IMPORTANT POINT
Requirement of probate or letter of administration for immovable property not applicable to wills executed outside the territories specified in section 57.

JUDGMENT :

HEMANT GUPTA, J.

1. 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, 1925(for short, ‘Act’).

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 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 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