs. WinifredNora Theophilus v. Mr. Lila Deane & Ors. AIR 2002Delhi 6 ; Shri Rajan Suri & Anr. v. The State & Anr.AIR 2006 Delhi 48 – referred to.

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CIVIL APPELLATE JURISDICTION : Civil Appeal No. 5823of 2019.

CFrom the Judgment and Order dated 13.02.2017 of the High Courtof Delhi at New Delhi in RFA (OS) No. 35 of 2016.

Jugal Wadhwa, Rishabh Wadhwa, Chirag Joshi, Ghanshyam Joshi,Advs. for the Appellant.

Syed Hasan Isfahani, Anup Jain, Ms. Mahima Gupta, Vivek Jain,DAdvs. for the Respondents.

The Judgment of the Court was delivered by HEMANT GUPTA, J. 1. Leave granted.

2. Challenge in the present appeal is to an order passed by theEDivision Bench of Delhi High Court on February 13, 2017 whereby anintra court appeal against the order dated March 14, 2016 passed by thelearned Single Bench was accepted. The learned Single Bench allowedan application under Order 7 Rule 11 of the Code of Civil Procedure,1908 holding that the suit for declaration and permanent injunction is notmaintainable in view of Section 213 of the Indian Succession Act, 1925[1].F

3. The brief facts leading to the present appeal are that oneZorawar Singh was owner of certain immoveable property in New Delhi.He executed a Will dated June 16, 1985 and codicil dated October 21,1995 bequeathing a self-acquired property in favour of both the parties.Zorawar Singh died on January 4, 1986. Two suits came to be filed; oneGby the present respondents bearing CS (OS) No. 3310 of 2012 claimingdeclaration and permanent injunction in respect of the Will and codicilexecuted by Zorawar Singh and also will dated June 18, 2009 executedby Smt. Ram Pyari, wife of Zorawar Singh; and the other suit filed by the present appellant bearing CS (OS) No. 430 of 2012 claiming naturalsuccession.

4. The Division Bench of the High Court held that the bar underSection 213 of the Act is not applicable and, therefore, set aside theorder of rejection of plaint and directed that both the suits be clubbedand common evidence be led together.

5. The short question to be examined is whether it is necessary toseek probate or letter of administration in respect of a Will in terms ofSection 213 of the Act in the National Capital Region of Delhi.

6. It is undisputed that the present National Capital Region Delhiwas part of erstwhile State of Punjab prior to November 1, 1966. Theargument raised by the respondents is that Section 57 of the Act isapplicable where the properties and parties are situated in the territoriesof Bengal, Madras or Bombay, therefore, it is not necessary to seekprobate or letter of administration in respect of properties or the personswhen they are not located in the States of Bengal, Madras or Bombay.To examine the said question, certain statutory provisions are relevant toquote hereunder:

“Section 213 - Right as executor or legatee whenestablished.-(1) No right as executor or legatee can be establishedin any Court of Justice, unless a Court of competent jurisdiction inIndia has granted probate of the Will under which the right isclaimed, or has granted letters of administration with the Will orwith a copy of an authenticated copy of the Will annexed.

(2) This section shall not apply in the case of Wills made byMuhammadans, and shall only apply-

(i) in the case of Wills made by any Hindu, Buddhist, Sikh or Jainawhere 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 thecommencement of the Indian Succession (Amendment) Act, 1962(16 of 1962.) where such Wills are made within the local limits ofthe [ordinary original civil jurisdiction] of the High Courts atCalcutta, Madras and Bombay, and where such Wills are madeoutside those limits, in so far as they relate to immovable propertysituated within those limits.]

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Section 57 – Application of certain provisions of Part to aclass of Wills made by Hindus, etc. - The provisions of thisPart which are 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 orBJaina on or after the first day of September, 1870, within theterritories which at the said date were subject to the Lieutenant-Governor of Bengal or within the local limits of the ordinary originalcivil jurisdiction of the High Courts of Judicature at Madras andBombay; and (b) to all such Wills and codicils made outside those territories andlimits so far as relates to immoveable property situate within thoseterritories or limits; and C

(c) to all Wills and codicils made by any Hindu, Buddhist, Sikh orJaina on or after the first day of January, 1927, to which thoseDprovisions are not applied by clauses (a) and (b):

Provided that marriage shall not revoke any such Will or codicil.”

