The main legal point established in the judgment is that no probate was required as the 'Will' fell under clause (c) of Section 57 of the Indian Succession Act, 1925.

A. K. Yog, J.—Above First Appeal From Order under Section 299 of the Indian Succession Act, 1925 (called ‘the Act’), filed by Smt. Bimla Gaindhar is against the judgment and order dated March 12th, 1996 passed by IIIrd Additional District Judge, Saharanpur, deciding issue No. 3 ; viz., (whether a ‘Hindu’ is required to obtain a probate in the State of U. P. in case of a ‘Will’ in his favour?)

2. Smt. Bimla Gaindhar (appellant before us) had filed a petition under Section 276 of the Act for grant of probate on the basis of purported Will, an unregistered document (paper No. 10A1 on original record).

3. We are omitting to give other details as the same is not required for the purpose of deciding the issue in hand and for disposal of the present first appeal from order.

4. According to the impugned judgment and order dated March 12, 1996, learned Additional District Judge came to the conclusion, relying upon two single Judge reported decisions by the Bench of learned single Judge, Bhaiya Ji v. Jageshwar Dayal Bajpai, AIR 1978 All 268 and Smt. Pitamo v. Shyam Singh, AIR 1978 All 301, that no probate was required in the facts of the instant case and consequently held that the proceedings on the basis of the ‘Will’ for seeking letter of probate are misconceived since the ‘Will’, in question did not fall in either of the category contemplated under clauses (a) or (b) of Section 57 read with Section 213 of the Act.

5. The sole question required to be decided in the instant case is ‘whether the appellant is required to claim ‘Probate’ on the basis of ‘Will’ dated November 2, 1991 (Paper No. 10A1) attached with the probate petition? It is to be noted that the deceased Chandra Shekhar Gaindher according to the applicant executed a ‘Will’ (unregistered) and after his death bestowed his all rights in his movable and immovable properties and other household goods in favour of her mother Smt. Bimla Gaindher/ appellant and further that his wife the deceased Smt. Usha Gaindher to have no right under said ‘Will’.

6. There is no dispute that movable and immovable properties of Chandra Shekhar Gaindher deceased, (the subject matter of the said Will) are situate outside territories and have not been subject to the Lieutenant-Governor of Bengal or within the local limits of the ordinary original civil jurisdiction of the High Courts of Judicature at Madras and Bombay. The parties to the ‘Will’ admittedly are ‘Hindus’.

7. For convenience of the Court, Sections 57, 213, 214, 370, 372 and 387 of the Act, which are relevant for the present appeal, are reproduced below :

“57. Application of certain provisions of part to a class of Wills made by Hindus, etc. 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 Jaina, on or after the first day of September, 1870, within the territories which at the said date were subject to the Lieutenant-Governor of Bengal or within the local limits of the ordinary original civil jurisdiction of the High Courts of Judicature at Madras and Bombay ;

(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, Buddhist, 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.

213. Right as executor or legatee when established :

(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 i