Probate is not required for a suit based on a will in Delhi if the person and property are outside Bengal, Madras, and Bombay.

J.S.Bedi, J.

1. In a suit brought by Mrs. Roshan Lal plaintiff No. 2 and others for recovery of Rs. 88,151 against the defendants, she alleged herself to be the widow of Roshan Lal and propounded a will of the deceased claiming that the deceased had bequeathed his estate to her entitling her to the above-mentioned amount. One of the pleas taken by defendant No. 1 was that the suit was not competent as no probate or letters of administration of the said will had been taken The trial Court, after hearing the parties decided this objection against this defendant and in favour of Mrs Roshan Lal vide its order dated 4th June, 1965 Defendant No. 1 felt aggrieved and approached this Court with the instant revision petition It came up before Grover J who after hearing the parties came to the conclusion that the sole point in this petition was whether in a suit instituted in Delhi it was necessary to obtain probate of a will before any claim could be based on that will. After referring to various authorities, mentioned in his order the learned Judge felt that the point involved was not free from difficulty and therefore, referred this revision petition to a larger bench for decision vide his order dated 27th January 1966. That is how this petition has come up before us.

2. It would be helpful to reproduce the provisions of Sections 213 and 57 of the Indian Succession Act which are to be read together.

"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 administration 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, Budhist, Sikh or Jaina where such wills are of the clauses specified in Clauses (a) and (b) of Section 57."

"57. The provisions of this part (Part VI) 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, Budhist, Sikh or Jaina, on or after the first day of September 1870, within the territories which at the said date were subject to the Lt. 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 Budhist Sikh or Jaina 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." From a bare perusal of these two sections it is apparent that the objection of defendant No. 1 on the preliminary issue raise by him in the trial Court was without any substance Clause (a) of Section 57 read with Sub-section (2) of Section 213, it would appear applies to those cases where the property and parties are situate in the territories of Bengal Madras and Bombay, while Clause (b) applies to those cases where the parties are not residing in those territories but the property involved is situate within those territories Clause (c) of Section 57, however, is not relevant for the present purposes Therefore, where both the person and property of any Hindu. Budhist, Sikh or Jaina. are outside the territories mentioned above, the rigour of Section 213, Sub-section (1), is not attracted.

Reference was made by the learned referring Judge to a decision of the Supreme Court in Mrs. Hem Nalini V/s. Mrs. Isolyne Sarojbashini Bose, AIR 1962 SC 1471, but the parties in that case were Chiristians (to whom it is agreed Section 57 does not apply) and their Lordships only considered the implications of S