Back
1999 Supreme(Bom) 24
IN THE HIGH COURT OF BOMBAY
(AURANGABAD BENCH)
S.B. Mhase, J.
Kantabai Mahipat Sonavane..... Petitioner.
Versus
Nimba Onkar Patil..... Respondent.
Civil Revision Application No. 545 of 1989, decided on 15-1-1999.
Advocates appeared :
S.C. Bore, for the petitioner.
V.J. Dixit, for respondent No. 1.
Section 213 of the Indian Succession Act, 1925, requiring probate or letters of administration for establishing rights under a Will, is not applicable to Wills executed in respect of properties located within Jalgaon District because neither Clause (a) nor Clause (b) of Section 57, which specify the territorial limits and types of Wills to which Section 213 applies, are satisfied.
Headnote:
INDIAN SUCCESSION ACT, 1925 - SECTION 213, 57 - WILL - PROBATE - REQUIREMENT - APPLICABILITY TO WILLS EXECUTED IN JALGAON DISTRICT - HELD, SECTION 213 NOT APPLICABLE TO WILLS EXECUTED IN RESPECT OF PROPERTIES LOCATED WITHIN JALGAON DISTRICT.
Fact of the Case:
The petitioner, a tenant, challenged the maintainability of a suit filed by the respondent, claiming ownership of a property bequeathed to him by a Will executed by the deceased owner. The petitioner argued that the suit was not tenable without obtaining probate or letters of administration as required under Section 213 of the Indian Succession Act, 1925.
Finding of the Court:
The court analyzed Sections 213 and 57 of the Indian Succession Act and concluded that Section 213 applies only to Wills made by Hindus, Buddhists, Sikhs, or Jains that fall within Clauses (a) and (b) of Section 57. The court found that Jalgaon District, where the property in question was located, was not within the Ordinary Original Civil Jurisdiction of the High Court of Judicature of Bombay, and therefore, Clause (a) of Section 57 did not apply. Consequently, Clause (b), which applies to Wills executed outside the territorial limits but in respect of properties located within those limits, also did not apply.
Issues: Whether Section 213 of the Indian Succession Act, 1925, requiring probate or letters of administration for establishing rights under a Will, applies to Wills executed in respect of properties located within Jalgaon District.
Ratio Decidendi: The court held that Section 213 of the Indian Succession Act, 1925, is not applicable to Wills executed in respect of properties located within Jalgaon District because neither Clause (a) nor Clause (b) of Section 57, which specify the territorial limits and types of Wills to which Section 213 applies, are satisfied. Jalgaon District is not within the Ordinary Original Civil Jurisdiction of the High Court of Judicature of Bombay, and therefore, the Wills executed in respect of properties located within Jalgaon District are not subject to the requirement of probate or letters of administration under Section 213.
Final Decision: The court dismissed the petitioner's revision application, upholding the trial court's order rejecting the petitioner's objection based on Section 213 of the Indian Succession Act. The court held that the suit filed by the respondent was maintainable without obtaining probate or letters of administration.
2. The respondent No. 1 has filed Regular Civil Suit No. 553 of 1985 in respect of the property bearing C.T.B. No. 1697/B/12 Municipal House No. 291 admeasuring 46.44 Sq.Mtrs. This was the property initially owned by one Jayabai who had expired on 20th July, 1985 at Jalgaon. The present petitioner is the tenant alongwith other tenants. This property has been bequeathed by deceased Jayabai to the respondent plaintiff by Will-deed dated 29-1-1985 and after her death the respondent-plaintiff claims that he has become the owner of the said property on the basis of the said Will-deed and therefore, the plaintiff has filed the suit for the reliefs claimed in the suit.
3. The defendant-petitioner has filed an application at Exh. 125 contending that in view of the provisions of section 213 of the Indian Succession Act, 1925 the suit filed by the respondent-plaintiff is not tenable unless the probate of the Will and/or letters of administration with a Will annexed or with on authenticated copy of the Will annexed is obtained by the respondent-plaintiff.
4. Mr. Bora, learned Counsel, appearing for the petitioner-original defendant state that in view of the provisions of section 213 read with section 57(A) and (B) of the Indian Succession Act, 1925, the suit filed by the plaintiff is not tenable in law. The said proposition is opposed by Mr. V.J. Dixit, learned Counsel appearing for the respondent. With the help of the learned Counsel, sections 213 and 57 of the Act were perused and on analysis, section 213 lays down that 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. Sub-section (2) lays down that the said section shall not apply in the case of Wills made by Muhammadans and shall apply only (i) in case of wills made by the Hindu, Buddhist, Sikh or Jain where such Wills are made of the classes specified in Clauses (a) and (b) of section 57 and (rest of the section is not necessary for the decision of this revision) therefore not reproduced.
5. Thus on analysis of this section, it becomes clear that sub-section (1) of section 213 applies to those Wills which are made by Hindu, Buddhist, Sikh or Jains as they fall in Clauses (a) and (b) of section 57 of the Indian Succession Act, 1925 and therefore as a necessary consequence the inference follows that those Wills which are not covered as specified in Clauses (a) and (b) of section 57 are not covered under section 213 and in respect of those Wills, the probate and/or letters of administration as stated in section 213 is not required.
6. Section 57 states that the provisions of this part which are not out in Schedule III shall, subject to restrictions and modifications specified therein, apply (a) to all Wills and Codicils made by any Hindu, Buddhist, Sikh or Jains, on or after the firat 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 immovable property situate within those territories or limits and; (c) to all Wills and Codicils made by any Hindu, Buddhist, Sikh or Jains 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. For the decision of this Civil Revision Application it is not necessary to consider the Clau
