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Kanta Yadav vs Om Prakash Yadav on 24 July, 2019

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 5823 OF 2019
(ARISING OUT OF SLP (CIVIL) NO. 19096 OF 2017)

KANTA YADAV …..APPELLANT(S)

VERSUS

OM PRAKASH YADAV ORS. …..RESPONDENT(S)

JUDGMENT

HEMANT GUPTA, J.

Leave granted.

2) Challenge in the present appeal is to an order passed by the

Division Bench of Delhi High Court on February 13, 2017 whereby

an intra court appeal against the order dated March 14, 2016

passed by the learned Single Bench was accepted. The learned

Single Bench 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, 19251.

1 for short, ‘Act’

Page 1 of 9

3) The brief facts leading to the present appeal are that 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,

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; 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.

4) The Division Bench of the 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.

5) The short question to be examined is 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.

6) It is undisputed that the present National Capital Region Delhi was

part of erstwhile State of Punjab prior to November 1, 1966. The

argument raised by the respondents is that Section 57 of the Act is

applicable where the properties and parties are situated in the

Page 2 of 9
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,

certain statutory provisions are relevant to quote hereunder:

“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 SectionIndian 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

Page 3 of 9
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.”

7) The said provisions have been examined and come up for

consideration time and again before the Punjab and Haryana High

Court and Delhi High Court. SectionIn Ram Chand v. Sardara Singh

Ors.2, the Punjab High Court held as under:

“4. …The clear effect of these provisions appears to
be that the provisions of Sectionsection 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 SectionGanshamdoss Narayandoss v. 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 Sectionsections 213 and Section57(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.

2 AIR 1962 PH 382

Page 4 of 9

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 Sectionsection 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.”

8) The said view was affirmed by the Division Bench of Punjab and

Haryana High Court in SectionM/s. Behari Lal Ram Charan v. Karam

Chand Sahni Ors.3:

“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 Sectionsection 57 read
with sub-section (2) of Sectionsection 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 Sectionsection 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
Sectionsection 213, sub-section (1), is not attracted. Reference
was made by the learned referring Judge to a decision of
the Supreme Court in SectionMrs. Hem Nolini v. Mrs. Isolve
Sarojbashini Bose, AIR 1962 Supreme Court 1471, but
the parties in that case were Christians (to whom it is
agreed Sectionsection 57 does not apply) and their Lordships
only considered the implications of sub-section (1) of
Sectionsection 213 of the Act and not of sub-section (2) of that
section read with Sectionsection 57 clauses (a) and (b). The
learned Single Judge probably felt the difficulty because

3 1968 AIR (Punjab) 108

Page 5 of 9
of the view taken by SectionShamsher Bahadur, J. In Kesar
Singh and others v. Tej Kaur, 1961 P.L.R. 473, but that
judgment was considered by Falshaw, J. (as he then
was) in SectionRam Chand v. 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 Ganshomdass 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. The Madras case was
clearly in accordance with Sectionsection 213 read with Sectionsection
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 SectionSohan Singh v. Bhag Singh, AIR 1934
Lahore 599, and by me in C.R. 340-D/1965 (SectionRadhe
Lal v. Ladli Parshad) decided on 24th August, 1965. Even
a cursory glance at Sectionsections 213 and Section57 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 SectionSohan Singh v. Bhag Singh
(supra), referred to above, was not brought to his
notice.”

9) SectionIn 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 of Bengal or
within the local limits of ordinary, original civil
jurisdiction of High Courts of Judicature at Madras and

4 AIR 2002 Delhi 6

Page 6 of 9
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.”

10) The Division Bench of Delhi High Court in Shri Rajan Suri Anr.

v. The State Anr.5 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.”

11) Learned counsel for the respondents also referred to the Supreme

Court judgment in SectionClarence Pais Ors. v. Union of India6

wherein, validity of Section 213 of the Act was challenged as

unconstitutional and discriminatory against the Christians. This

Court held as under:

“6. … A combined reading of Sections 213 and Section57 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

5 AIR 2006 Delhi 48
6 (2001) 4 SCC 325

Page 7 of 9
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.”

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

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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.

14) In view of the above, we do not find any error in the judgment

passed by the Division Bench of the Delhi High Court.

Consequently, the appeal is dismissed.

………………………………………J.

(L. NAGESWARA RAO)

………………………………………J.

(HEMANT GUPTA)

NEW DELHI;

JULY 24, 2019.

Page 9 of 9

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