7. The said provisions have been examined and come up forconsideration time and again before the Punjab and Haryana High Courtand Delhi High Court. In Ram Chand v. Sardara Singh & Ors.[2], theEPunjab High Court held as under:

“4. …The clear effect of these provisions appears to be that theprovisions of section 213(1) requiring probate do not apply to willsmade outside Bengal and the local original jurisdictional limits ofthe High Courts at Madras and Bombay except where such willsFrelate to immovable property situated within those territories.

5. There remains to be considered the decision of ShamsherBahadur, J., in the case mentioned above, which is apparentlybased on the decision of a Full Bench in GanshamdossNarayandoss v. Gulab Bi Bai, [ I.L.R. 50 Mad. 927.] . I find,Ghowever, on perusing this judgment that what has been held isthat a defendant resisting a claim made by the plaintiff as heir-at-law cannot rely in defence on a will executed in his favour atMadras in respect of property situate in Madras, when the will isnot probated and no letters of administration with the will annexed have been granted. This is clearly in accordance with the provisionsof sections 213 and 57(a) of the Act, and the only point on whichthe matter was referred to the Full Bench was whether a willcould be set up in defence in a suit without probate.

6. As I have said the clear reading of the provisions of the Actleave no doubt whatever that no probate is necessary in order toset up a claim regarding property either movable or immovable onthe basis of a will executed in the Punjab and not relating toproperty situated in the territories mentioned in section 57(a). Iaccordingly accept the revision petition and set aside the order ofthe lower Court requiring the petitioner to obtain probate. Thematter may now be disposed of by the lower Court, where theparties have been directed to appear on the 4th of December,1961. The parties will bear their own costs in this Court.”

8. The said view was affirmed by the Division Bench of Punjaband Haryana High Court in M/s. Behari Lal Ram Charan v. KaramChand Sahni & Ors.[3]:

“3. From a bare perusal of these two sections it is apparent thatthe objection of defendant No. 1 on the preliminary issue raisedby him in the trial Court was without any substance. Clause (a) ofsection 57 read with sub-section (2) of section 213, it would appear,applies to those cases where the property and parties are situatein the territories of Bengal, Madras and Bombay, while clause (b)applies to those cases where the parties are not residing in thoseterritories but the property involved is situate within those territories.Clause (c) of section 57, however, is not relevant for the presentpurposes. Therefore, where both the person and property of anyHindu, Budhist, Sikh or Jaina, are outside the territories mentionedabove, the rigour of section 213, sub-section (1), is not attracted.Reference was made by the learned referring Judge to a decisionof the Supreme Court in Mrs. Hem Nolini v. Mrs. IsolveSarojbashini Bose, AIR 1962 Supreme Court 1471, but theparties in that case were Christians (to whom it is agreed section57 does not apply) and their Lordships only considered theimplications of sub-section (1) of section 213 of the Act and notof sub-section (2) of that section read with section 57 clauses (a)and (b). The learned Single Judge probably felt the difficulty 3 1968 AIR (Punjab) 108

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Abecause of the view taken by Shamsher Bahadur, J. In KesarSingh and others v. Tej Kaur, 1961 P.L.R. 473, but that judgmentwas considered by Falshaw, J. (as he then was) in RamChand v. Sardara Singh, 1962 P.L.R. 265, who differed fromthe view taken by Shamsher Bahadur, J., in the above-mentionedcase, holding that no probate was necessary in order to set up aBclaim regarding property either movable or immovable on the basisof a will executed in the Punjab and a succession certificate couldbe granted on the ground of a will without obtaining probate. Whilereferring to the decision of Shamsher Bahadur, J., in Kesar Singh’scase, Falshaw, J., observed that the view taken by ShamsherCBahadur, J., was apparently based on the decision of a Full Benchin Ganshomdass v. Gulab Bi Rai, ILR 50 Madras 927 where itwas held that a defendant resisting a claim made by the plaintiffas heir-at-law could not rely in defence on a will executed in hisfavour at Madras in respect of property situate in Madras, whenthe will was not probated and no letters of administration with theDwill annexed had been granted. The Madras case was clearly inaccordance with section 213 read with section 57 of the Act. Weagree with the view taken by Falshaw, J., in Ram Chand’s case.A similar view was expressed by Jai Lal, J., in SohanSingh v. Bhag Singh, AIR 1934 Lahore 599, and by me in C.R.E340-D/1965 (Radhe Lal v. Ladli Parshad) decided on 24thAugust, 1965. Even a cursory glance at sections 213 and 57 ofthe Act leaves no room for doubt that the view taken by ShamsherBahadur, J., in the case mentioned above was erroneous. It appearsthat the case of Sohan Singh v. Bhag Singh (supra), referredto above, was not brought to his notice.”F

