Probate is not required for Wills made by Hindus outside the specified territories and in respect of property situate outside those territories. The jurisdiction of the Civil Court is not barred in case of contesting Wills.

V.K. Agrawal, J.

1. The learned Single Judge has referred the following questions for decision-

(1) "Whether, a probate is compulsorily required in case of a Will made by a Hindu, Buddhist, Sikh or Jain, who is residing outside the territories mentioned in section 57 (a) of the Indian Succession Act (hereinafter referred to as 'the Act') and who has executed a Will in respect of property which is not situate in those territories ?"

(2) "Whether, in case of two rival Wills not covered by section 57 (a) & (b) of 'the Act', obtaining of probate is compulsory and the jurisdiction of the civil court would be barred ?"

2. Facts relevant for decision of this reference stated briefly are : that the appellants/plaintiffs are the grandsons (daughter's son) of testator Kashi Bai. The respondent No. 1 Mst. Kosa Bai is the sister-in-law (Bhabhi) of Kashi Bai, while the respondents/defendants 2 & 3 Himachal Singh and Badan Singh are the sons-in-law of respondent No. 1 Mst. Kosa Bai. Kashi Bai was predeceased by her husband and her daughter Gopi Bai, the mother of plaintiffs/appellants. Undisputably, Kashi Bai was the owner of land bearing Khasra No. 60, area 2.544 acres and the house situate in village Sarkheda, Tashil; Deori, District Sagar in Madhya Pradesh. This property is the subject matter of the two Wills executed by Kashi Bai and the said property will now be referred to as 'disputed property'. It is also not in dispute that the parties are Hindus and that the two Wills were executed by Kashi Bai within the territory of Madhya Pradesh.

3. The plaintiffs/appellants filed a suit for declaration of their title and possession over the 'disputed property' and for mesne profits thereof on the basis of registered Will dated 31.3.1986 executed in their favour by their grand mother Kashi Bai. The defendants/respondents resisted the claim as above of the plaintiffs/appellants, by setting up another Will allegedly executed in favour of respondent No. 1 Smt. Kosa Bai on 7.8.1986 regarding the 'disputed property'.

4. The trial Court initially framed issues relating to the conferral of right and title over the 'disputed property' on account of the two Wills allegedly executed by Kashi Bai on 31.3.1986 & 7.8.1986 in favour of plaintiffs/appellants and the respondent/defendant No. 1 Kosa Bai respectively and the effect thereof. Later, an additional issue regarding the jurisdiction of the Court to try the suit was framed by the trial Court, Relying on Ramshankar v. Balakdas (AIR 1992 MP 224), it was held by the trial Court that in view of the two rival wills set-up as above, i.e., one executed in favour of plaintiffs/appellants and the other executed in favour of respondent/defendant No. 1, the Civil Court had no jurisdiction to try the suit and that the controversy could only be decided by a Probate Court. After deciding the additional issue as above, the trial Court directed the plaint to be returned under Order 7 Rule 10 of the C.P.C. for presentation before the proper forum that is the Probate Court, within a period of one month.

5. Aggrieved by the above order of the trial Court, the plaintiff/appellant preferred this appeal. The learned Single Judge in his Order of reference noted that in the decision in Ram Dutta v. Krishna Datta reported in 1987 JLJ 198, wherein reliance was placed on Mrs. Hem Nollni Judah (since deceased) and after her legal representative Mrs. Marlean Wilkinson v. Mrs. Isolvne Sarojbashini Bose and others (AIR 1962 SC 1471) and Ganshamdoss Narayandoss v. Gulab Bi Bai (AIR 1927 MAD 1054) has taken a view that a defendant cannot establish his right as an executor or legatee in any Court unless a Court of competent jurisdiction 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. It was also noticed that the above view was contrary to the view consistently taken in Lachhman Singh v. Smt. Brishbhan Dula