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MADHYA PRADESH HIGH COURT
Prakash Shrivastava, J.
Rupinder Singh Anand v. Smt. Gajinder Pal Kaur Anand and others
Writ Petition No.339 of 2015 (Indore); Decided on 3.8.2015.
Held : In terms of section 213(2) the probate or letter of administration is required in case of Wills made by Hindu, where such Wills are covered by section 57(a) and (b), meaning thereby probate is required if such a Will is made at or property is situated within the territories subjected to Lieutenant Governor of Bengal on the relevant date or within the local limits of original civil jurisdiction of Madras and Bombay High Court.
In the present case, undisputedly the Will and codicil have been signed at Indore outside the local limits of High Court at Calcutta, Madras and Bombay. So far as the properties which are situated at Indore are concerned, in respect of those properties no probate or letter of administration is required.
Since the properties at Indore and Delhi for which the respondents are raising their claim the objection relating to obtaining the probate of the Will in respect of those properties cannot be accepted.
Thus, I am of the opinion that the trial Court is competent to consider the Wills in question in respect of the properties which are situated at Indore and Delhi for which no probate or letter of administration is required. Hence the trial Court has not committed any patent illegality in rejecting the petitioner’s objection in respect of the admissibility of the Will. (2001)4 SCC 325 followed. 2010(3) JLJ 338 and 1999(1) MPJR 352 referred to. AIR 1927 Mad. 1054 and AIR 2001 Ker. 184 distinguished.
(2) Succession Act, 1925 -- Ss.57(a) and 213(1) -- applicability of -- Will and codicil not executed within territory mentioned in clause (a) of section 57 -- or Will not related to property situated within the territory mentioned in clause (a) of sectionn 57 -- provisions of section 213(1) not attracted -- probate or letter of administration is not required. [Para 9
(3) Succession Act, 1925 -- S.187 -- doctrine of severability -- applicability of -- it applies to Wills. AIR 1929 PC 283 relied on. (2007)7 SCC 183 and (2008)7 SCC 695 followed. [Para 15
¼1½ mÙkjkf/kdkj vf/kfu;e] 1925 && /kkjk 57¼d½] ¼[k½] 213¼1½ rFkk ¼2½ && iz'kklu&i= ;k izkscsV && dc visf{kr ugha && gd ?kks"k.kk rFkk foHkktu ds fy, okn && oknh ds izfrijh{k.k djus ds izØe ij && izfroknhx.k }kjk foy,oa ØksMi= izLrqr djuk pkgk x;k && foy,oa ØksMi= bankSj esa fu"ikfnr && laifÙk;k¡ bankSj] fnYyh rFkk ckWEcs esa fLFkr && oknh }kjk vkifÙk fd iz'kklu&i=@izkscsV ds fcuk && foy,oa ØksMi= lk{; esa xzkg~; ugha fd;k tk ldrk &&,slh vkifÙk lgh&gh [kkfjt dh xbZ && D;ksafd bankSj,oa fnYyh esa fLFkr laifÙk;ksa ds fo"k; esa && mi;qZDr mica/kksa ds v/khu iz'kklu&i= ;k izkscsV visf{kr ughaA
vfHkfu/kkZfjr % /kkjk 213¼2½ ds fuca/kuksa esa fganw }kjk dh xbZ foYl ds ekeys esa iz'kklu&i= ;k izkscsV visf{kr gS] tgk¡,slh foYl /kkjk 57¼d½,oa ¼[k½ ds varxZr vkrh gSa] ftldk rkRi;Z izkscsV visf{kr gSA ;fn,slh dh xbZ foy ;k laifÙk lqlaxr rkjh[k dks if'pe caxky ds mijkT;iky ds {ks=kf/kdkj ds v/;/khu ;k enzkl rFkk eqacbZ mPp U;k;ky; dh ewy flfoy vf/kdkfjrk dh LFkkuh; lhekvksa ds Hkhrj fLFkr gSA
bl izdj.k esa] fu%lansg :i ls foy,oa ØksMi= dydÙkk] enzkl rFkk eqacbZ dh LFkkuh; lhekvksa ds ckgj bankSj esa gLrk{kfjr fd, x, gSaA tgk¡ rd laifÙk;ksa ls laca/k gS] tks bankSj esa fLFkr gSa] mu laifÙk;ksa ds fo"k; esa izkscsV ;k iz'kklu&i= visf{kr ugha gSA
tc izR;FkhZx.k }kjk bankSj,oa fnYyh dh laifÙk;ksa ds fo"k; esa viuk nkok fd;k tk jgk gS] rc mu laifÙk;ksa ds fo"k; esa izkscsV izkIr djus ds laca/k esa vkifÙk Lohdkj ugha dh tk ldrhA
