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2008 Supreme(MP) 323
2008 (II) MPWN 108
A.K. Shrivastava, J.
Gouri Bahu through LR Smt. Shashidevi v. Gopal Das
Civil Revision No. 531 of 2004 (J); Decided on 4.3.2008.
G.C. Bhatia for applicant; Yogendra Gautam for respondent.
Headnote:(1) Succession Act, 1925 -- Ss. 270, 213 (J), 213 (2), 57 (a), 57 (b) and 278 -- legatee residing in State of M.P where property situates -obtaining of probate certificate is optional and not mandatory. AIR 1956 Nag. 209, 1976 JLJ SN 93 and 2007 (1) MPWN 14 relied on. [Para 10
(2) Civil P.C., 1908 -- S. 2 (11) -- "legal representative" as defined under -- includes legatee appointed under a Will. AIR 1962 SC 232 followed. [Para 11
(3) Civil P.C., 1908 -- S. 2 (11) -- term "legal representative" -- can be equated with term "personal representative" -- term has wider con notation -- includes not only legal heir of the deceased but also intermeddlers of his estate -- legatee under will also come under its ambit and sweep. (1993) 2 SCC 507 followed. [Para 12
(4) Accommodation Control Act, 1961 (M.P.) - S.12 (1) (a) -- Civil pc., 1908 -- O. 21 R. 36 -- landlord-decree holder dying after decree -executed a Will -- legatee under Will may execute decree as he represents the estate of deceased. 1993 (2) MPWN 99 relied on. [Para 13
¼1½ mRrjkf/kdkj vf/kfu;e] 1925& & /kkjk 270] 213 ¼1½] 213 ¼2½] 57 ¼d½] 57 ¼[k½ rFkk 278 & & olh;rnkj dk e-iz- jkT; esa fuokl tgk¡ laifRr fLFkr gS & & izkscsV izek.ki= oSdfYid gS vkKkid ughaA , vkb vkj 1956 ukx 209] 1976 ts ,y ts ,l ,u 93 rFkk 2007 ¼1½ e-iz- ohDyh uksV~l 14 voyafcrA ¼iSjk 10½
¼2½ flfoy izfdz;k lafgrk] 1908& & /kkjk 2 ¼11½ & & ^^fof/kd izfrfuf/k** & & in ^^O;fDrxr izfrfuf/k* ;Fkk ifjHkkf"kr & & fcy ds v/khu fu;qDr olh;rnkj lfEefyr gSA , vkb vkj 1962 ,l lh 232 vuqlfjrA ¼iSjk 11½
¼3½ flfoy izfdz;k lafgrk] 1908& & /kkjk 2 ¼11½ & & in ^^fof/kd izfrfuf/k** & & in ^^O;fDrxr izfrfuf/k** ds cjkcj ekuk tk ldrk gS & & in dk vFkZ O;kid gS & & u dsoy e`rd ds fof/kd okfjl lfEefyr djrk gS vfirq mldh laink dk n[ky vankth djus okys Hkh & & olh;rnkj Hkh mldk ifjf/k rFkk foLrkj ds v/khu vk,xkA ¼1993½ 2 ,l lh lh 507 vuqlfjrA ¼iSjk 12½
¼4½ LFkku fu;a=.k vf/kfu;e] 1961 ¼e-iz-½ & & /kkjk 12 ¼1½ ¼d½& &flfoy izfdz;k lafgrk] 1908 & & vk-21 fu-36 & & Hkw&Lokeh&fMdzhnkj dh fMdzh ds i‘pkr e`R;q& &foy fu"ikfnr & & olh;rnkj foy ds v/khu fMdzh fu"ikfnr djk ldrk gS D;ksafd og e`rd dh laink dk izfrfuf/kRo djrk gSA 1993 ¼2½ e-iz- ohDyh uksV~l 99 voyafcrA ¼iSjk 13½
1. This revision application under section 115 of the Code of Civil Procedure, 1908 (in short 'the Code') has been filed by the present applicant Smt. Shashi Devi against the order dated 2.8.2004 passed by learned Executing Court directing her to obtain probate certificate in order to execute the decree of eviction passed in favour of decree holder Gouri Bahu.
2. The facts leading to the revision application lie in narrow compass. Smt. Gouri Bahu filed Civil Suit No. 20-A/98 for eviction on the ground envisaged under section 12 (1) (a) of the M.P. Accommodation Control Act, 1961 against the respondent-Gopaldas on the relationship of landlord and tenant. The suit was decreed by learned 2nd Civil Judge Class II, Katni on 31.10.2000.
3. An appeal which was filed by respondent/tenant against his landlord Gouri Bahu was dismissed as abated, since Gouri Bahu died.
4. The present applicant Smt. Shashi Devi presenting herself to be the legatee of Gouri Bahu, filed execution application on the ground that Gouri Bahu executed a Will in her favour on 23.6.2001. It has also been stated in the application that Gouri Bahu died on 27.6.2001 and because a Will has been executed in her favour, she be permitted to get the decree executed passed in favour of Gouri Bahu.
5. An objection was raised on behalf to respondent that since Shashi Devi has not obtained probate certificate, therefore, she is not entitled to execute the decree. The executing Court while accepting the objection raised by respondent closed the execution proceedings by holding that Shashi Devi would be free to execute the decree after obtaining the probate certificate.
6. In this manner, present revision application has been filed.
7. The contention of learned counsel for the applicant is that the parties belonged to State of Madhya Pradesh and the property is also in Madhya Pradesh, since the same is in district Katni. Thus, by placing reliance on the decision of this Court Mayank v. Public in General and others [2007 (1) MPWN 14] it has been argued that there is no necessity to obtain probate certificate. He has also placed reliance on another decision of this Court Kundanbai v. Hazarabi [1976 JLJ SN 93] in this regard.
8. On the other hand, Shri Yogendra Gautam, learned counsel for the respondent, has argued in support of the impugned order.
9. Having heard learned counsel for the parties, I am of the view that this revision application deserves to be allowed.
10. Admittedly, the suit property is in the State of Madhya Pradesh. The Division Bench of this Court in Damodarlal Sunderlal v. Gopinath Swiderlal and another [AIR 1956 Nagpur 209] has categorically held that by Notification No. 7988 dated 19.7.1904, the District Judges were authorized to receive applications for probate and letters of administration even in the case of Hindu Wills not falling under section 57 of the Hindu Succession Act. It was further observed that obtaining the probate certificate is not obligatory when the property is situated in the State of Madhya Pradesh and obtaining probate certificate was optional. In this decision it has also been held that the said notification dated 19.7.1904 is deemed to continue in force as one under sub-section (2) of section 264 of the Act. Thus, I am of the view that obtaining the probate certificate by applicant is only optional and not mandatory.
11. On visualizing and considering the ambit and scope of section 2 (11) of the Code where the term "legal representative" has been defined, I am of the view that it would also cover present applicant in whose favour Will has been executed by decree holder Gouri Bahu and if it is held that she would not come under the ambit and sweep of "legal representative", it would amount to throttling the purpose to define the term "legal representative" and the intention of the Legislature who has widened the scope of definition of 'legal representative' would also be frustrated. The
