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2016 Supreme(P&H) 99
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
K. KANNAN, J.
Avtar Singh Bains - Petitioner
Versus
Gurdev Kaur alias Debo Kaur and others - Respondents
Civil Revision No.7513 of 2014
Decided on : 20.01.2016
Advocate Appeared:
Mr. C.L. Verma, Mr. Aditya Dassaur, for the petitioner
Mr. Sunil Chadha, Mr. Kirpal Singh, for respondents 1, 2 and 5
Headnote:(A) Succession Act, 1925, S.263--Probate--Letter of administration--No probate or Letters is necessary in the case of Wills made by Hindus of Punjab and of properties situated in Punjab
In respect of Wills executed at places which fall within the original jurisdiction of High Courts of Calcutta, Madras and Bombay or when the properties covered under the Wills are situate within the jurisdiction of the above courts, there is a mandate to have the Will probated or letters of administration obtained--The issue of probate or letters of administration is optional for the rest of India by the restrictive operation of Section 213 of the Indian Succession Act. (Paras 12 & 13)
(B) Succession Act, 1925, S.263--Probate--Will executed in foreign country--Letter of administration in India can be granted even on production of only a copy of Will which is called as a limited grant in foreign countries, as contemplated under Section 237 of the Indian Succession Act--There would be no necessity to prove the Will again u/s 68 of Evidence Act--Evidence Act, 1872, S.68 & S.41.
(C) Civil Procedure Code, 1908, S.13--Comity of Courts--What is meant by the principle of comity is that courts of one State or Jurisdiction will give effect to the laws and judicial decisions of another State or jurisdiction, not as a matter of obligation but out of deference and mutual respect. (Para 9)
K. Kannan, J.
I. Order de-exhibiting a Grant of Probate by foreign court point of contention
1. The revision petition is against the order passed by the trial court de-exhibiting a document already admitted into evidence. The exhibit was a copy of letter of administration by the Supreme Court of British Columbia, Canada allowing for the copy of the Will to be produced for the purpose of litigation in India. The Will was purported to have been executed by the father of the plaintiff, Shri Civil Revision No.7513 of 2014 2 Chahan Singh Bains. An objection taken by the defendants was that the Will could not have been admitted into evidence without putting it through a rigmarole of proof as rejected under Section 68 of the Evidence Act. The court accepted it and directed the document to be de-exhibited.
II. Effect of Probate issued in a foreign country petitioner's contention
2. The revision is brought by the plaintiff contending that a probate issued is a judgment inremunder Section 41 of the Evidence Act and a copy of the Will produced under the order of the court through a letter of administration issued is bound to be acted upon by the court in India and there is no compulsion for proof of the Will again in terms of Section 68 of Evidence Act. The counsel would read me through the provisions of Section 41 of the Evidence Act to contend that the expression “court” used under the said provision would include a foreign court of competent jurisdiction as well. The counsel would refer me to the decision of the Supreme Court in Ashok Layland Limited Versus State of T.N. and another, AIR 2004 (SC) 2836 that has held that in the rule of evidence the proof of certain facts cannot be brought to challenge that includes conclusiveness of the grant as contemplated under Section 41 of the Evidence Act. To the same effect is the judgment of the Supreme Court of India in Surinder Kumar and others Versus Gian Chand and others, AIR 1957 (SC) 875 that a person in whose favour a probate is issued must be presumed to have obtained it in accordance with the procedure prescribed by law and that it is a judgment in rem. The Bombay High Court in Devika Damji Shah Versus Rashmi Mukesh Shah and another, 2012(5) AllMR 547 has considered the effect of a probate issued by a foreign court and the Bombay High Court was holding that such a g rant will be tested through the prism of Section 13 of the Civil Procedure Code.
III. Objection raised: Probate of foreign country conflicts with Indian law
3. There, therefore, is the point of contention taken by the respondent that Section 13 which declares a foreign judgment to be conclusive marks exceptions and to our case for application, the learned senior counsel Shri Chadha refers me to clauses (b) and (f) which read as under:
“(b) where it has not been given on the merits of the case.”
“(f) where it sustains a claim founded on a breach of any law in force in India”
The contention by the learned counsel is that the order issuing the Probate is not on merits and the point is not in accordance with Indian law.
IV. Examination of the features of the grant in the foreign country
4. A document which is put in court and on the basis of which a foreign judgment has been delivered would require to be examined. The certified copies of court orders have been presented before me and they would show that the order that was passed by the Supreme Court of British Columbia was issued as “in probate consisting the estate of Chanand Singh Bains.” who died on 30th July, 2009 at Surrey, British Columbia. The grant has been made on rd September, 2013 that makes reference to the grant as issued to Kulvinder Bains and George Benning as joint Administrators and refers to this order as in continuation of the order dated 30th August 2013 and “until original Will or a more authentic copy thereof be brought into and left in the Registry.” It is accompanied with a copy of the Will said to have been executed by Mr. Bains (deceased). This orde
