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High Court Of Delhi
WINIFRED NORA THEOPHILUS - Appellant
Versus
LILA DEANE - Respondent
Interim Application 8120 of 1998
Decided On : 07/10/2001
Held:
It is necessary for the defendants to obtain the probate of the will from the Court of competent jurisdiction before any right can be established in their favor. The judgments cited by learned counsel for the defendants are not applicable as in those cases it is held that in Delhi no probate is required but the cases relate to the wills executed by Hindu, Buddhist, Sikh, etc.
As the will allegedly executed by the deceased has not been probated yet, no right stands established on the basis of this will.
Key Points: - Probate of a will is necessary to establish rights as executor or legatee for Christians under Section 213 (!) (!) (!) . - Section 213 of the Indian Succession Act 1925 does not apply to wills made by Muslims, and applies to Hindus, Buddhists, Sikhs, Jains, and Parsis only under specific conditions (!) (!) . - The court confirmed that interim protection was appropriate since the will had not been probated (!) .
(July 10, 2001) 2001 (TLS)125185
2001-AD (Del)-5-111 :: 2002-AIR (Del)-0-6
WINIFRED NORA THEOPHILUS Vs. Lila Deane
A. K. SIKRI
( 1 ) BOTH these applications can be disposed of by this common order inasmuch as IA. 8120/ 98 is filed by the plaintiff under Order XXXIX Rules 1 and 2 read with Section 151 CIVIL PROCEDURE CODE for an ex-parte ad-interim injunction and IA. 9965/98 is filed by the defendant Nos. 1,3,4 and 5 under Order XXXIX Rule 4 CIVIL PROCEDURE CODE for vacating ex-parte injunction order dated 17/9/98 passed in IA. 8120/98. Briefly stated that the suit is filed by the plaintiff for partition and injunction. It is mentioned in the plaint that parties are Indian Christians as defined in Section 2 (d) of the indian Succession Act, 1925. The pedigree table of the family of the parties is shown in para- 1 of the plaint.
( 2 ) THE dispute is about the inheritance of the property of Ms. Pricilla Violet Mukha who according to the plaintiff was a spinster and died on 26/11/1995 by intestate i. e. without executing any will. The plaint avers that as per the provision of Section 47 of the Indian succession Act,1925, the property is to be divided in the following manner:
A) Mrs. Winifred Nora Theophilus - 1/3 (Plaintiff)
B) Mrs. Lila Deane 1/5 out of 1/3 i. e. 1/15 (Defendant No. 1)
C) Mrs. Bimla Dwyer-do-1/15) (Defendant No. 2))
D) Mr. Raju Mukha -do-1/15) 1/3 (Defendant No. 3))
E) Miss. Miracle Mukha -do- 1/15) (Defendant No. 4) )
F) Wing Commander Regional -do-1/15) (Defendant No. 5)
G) Mrs. Roomily Empanel - 1/3 (Defendant No. 6)
( 3 ) SOME portion of the property in question, namely,18, Sampan Bazaar, Ganger, Boggle, new Delhi is in possession of the plaintiff and other different portions are in possession of defendants 1 to 5. The plaintiff claims to be in actual physical possession, use and occupation of three rooms, kitchen, bath room and terrace on the first floor of the said property as a co-sharer/joint owner which has been shown in yellow colour denoted by words e F G H I J K L in the plan filed by the plaintiff along with the plaint. In this portion previously the husband of the plaintiff was residing as tenant of Ms. Pricilla Violet Mukha at a monthly rent of RPS. 350. 00 and after his death the plaintiff became the tenant under Ms. Pricilla Violet mukha now deceased. IA. 8120/98 was filed along with the plaint for ad-interim injunction from restraining the defendants from alienating, transferring, disposing of or creating any charge in the said suit property. On 17/9/1998 while issuing summons in the suit, ex-parte order was passed to the effect that no third party interest shall be created by the defendants on any specific portion of the property in dispute and possession shall not be handed over to any third person in respect of any specific portion of the property. The stand of defendants 1,3,4 and 5 in IA. 9965/98 filed under Order XXXIX Rule 4 CIVIL PROCEDURE CODE is that the deceased had left behind a will executed by her on 24/5/1993 in respect of suit property. This will was duly registered with the Sub-Registrar as No. 2587 in Additional Book No. Ill, Volume 732 at Pages 150 to 152 and registered on 24/5/1993. According to the said will she had bequeathed the said property in the following manner:
1. The portion of the suit property (i. e. Half portion) built on Chaser Nos. 316 and 289 in favour of the Defendant No. 5 i. e. Wg. Cdr. Reginald Mukha:
2. The portion of the Suit property built on Khasra No. 315 on the side of Samman bazar Road, jointly in favour of the Defendant Nos. 1 and 4: and
3. The remaining portion of the suit property built on Khasra N0. 290 on Church Lane side in favour of Mr. Ronald Mukha described in the suit by the name. of Raju Mukha, as Defendant No. 3 in the suit.
( 4 ) THUS according to the defendants different portions of the property have been bequeathed by the deceased in favour of defendants 1,3,4 and 5 only and nothing is given to the plaintiff. The plaintiff has, ther
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