GUMAN MAL LODHA, J.—This revision petition has raised new dimension and controversy about the constitutional validity of section 213 sub clause (2) and Section 57 (a) and (b) of the Hindu Succession Act.

2. So far as the present case is concerned, this revision petition is directed against the order deciding the issue regarding requirement of obtaining of probate for a will against the plaintiff. The lower court observed that unless a probate is obtained the suit cannot proceed on the basis of the will.

3. The petitioners counsel submits that this is directly against series of judgment of this court. The last one is Mst. Jadav vs. Ram Swarup (1) and the earliest being Bai Kishan Vs. Prabha (2). The earlier decision of Bai Kishan Vs. Prabha (supra) was based on Marwar Succession Act which stood repealed after formation of Rajasthan. Para 5 of Mst. Jadav Vs. Ram Swaroop (supra) judgment reads as under:-

"A perusal of cl. (a) and (b) of the said section will that clause (a) relates to these wills and codicils which are made by any Hindu, Buddhist, Sikh or Jain on or after the first day of Sep., 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 Judicature at Madras and Bombay. Clause (b) refers to these wills and codicils relate to immovable property situated within the territories or limits mentioned in clause (a), but which are executed beyond the limits of those territories. In the present case, it is not alleged by the respondent that the will was executed within the territories mentioned in clause (a) or that the will relates to property situated within the territories mentioned in clause (b). Thus, it is clear that the provisions of sub-sec. (1) of Sec. 213 of the Indian Succession Act were not attracted. This view finds support from Sunderlal and Teeja vs. Nena D.B. Civil Regular First, Appeal No. 83 of 1952 decided on 16.11.54 by a division bench of this Court. The District Judge has committed a mistake in relying upon the decision in Bal Kishans case(l), since that decision was given on the basis of the provisions of the Marwar Succession Act and not of the Indian Succession Act. He was obviously in error in throwing out the will merely on the ground of its inadmissibility by applying sec. 213 (1) of the Indian Succession Act."

4. It would be seen therefore, that so far as this Single Bench is concerned there is a Division Bench judgment of Sunder Lal and Teeja Vs. Nena (3) referred to in the above para 5 of the above judgment, which is binding.

5. However, the learned counsel for the non-petitioner has invited my attention to the judgment of the Honble Supreme Court in Mrs. Hem Nolini Judah Vs. Mrs. Isolyne Sarojbashini Bose (4) in which section 213 of Indian Succession Act has been interpreted and a suit without probate has been held to be not maintainable. At page 1474 in para 6; clause (1) of section 213 has been discussed and it has been observed that the law is well settled that the right under the will claimed by a party either as plaintiff or defendant, will not be entertained unless the bar under section 213 is cleared by obtaining probate or letter of administration. Reliance was placed on a Full Bench Judgment of Ghanshamdass Narayan dass Vs. Gulabi Bai (5).

6. Now before this court the learned counsel for the petitioner submits that so far as the above judgment of the Honble Supreme Court is concerned, it is between Christians and not Hindus, and further this point has been clarified by the Punjab and Haryana High Court in M/s. Behari Lal Ram Charan Vs. Karam Chand Sahni (6) wherein it has been held as under:-

"Succession Act (1925), Ss. 213 and 57—Scope and applicability-Probate of will, not necessary in case where both the persons and property of any Hindu, Buddhist, Sikh or Jaina are outside the territories specified in S. 57 (a) Suit instituted at Delhi for recovery of certain sum on t

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