civil
suit is maintainable in respect of a Will? or it will be hit by Section 213 of ISA
Often,
it was felt earlier that a civil suit for declaration and permanent injunction shall
not lie in respect of a Will, and the only option shall be to prefer a petition
for seeking a probate, or Letter of Administration to a Will, in view of
provisions contained in section 213 of Indian Succession act 1925( In short
“ISA”). The courts of law has also been rejecting suit civil suits on the touchstone
of order VII Rule 11 (d) of Code of
Civil Procedure (In short “CPC”) as it was
perceived that there is a clear embargo cast in view of section 213 of ISA 1925
and hence the suit shall not be maintainable and hence, such plaints were being
rejected with impunity taking note of the principles of Order VII Rule 11 0f
CPC. The understanding or so to say the illusion
probably stemmed from the fact that the probate petition shall not be a plaint and
the only option available to a party to the lis involving a Will is to prefer a
petition for probate or Letter of Administration. Is it so? No, in fact, no
longer. Though, the ld Single Judge of Delhi High Court has also held earlier
that suit for declaration and permanent injunction shall not lie for matters relating
to Will and the plaint was therefore rej3ected as per the provisions as
contained under Order VII Rule 11 of CPC and it was held that a civil suit for declaration,
permanent injunction shall not be maintainable, in a testamentary case. The judgment
of ld single judge, however, was set aside by the hon’ble Division bench of
Delhi High Court in a intra court appeal and the judgment of the division bench
is upheld by the hon’ble Supreme Court of India. However, given the
significance of the matter and also the fact that ambivalence had persisted for
quite an inordinate length of time, hence, the discussion to trace out the
nuances of the issues shall necessitate discussion and that follows in the
analysis hereinafter.
Through
the Division bench of Delhi High Court, the matter as discussed above, captioned
as Kanta Yadav Vs Om Prakash Yadav & Ors had travelled to the
Supreme Court through SLP (Civil) 19096
of 2017 and that was converted into a Civil Appeal bearing No. 5823 of 2019.The
ld Single judge had held that the suit for declaration and permanent injunction
is not maintainable in view of Section 213 of ISA 1925 and as stated it was set
aside by the division bench and order of Division bench was affirmed by the
Supreme Court.
Brief Facts
(1)
One Zorawar Singh was owner of certain immoveable property in New Delhi. He executed a Will dated June 16, 1985 and
codicil dated October 21, 1985 bequeathing a self-acquired property in favour
of both the parties. Zorawar Singh died
on January 4, 1986.
(2)
Two suits came to be filed; one by the present respondents bearing CS (OS) No.
3310 of 2012 claiming declaration and permanent injunction in respect of the
Will and codicil executed by Zorawar Singh and also Will dated June 18, 2009
executed by Smt. Ram Pyari, wife of Zorawar Singh; and
The
other suit filed by the present appellant bearing CS (OS) No. 430 of 2012 claiming
natural succession.
(3)
The Division Bench of the Delhi High Court held that the bar under Section 213
of the Act is not applicable and, therefore, set aside the order of rejection
of plaint and directed that both the suits be clubbed and common evidence be
led together.
The
short question that arose to be probed is as to 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?
The
present National Capital Region Delhi was part of erstwhile State of Punjab
prior to November 1, 1966. As per the respondents Section 57 of the ISA 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.
Certain
statutory provisions are relevant to analyse the issue further.
“Section
213- Right as executor or legatee when established-
(1)
No right as executor or legatee can be established in any Court of Justice,
unless a Court of competent jurisdiction in India has granted probate of the
Will under which the right is claimed, or has granted letters of administration
with the Will or with a copy of an authenticated copy of the Will annexed.
(2)
This section shall not apply in the case of Wills made by Muhammadans, and
shall only apply-
(i)
in the case of Wills made by any Hindu, Buddhist, Sikh or Jaina where such
Wills are of the classes specified in clauses (a) and (b) of section 57; and
(ii)
in the case of Wills made by any Parsi dying, after the commencement of the
Indian Succession (Amendment) Act, 1962(16 of 1962.) where such Wills are made
within the local limits of the [ordinary original civil jurisdiction] of the
High Courts at Calcutta, Madras and Bombay, and where such Wills are made
outside those limits, in so far as they relate to immovable property situated within
those limits.]
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 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.”
The
above provisions have been examined before the Punjab and Haryana High Court
and Delhi High Court. In Ram Chand
v. Sardara Singh & Ors. AIR 1962 P&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.
5.
There remains to be considered the decision of Shamsher Bahadur, J., in the
case mentioned above, which is apparently based on the decision of a Full Bench
in Ganshamdoss Narayandossv.Gulab Bi Bai, [ I.L.R. 50 Mad. 927.] .I
find, however, on perusing this judgment that what has been held is that a
defendant resisting a claim made by the plaintiff as heir-at-law cannot rely in
defence on a will executed in his favour at Madras in respect of property
situate in Madras, when the will is not probated and no letters of
administration with the will annexed have been granted. This is clearly in
accordance with the provisions of sections 213 and 57(a) of the Act, and the
only point on which the matter was referred to the Full Bench was whether a
will could be set up in defence in a suit without probate.