bl izdkj] eSa bl jk; esa gw¡ fd fopkj.k U;k;ky; mu laifÙk;ksa ds fo"k; esa tks bankSj,oa fnYyh esa fLFkr gSa] ftlds fy, izkscsV ;k iz'kklu&i= visf{kr ugha gS] iz'uxr olh;rksa ij fopkj djus ds fy, l{ke gSA blfy,] fopkj.k U;k;ky; us foy dh xzkg~;rk ds fo"k; esa oknh dh vkifÙk [kkfjt djus esa dksbZ ?kksj voS/krk ugha dh gSA ¼2001½4,l lh lh 325 vuqlfjrA 2010¼3½ ts,y ts 338 rFkk 1999¼1½,e ih ts vkj 352 fufnZ"VA, vkb vkj 1927 enzkl 1054 rFkk, vkb vkj 2001 dsjy 184 izHksfnrA
¼2½ mÙkjkf/kdkj vf/kfu;e] 1925 && /kkjk 57¼d½ rFkk 213¼1½ && dk ykxw gksuk && /kkjk 57 ds [kaM ¼d½ esa mfYyf[kr {ks= ds Hkhrj foy,oa ØksMi= fu"ikfnr ugha && ;k foy /kkjk 57¼d½ esa mfYyf[kr {ks= ds Hkhrj fLFkr laifÙk ls lacaf/kr ugha && /kkjk 213¼1½ ds mica/k vkdf"kZr ugha && izkscsV ;k iz'kklu&i= visf{kr ugha gSA ¼iSjk 9
¼3½ mÙkjkf/kdkj vf/kfu;e] 1925 && /kkjk 187 && izFkDdj.kh;rk dk fl)kar && dk ykxw gksuk && foYl dks ykxw gksrk gSA, vkb vkj 1929 ih lh 283 voyafcrA ¼2007½7,l lh lh 183 rFkk ¼2008½7,l lh lh 695 vuqlfjrA ¼iSjk 15
1. This writ petition under Article 227 of the Constitution of India is at the instance of the plaintiff in the suit challenging the order of the trial Court dated 12.12.2014 whereby the petitioner’s objection in respect of the admissibility of the Will/codicil dated 28.6.2003 and 4.1.2008 has been rejected.
2. In brief, the petitioner has filed the suit for declaration and partition raising the plea that the petitioner’s father late Shri Jagjit Singh Ji Anand had died on 23.4.2008. the respondents No.1 to 3 had filed the written statements contending that Shri Jagjit Singh Ji Anand had executed the Will dated 28.6.2003 and codicil dated 4.1.2008. At the stage of cross-examining the plaintiff, the Will and codicil dated 28.6.2003 and 4.1.2008 respectively was sought to be produced by the respondents No.1 to 3. The objection was raised by the petitioner about admissibility of the Will and codicil without obtaining the letter of administration/probate, and objection has been rejected by the trial Court by the impugned order.
3. Learned counsel appearing for the petitioner submits that since some of the properties mentioned in the Will and codicil are situated in Mumbai, therefore, in terms of section 57(b) and 213(1) of the Indian Succession Act, the letter of probate is necessary without which, the Will and codicil cannot be admitted in evidence.
4. Learned counsel for the respondents have supported the impugned order and have submitted that except three, all other properties mentioned in the Will/codicil are situated in Indore and Delhi and therefore, in respect of those properties no probate is required.
5. I have heard the learned counsel for the parties and perused the record.
6. It is undisputed that the Will dated 28.6.2003 and codicil dated 4.1.2008 were executed by late Shri Jagjit Singh Anand at Indore. Some of the properties covered by the Will/codicil are located at Mumbai whereas the other properties are located at Indore and Delhi. No probate or letter of administration has been obtained in respect of Will/codicil by the parties. Section 57 of the Indian Succession Act, in the Part VI Testamentary Succession, provides for application of certain provisions of part to a class of Wills made by Hindus and reads as under :
“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; 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, Buddhist, Sikh or Jain 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.”
7. Section 213 of the Act relates to the establishment of the right as executor or legatee and provides as under :
“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 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 [or Indian Christians], and shall only apply --
(i) in the case of Wills made by any Hindu, Buddhist, Sikh or Jaina where such Wills are of the classes specified in clause (a) and (b) of section 57; and
(ii) in the case of Wills made by any Parsi dying, after the commencemen
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