1. Transfer petitions concerning a partition suit and a testamentary case for letters of administration involving properties in multiple states under the Indian Succession Act, 1925. (Para 1 , 3 , 4 , 5 , 8 , 12 )
Back
Next 
2021 Supreme(SC) 80
SUPREME COURT OF INDIA
V. Ramasubramanian, J.
Ravinder Nath Agarwal – Petitioner
Versus
Yogender Nath Agarwal & Ors. – Respondents
Transfer Petition (Civil) No. 970 of 2016 With Transfer Petition (Civil) No.2779 of 2019
Decided On : 12-02-2021
Advocates appeared:
For the Parties :Nitya Ramakrishnan, Rakshanda Deka, Trideep Pais, Shivam Sharma, Sanya Kumar, Anjana Chandrashekar, Sanjeev Agarwal, Divya Roy, V. Govind Venugopal, Prashant Kumar, M/S. Ap & J Chambers, Gautam Narayan, Advocates
For the Parties :Nitya Ramakrishnan, Rakshanda Deka, Trideep Pais, Shivam Sharma, Sanya Kumar, Anjana Chandrashekar, Sanjeev Agarwal, Divya Roy, V. Govind Venugopal, Prashant Kumar, M/S. Ap & J Chambers, Gautam Narayan, Advocates
IMPORTANT POINTS
(1) There is no prohibition for a person from producing, relying upon and claiming a right under a Will, in any proceeding instituted by others including other legal heirs for partition or other reliefs.
(2) Transfer of suit – In these days of virtual hearings, location of parties is hardly a matter of concern.
Headnote:
Civil Procedure Code, 1908 – Section 24 – Indian Succession Act, 1925 – Sections 57 and 264 – Transfer of suit – Partition suit and testamentary case – There is no prohibition for a person whose case falls outside purview of these provisions, from producing, relying upon and claiming a right under a Will, in any proceeding instituted by others including other legal heirs for partition or other reliefs – Nothing prevented petitioner from filing testamentary proceedings in High Court of Delhi by taking advantage of Proviso (a) of Section 273 and seeking withdrawal of suit for partition from District Court, Saket to High Court to be tried together – In these days of virtual hearings, location of parties is hardly a matter of concern – Very fact that even according to petitioner, attester can be examined through video conference or court appointed commissioner would show that place where proceedings are pending, is immaterial – Since Will set up by petitioner covers properties located both in Nainital and Delhi, both these courts have concurrent jurisdiction – But in view of Proviso (b) to Section 273, letters of administration granted by a District Court cannot have validity in respect of a property located outside State, if its value exceeds Rs. 10,000/- – However, this problem can be resolved by ordering transfer of testamentary case to High Court of Delhi and ordering transfer of partition suit from District Court, Saket back to High Court of Delhi – Transfer Petitions Partly allowed. (Paras 37, 43, 45, 46, 48 and 49)
Facts of the case:
Short question that arises for consideration in these transfer petitions, is as to whether partition suit pending on the file of the District Court at Saket, New Delhi from the year 2016 (instituted in 2012), should be transferred to the District Court, Nainital, Uttarakhand or whether the testamentary case pending on file of the High Court of Uttarakhand from 2019, should be transferred to the District Court, Saket, so that it could be tried along with the partition suit already pending there.
Findings of Court:
Fact that 3 out of the surviving 5 children are citizens of other countries residing out of India and that therefore they cannot have any objection to the proceedings being tried in Uttarakhand, is not acceptable. It would have been open to the petitioner to raise such a contention, had he chosen to make the first strike by filing testamentary proceedings in 2011 or 2012. He did not do so.
Result : Transfer Petitions Partly allowed.
Legal Category Hierarchy
- practice and procedure
- family law
Table of Contents
2. Whether testamentary proceedings, being in rem, have primacy over partition suits and whether party convenience justifies transferring the partition suit to the property's location. (Para 13 , 14 , 16 )
3. Probate is not mandatory for all Wills; primacy of testamentary proceedings applies only when Section 213(1) bars relying on a Will without probate. (Para 18 , 19 , 20 , 21 , 22 , 23 , 24 , 25 , 26 , 27 , 28 , 29 , 30 , 31 , 32 , 33 , 34 , 35 , 36 , 37 , 38 , 39 , 40 , 41 , 44 , 45 , 46 , 47 )
4. Mandatory probate under Section 213(1) applies only to specific classes of Wills; otherwise, a Will may be relied upon in civil proceedings without probate. (Para 34 , 35 , 36 , 37 )
5. Partition suit and testamentary case transferred to the High Court of Delhi to be clubbed and disposed of together. (Para 48 , 49 )