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
aforesaid 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:
“3. From a bare perusal of these two sections, it
is apparent that the objection of defendant No. 1 on the preliminary issue raised
by him in the trial Court was without any substance. Clause (a) of section 57
read with sub-section (2) of section 213, it would appear, applies to those
cases where the property and parties are situate in the territories of Bengal,
Madras and Bombay, while clause (b) applies to those cases where the parties
are not residing in those territories but the property involved is situate
within those territories. Clause (c) of section 57, however, is not relevant
for the present purposes. Therefore, where both the person and property of any
Hindu, Budhist, Sikh or Jaina, are outside the territories mentioned above, the
rigour of section 213, sub-section (1), is not attracted. Reference was made by
the learned referring Judge toa decision of the Supreme Court in Mrs. Hem
Noliniv.Mrs. Isolve Sarojbashini Bose, AIR 1962 Supreme Court 1471, but
the parties in that case were Christians (to whom it is agreed section 57 does
not apply) and their Lordships only considered the implications of sub-section
(1) of section 213 of the Act and not of sub-section (2) of that section read
with section 57 clauses (a) and (b). The learned Single Judge probably felt the
difficulty because of the view taken by Shamsher Bahadur, J. In Kesar Singh
and othersv.Tej Kaur, 1961 P.L.R. 473, but that judgment was
considered by Falshaw, J. (as he then was) in Ram Chandv. Sardara
Singh, 1962 P.L.R. 265, who differed from the view taken by Shamsher
Bahadur, J., in the above-mentioned case, holding that no probate was 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 a succession certificate could
be granted on the ground of a will without obtaining probate. While referring
to the decision of Shamsher Bahadur, J., in Kesar Singh's case, Falshaw,
J., observed that the view taken by Shamsher Bahadur, J., was apparently based
on the decision of a Full Bench in Ganshom dass v.Gulab Bi Rai, ILR
50 Madras 927 where it was held that a defendant resisting a claim made by
the plaintiff as heir-at-law could not rely in defence on a will executed in
his favour at Madras in respect of property situate in Madras, when the will
was not probated and no letters of administration with the will annexed had
been granted. TheMadras case was clearly in accordance with section 213
read with section 57 of the Act. We agree with the view taken by Falshaw, J.,
in Ram Chand's case. A similar view was expressed by Jai Lal, J., in Sohan
Singh v. Bhag Singh, AIR1934 Lahore 599, and by me in C.R.
340-D/1965 (Radhe Lal v. Ladli Parshad) decided on 24th August,
1965. Even a cursory glance at sections 213 and 57 of the Act leaves no room
for doubt that the view taken by Shamsher Bahadur, J., in the case mentioned
above was erroneous. It appears that the case of Sohan Singh v. Bhag
Singh (supra), referred to above, was not brought to his notice.”
A
single bench of Delhi High Court 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.”
Yet
again a Division Bench of Delhi High Court in Shri Rajan Suri & Anr. v.
The State & Anr. AIR 2006 Delhi 48 referred to the Division Bench judgment in Behari
Lal’s case and certain other Single Bench judgments of Delhi High Court
to conclude as under:
“33.The result of the
aforesaid is that complete line of judgment referred by the learned counsel for
the petitioner in support of the submission that probate is mandatory would
have no application to the facts of the present case and thus findings arrived
at in the collateral proceedings in the suit to which the petitioners were
parties would bind the petitioners.”
Reliance
was further placed on the Supreme Court judgment in Clarence Pais &
Ors. v. Unionof India (2001) 4 SCC 325, 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.”
It
is also held in Clarence Pais (Supra) that:
5. The scope of
Section 213(1) of the Indian Succession Act, 1925 is that it prohibits
recognition of rights as an executor or a legatee under a Will without
production of a probate and sets down a rule of evidence and forms really a
part of procedural requirement of the law. Section 213(2) of the Act indicates
that its applicability is limited to cases of persons mentioned therein. The
bar that is imposed by this Section is only in respect of the establishment of
the right as an executor or a 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 Tribunal. The Section is a bar to everyone claiming
under a Will, whether as plaintiff or defendant, if no probate or Letters of
Administration is granted. The effect of Section 213(2) of the Act is that the
requirement of probate or other representation mentioned in sub-section (1) for
the purpose of establishing the right as an executor or a 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”.
The
Supreme Court in Kanta Yadav (Supra) has 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 (Supra).
The
Supreme Court, while analysing the various judicial precedents as narrated above
have conclusively set out that the trap of section 213 of the ISA 1925 shall
not preclude filing of a civil suit for declaration and permanent injunction in
respect of Will, after having probed threadbare the provisions as contained in section
213 and section 57 of ISA 1925, particularly , in respect of areas where
probate is not compulsory. This follows thus that there is no bar to preferring
a suit for declaration and permanent injunction in respect of a Will and the
rejection of plaint held to be erroneous in view of prescriptions as laid down
in Section 213 and section 57 of Indian Succession Act 1925.
-----
Anil K Khaware
Founder & Senior Associate
Societylawandjustice.com
.
No comments:
Post a Comment