In the State of Rajasthan, obtaining probate of a will is not necessary for the execution of a decree by a legal heir.

1. - This case has been taken in second round. None present on behalf of the petitioner. Objection raised in execution petition was dismissed by the executing Court vide order dated 29.9.1995 and in view of the provisions contained in O. 21 R. 16 CPC the decree was directed to be executed.

2. In brief facts are that one Smt. Ratan instituted a suit for possession of the disputed property against the petitioner which was decreed on 7.3.1986. Smt. Ratan died in January, 1989 and on 5.3.1993 execution petition was filed by Brijraj Singh stating that he was successor of Smt. Ratan Bai, who executed a will in his favour on 10.2.1985 and an application was submitted by the petitioner raising an objection that Brijraj Singh was not authorised to execute the decree. It was averred in the application that Brijraj Singh did not obtain probate of the will in view of the provisions under section 213 of the Indian Succession Act and unless probate is granted in favour of the Brijraj Singh he was not entitle to execute the decree.

3. The executing Court dismissed the objection vide order dated 29.9.1995 and this order has been assailed in this revision petition.

4. It is settled legal position that in the State of Rajasthan, obtaining probate is not necessary. Relevant provision of Section 213 of the Indian Succession Act reads as under :

"213(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 administrator 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 in the case of wills made by any Hindu, Buddist, Sikh or Jaina where such wills are of the "Classes' specified in "Cls. (a) & (b) of Section 57."

5. It is clear from the reading of sub-sec. (1) of Section 213 that it prohibits all persons from establishing in any Court of justice their right as executor or legatee without obtaining a probate of the will or letters of administration under which the right is claimed from Court of competent jurisdiction in India. Sub-section (2) however makes it quite clear that sub-sec. (1) would not apply in the case of will by Muhamadans. It further lays down that sub-sec. (1) would apply only in the case of wills made by a Hindu or a Buddhist or a Sikh or a Jaina if the will or wills are covered by classes specified in Cls. (a) & (b) of Section 57. In other words, so long as particular will is not covered by Cl. (a) and (b) of Section 57, the question of the application of sub-sec. (1) of Section 213 does not arise.. Section 57 runs as follows :

"57. 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 Jain on or after the first day of Sept. 1870 within the territories which at the said date were subject to Lieutenant Governor of Bengal within the local limits of the ordinary civil jurisdiction of the High Court of Madras and Bombay.

(b) to all such wills and codicils made outside those territories and limits so far as relate stood immovable 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 January, 1927, to which those provisions are not applied by Cls. (a) & (b) :

Provided that marriage shall not revoke any such will or codicile."

6. A perusal of Cls. (a) & (b) of the said section will show that Cl. (a) relaes to those wills and codicils which are made by any Hindu, Buddhist, Sikh or Jain on or after the first day of Sept. 1870 within the territories which at the said date were subject to Lieutenant Governor of Bengal or within the local limits of the ordinary civil jurisdiction of the High Court of Madras and