9. In Mrs. Winifred Nora Theophilus v. Mr. Lila Deane &Ors.[4], a Single Bench of Delhi High Court held as under:

“11. On interpretation of Section 213 read with Section 57 (a) and(b), the Courts have opined that where the will is made by Hindu,Buddhist, Sikh and Jaina and were subject to the Lt. Governor ofBengal or within the local limits of ordinary, original civil jurisdictionof High Courts of Judicature at Madras and Bombay or evenmade outside but relating to immovable property within theaforesaid territories that embargo contained in Section 213 shall G

H4 AIR 2002 Delhi 6

apply. From this it stands concluded that if will is made by Hindu,Buddhist, Sikh or Jaina outside Bengal, Madras or Bombay thenembargo contained in Section 213 shall not apply. This is what thevarious judgments cited by the learned counsel for the defendantsdecide. Therefore, there is no problem in arriving at the conclusionthat if the will is made in Delhi relating to immovable property inDelhi by Hindu, Buddhist, Sikh or Jaina, no probate is required.”

10. The Division Bench of Delhi High Court in Shri Rajan Suri& Anr. v. The State & Anr.[5] referred to the Division Bench judgment inBehari Lal’s case and certain other Single Bench judgments of DelhiHigh Court to conclude as under:

“33. The result of the aforesaid is that complete line of judgmentreferred by the learned counsel for the petitioner in support of thesubmission that probate is mandatory would have no applicationto the facts of the present case and thus findings arrived at in thecollateral proceedings in the suit to which the petitioners wereparties would bind the petitioners.”

11. Learned counsel for the respondents also referred to theSupreme Court judgment in Clarence Pais & Ors. v. Union of India[6]wherein, validity of Section 213 of the Act was challenged asunconstitutional and discriminatory against the Christians. This Courtheld as under:

“6. … A combined reading of Sections 213 and 57 of the Actwould show that where the parties to the will are Hindus or theproperties in dispute are not in territories falling under Sections57(a) and (b), sub-section (2) of Section 213 of the Act appliesand sub-section (1) has no application. As a consequence, a probatewill not be required to be obtained by a Hindu in respect of a willmade outside those territories or regarding the immovableproperties situate outside those territories. The result is that thecontention put forth on behalf of the petitioners that Section 213(1)of the Act is applicable only to Christians and not to any otherreligion is not correct.”

12. The statutory provisions are clear that the Act is applicable toWills and codicils made by any Hindu, Buddhist, Sikh or Jain, who were 5 AIR 2006 Delhi 48

6 (2001) 4 SCC 325

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Asubject to the jurisdiction of the Lieutenant-Governor of Bengal or withinthe local limits of the ordinary original civil jurisdiction of the High Courtsof Madras or Bombay - {clause (a) of Section 57 of the Act}. Secondly,it is applicable to all Wills and codicils made outside those territories andlimits so far as relates to immoveable property within the territoriesaforementioned - Clause (b) of Section 57. The clause (c) of Section 57Bof the Act relates to the Wills and codicils made by any Hindu, Buddhist,Sikh or Jain on or after the first day of January, 1927, to which provisionsare not applied by clauses (a) and (b). However, sub-section (2) ofSection 213 of the Act applies only to Wills made by Hindu, Buddhist,Sikh or Jain where such Wills are of the classes specified in clauses (a)Cor (b) of Section 57. Thus, clause (c) is not applicable in view of Section213(2) of the Act.

13. In view thereof, the Wills and codicils in respect of the personswho are subject to the Lieutenant-Governor of Bengal or who are withinthe local limits of ordinary original civil jurisdiction of High Court ofDMadras or Bombay and in respect of the immoveable properties situatedin the above three areas. Such is the view taken in the number ofjudgments referred to above in the States of Punjab and Haryana aswell as in Delhi as also by this Court in Clarence Pais.

14. In view of the above, we do not find any error in the judgmentEpassed by the Division Bench of the Delhi High Court. Consequently,the appeal is dismissed.

Divya Pandey

Appeal dismissed.

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