6. When is probate or letters of administration mandatory to establish a right as an executor or legatee?
Under Section 213(1) of the Indian Succession Act, 1925, it is mandatory only for Wills made by Hindus, Buddhists, Sikhs, or Jains within the local limits of the ordinary original civil jurisdiction of certain High Courts, or Wills covering immovable property in those territories. (Para 32 , 33 , 34 , 37 )
7. Do testamentary proceedings always have primacy over other civil proceedings like partition suits?
Primacy is accorded to probate proceedings only when the party is legally disabled from relying on the Will in any other proceeding without first obtaining probate under Section 213(1). If probate is not mandatory, the Will can be produced in any civil action. (Para 23 , 37 , 40 )
8. What is the effect of probate or letters of administration granted by a High Court across different states?
According to Proviso (a) of Section 273 of the Indian Succession Act, 1925, probate or letters of administration granted by a High Court shall, unless otherwise directed by the grant, have like effect throughout other States. (Para 42 , 43 )
9. Does the location and health of parties necessitate the transfer of a suit to a specific jurisdiction in the era of virtual hearings?
No, the location of parties is hardly a matter of concern in the age of virtual hearings, as witnesses can be examined via video conferencing or court-appointed commissioners. (Para 44 , 45 , 46 , 47 )
JUDGMENT :
1. While Transfer Petition (C) No.970 of 2016 is for the transfer of a suit for partition, pending on the file of the Additional District Judge, Saket Court, New Delhi to a Court of competent jurisdiction in the District of Nainital, Uttarakhand, Transfer Petition (C) No.2779 of 2019 is for the transfer of a testamentary case pending on the file of the High Court of Uttarakhand, Nainital to the District Court at Saket, New Delhi.
2. I have heard the learned counsel for the respective parties.
3. One Shri Badri Nath Agarwal, who was ordinarily a resident of Village Bithoriya No.1, Tehsil Haldwani, District Nainital, Uttarakhand, died on 07.05.2011, at the ripe old age of 91 years, leaving behind him surviving, five sons and a daughter. They were (1) Major Ravinder Nath Agarwal, (2) Surender Nath, (3) Narender Nath, (4) Virender Nath Agarwal, (5) Lily Nath (daughter) and (6) Yogender Nath Agarwal. Out of these six children, Shri Narender Nath is now no more. He died on 06.09.2019 leaving behind his wife Smt. Ira Joshi and two sons by name Nikhil Nath and Aditya Nath.
4. Claiming that his father Late Badri Nath executed his last Will and Testament on 06.04.2011, cancelling and revoking his previous Will dated 26.06.2005 and that under the last Will dated 06.04.2011, a vast extent of agricultural land in Village Bithoriya No.1, Tehsil Haldwani, District Nainital, was bequeathed to him, the eldest son Major Ravinder Nath Agarwal got mutation effected in his favour in the revenue records, but the same became the subject matter of a writ petition filed by Lily Nath on the file of the High Court of Uttarakhand. Apart from filing a writ petition challenging the mutation effected in favour of her eldest brother, Lily Nath also filed a civil suit in Suit No.57 of 2011 on the file of Civil Judge, Senior Division, Nainital seeking a decree of permanent injunction. As a counter blast, Major Ravinder Nath, who claims to be the legatee under the Will and who got mutation effected in his favour in respect of one property, also filed civil suit in Suit No.72 of 2011 on the file of the Civil Judge, Senior Division seeking a decree of permanent injunction.
5. Thereafter the last son Shri Yogender Nath, filed a suit in C.S No.2745 of 2012 on the file of High Court of Delhi, for a partition of all the properties left behind by Shri Badri Nath. The suit was filed in September2012. But in the year 2016, presumably after the filing of the written statements, the said suit was transferred to the file of the Additional District Judge, Saket Court, New Delhi and renumbered as C.S No.126 of 2016.
6. Immediately thereafter, Major Ravinder Nath Agarwal filed the first of these transfer petitions namely T.P (C) No. 970 of 2016, seeking the transfer of the partition suit pending on the file of the Additional District Judge, Saket, New Delhi to the Court of District Judge at Nainital, Uttarakhand. On 08.07.2016, this Court ordered notice in the transfer petition and also granted stay of further proceedings in the partition suit.
7. But a few days before this Court ordered notice and granted stay, the plaintiff in the partition suit namely Sh. Yogender Nath (last son) abandoned the suit and hence the only daughter Lily Nath got herself transposed as the plaintiff, by moving an application under Order XXIII Rule 1-A. The original plaintiff Yogender Nath was transposed as defendant No.5.
8. On 09.10.2018, this Court passed an order in T.P (C) No. 970 of 2016, vacating the stay of further proceedings in the partition suit earlier granted on 08.07.2016. Thereafter the eldest son Major Ravinder Nath filed a petition in Testamentary Case No.01 of 2019 on the file of the High Court of Uttarakhand at Nainital, seeking the grant of letters of administration with the Will dated 06.04.2011 annexed thereto, under Section 276 read with Sections 250 and 273(b) of the Indian Succession Act, 1925. Upon receipt of summons in the said testamentary case, the daughter Lily Nath
