Whether a suit based on Will without probate is maintainable?
The
aforesaid aspect has remained an issue for a perpetual deliberation. The
probate of Will and Letter of Administration of a Will as per the provisions of
Indian Succession Act 1925 shall have to be obtained, for maintaining a suit or
a suit for partition suit based on probate is one school of thought, whereas
there are contrary opinion as well. It is more so relevant in the context of
Delhi and some other provinces, where obtaining probate of Will is optional.
What therefore follows is whether in Delhi, in this backdrop, a suit for
partition based on a Will could be maintained without a probate or Letter of
Administration?. The answer whether generic or in a particular reference to
Delhi shall have the answers from judicial precedents itself and the endeavour
herein is to find out the answer.
The Patna
High Court in Sushila
Devi Vs. Chandra Bhushan Chaudhary and Ors AIR 2019 Patna 51 has
succinctly dealt with the issue.
The factual matrix before Patna High
Court was that if a suit based on Will shall not be maintainable, because,
claim of the plaintiff was based on the 'Will' and unless the 'Will' is
probated, no person can claim any right before the court of law in view of the
bar under Section 213 of the Indian Succession Act, 1925?
The learned court
below did not dismiss the suit rather held that unless a probate is filed by
the plaintiff, no decree can be passed in favour of the plaintiff. The Patna
High Court was approached in revisional jurisdiction.
The Sub-section (1) of Section 213 of
the Indian Succession Act which is relevant for the purpose reads as follows:--
"213. Right as executor or legatee when
established--
(1) No right as executor
or legatee can be established in any Court of Justice, unless a Court of
competent jurisdiction in [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."
Thus, the Patna High Court has held that From a perusal of the provision aforesaid it
is apparent that no right as executor or legatee can be established in any
court of justice unless the 'Will' is probated by the competent court. In the
present case the 'Will' was not probated on the date of institution of the suit
as such the suit was itself incompetent.
It was though made clear that in the
event of grant of probate, the plaintiff in the suit may exercise his right
before the Civil Court by filing a fresh suit, if so advised.
|
The Supreme Court in recent judgment
captioned as Kanta Yadav Vs Om Prakash
Yadav & Ors Civil Appeal No. 5823 of 2019 has Dealt With the matter. |
|
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FACTS: The learned Single Bench of Delhi High Court had allowed an application
under Order 7 Rule 11 of the Code of Civil Procedure, 1908 holding that the
suit for declaration and permanent injunction is not maintainable in view of
Section 213 of the Indian Succession Act, 1925. The Division bench of Delhi
high court had set aside the order passed by ld Singe Judge. It may be noted that
the two suits were filed by parties having rival claims –one on the basis of
Will and the other on the basis of natural succession. The Division Bench of the High Court has held that the bar under section
213 of the Act is not applicable and, therefore, was pleased to set aside the
order of rejection of plaint and directed that both the suits be clubbed and
common evidence be led together. The Special Leave petition was thus filed before Supreme Court by the
aggrieved party and leave was granted and civil appeal was heard. The short question to be examined by
the Supreme Court was – whether it is necessary to seek probate or letter of
administration in respect of a Will in terms of Section 213 of the Act in the
National Capital Region of Delhi? What is significant in the context is that the National Capital Region Delhi as existed
today was earlier part of erstwhile State of Punjab prior to November 1,
1966. As such, Section 57 of the Indian Succession Act is applicable where the
properties and parties are situated in the territories of Bengal, Madras or Bombay,
therefore, it is not necessary to seek probate or letter of administration in
respect of properties or the persons when they are not located in the States
of Bengal, Madras or Bombay. To
examine the said question, Section 57 is relevant to quote hereunder: |
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Section 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; and
(b) to all such Wills and codicils
made outside those territories and limits so far as relates to immoveable
property situate within those territories or limits; and
(c) to all Wills and codicils madeby
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.
The Punjab & Haryana High Court and Delhi High Court had examined
the said aspect in a matter reported as Ram Chand v. Sardara
Singh & Ors AIR 1962P&H 382, the Punjab High Court held as under:
“4. …The clear effect of these
provisions appears to be that the provisions of section 213(1) requiring
probate do not apply to wills made outside Bengal and the local original
jurisdictional limits of the High Courts at Madras and Bombay except where such
wills relate to immovable property situated within those territories.
6. As I have said the clear reading of the provisions of the
Act leave no doubt whatever that no probate is necessary in order to set up a
claim regarding property either movable or immovable on the basis of a will
executed in the Punjab and not relating to property situated in the territories
mentioned in section 57(a). I accordingly accept the revision petition and set
aside the order of the lower Court requiring the petitioner to obtain probate.
The matter may now be disposed of by the lower Court, where the parties have
been directed to appear on the 4th of December, 1961. The parties will bear
their own costs in this Court.”
The said view was affirmed by the Division Bench
of Punjab and Haryana High Court in M/s. Behari Lal Ram Charan v.
Karam Chand Sahni & Ors 1968 AIR (Punjab) 108 it
is held by the Division bench that section 57 read with section 213(2) from the bare perusal of the two sections shall
apply to those cases where the properties and parties are situated in the
territories of Bengal, Madras and Bombay , whereas clause (b) applies
to those cases where the parties are not residing in those territories but the
property involved is situate within those territories. Therefore, where both
the person and property of any Hindu, Budhist, Sikh or Jaina, are situated outside
the territories mentioned above, the rigour of section 213, sub-section (1), is
not attracted.
In
Mrs. Winifred Nora Theophilus v. Mr. Lila Deane & Ors.
AIR 2002 Delhi 6 , 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 of Bengal or within the local limits of ordinary,
original civil jurisdiction of High Courts of Judicature at Madras and Bombay or even made outside
but relating to immovable property within the aforesaid territories that
embargo contained in Section 213 shall apply. From this it stands concluded that
if will is made by Hindu, Buddhist, Sikh or Jaina outside Bengal, Madras or
Bombay then embargo contained in Section 213 shall not apply. This is what the
various judgments cited by the learned counsel for the defendants
decide. Therefore, there is no problem in arriving at the conclusion that if
the will is made in Delhi relating to immovable property in Delhi by Hindu,
Buddhist, Sikh or Jaina, no probate is required.”
The Supreme Court in Clarence Pais &
Ors. v. Union of India (2001) 4 SCC 325 had occasion to deal
with the issue, wherein, validity of Section 213 of the Act was challenged as
unconstitutional and discriminatory against the Christians. The Supreme Court
held as under:
“6.…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.”
The Supreme Court in Kanta
Yadav (Supra) has therefore held as under:
12) The statutory provisions are clear
that the Act is applicable to Wills and codicils made by any Hindu, Buddhist,
Sikh or Jain, who were subject to the jurisdiction of the Lieutenant-Governor
of Bengal or within the local limits of the ordinary original civil
jurisdiction of the High Courts of Madras or Bombay-{clause (a)of Section 57 of
the Act}. Secondly, it is applicable to
all Wills and codicils made outside those territories and limits so far as
relates to immoveable property within the territories aforementioned-Clause (b)
of Section 57. The clause (c) of Section 57 of 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 provisions are not applied by clauses (a) and
(b).However, sub-section (2) of Section 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) or (b) of Section 57.
Thus, clause (c) is not applicable in view of Section 213(2) of the Act”.
“13) In view thereof, the Wills and codicils in respect
of the persons who are subject to the Lieutenant-Governor of Bengal or who are
within the local limits of ordinary original civil jurisdiction of High Court
of Madras or Bombay and in respect of the immoveable properties situated in the
above three areas. Such is the view
taken in the number of judgments referred to above in the States of Punjab and
Haryana as well as in Delhi as also by this Court in Clarence Pais.”
REMARK
What emerges therefore, from the aforesaid
discussion is that so far as National Capital Territory of Delhi is concerned,
seeking probate of Will is not necessary and any suit based on Will shall be
maintainable. However, probate of the Will if obtained, being judgment in rem and hence shall be
applicable to all shall conclusively deal with the veracity of the Will. The
probate of Will or Letter to Administration, of course does not decide the title
of the property under Will, but the veracity of Will on the touchstone of law
is decided. Therefore, if probate is obtained and if thereafter, say, a suit
for partition is filed, the fact that Will is already tested on the touchstone
of law, the decision in the suit for partition or such other suit shall be
prevented from many hassles in the course of proceedings. Moreover, a Will in
itself may contain several criteria and also takes note of contingency in order
to make it applicable and if suit of partition or declaration is filed without obtaining
probate, parties to the lis shall have to face some roadblock in the course of adjudications.
The probate or letter of administration, as the case may be, therefore, shall
aid to conclude the matter effectively, if probate is obtained before seeking
its further adjudication on other aspects including enforcement by way of a suit.
The mandate of law, notwithstanding, however, in vast majority of cases, the law
in abstract may not aid the parties to the lis, in as much as, apart from contrary
judgments enunciated earlier in the aforesaid context and though, it appears to
be settled a great deal now, still, in a suit like partition ascertaining shares
as per Will and passing preliminary decree followed with final decree shall be difficult,
unless probate of Will or Letter of Administration as the case may be is
obtained.
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Anil K Khaware
Founder
& Senior Associate
Societylawandjustice.com
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