IMPORTANT POINT
Parties are Hindu and the property situate in the State of Uttar Pradesh, as such, Section 57 read with Section 213 of the Indian Succession Act is not at all application in the case.

Shashi Kant Gupta, J.—This revision has been filed against the order dated 07.05.2011 passed by Additional Civil Judge, Senior Division, Court No. 2, Meerut in Original Suit No. 710 of 2005, whereby the Issue Nos. 6 and 7 has been decided in favour of the plaintiffs/opposite parties.

2. The petitioner is a defendant in the suit. The plaintiffs filed a suit for partition and claimed shares in the property in dispute on the basis of the Will executed in their favour. One set of the defendant filed another Will claiming shares on the basis of the said Will. Another 2nd set of the defendants filed third Will claiming their share on the basis of the Will allegedly executed in their favour. The defendants moved an application under Order 7 Rule 11 C.P.C. for the return of the plaint on the ground that the claim on the basis of the Will cannot be adjudicated unless the Will is approved by the competent court by issuing the probate under Section 213 of the Indian Succession Act (hereinafter referred to as the “Act”) and, therefore, the plaint is liable to be returned.

3. In the suit, two issues, namely, issue Nos. 6 & 7 have been framed. It was framed that whether the suit is barred by Section 213 of the Act and whether barred under Order 7 Rule 11 C.P.C. Both the issues have been decided against the revisionist by the impugned order and, therefore, the present revision has been filed.

4. Learned counsel for the revisionist submitted that unless under Section 213 of the Act, the probate is sought in respect of the Will, no claim can be made against the Will and, therefore, the claim of partition on the basis of the Will is not sustainable and the plaint is liable to be returned.

5. In support of the contention, learned counsel for the revisionist relied upon the decisions in the case of Ram Shankar v. Balakdas, AIR 1992 Madhya Pradesh-224, T. Venkata Narayana and others v. Smt. Venkata Subbamma (dead) and others, AIR 1996 SC1807: 1996(3) Supreme 765 and Amar Deep Singh v. The State & Ors., AIR 2006 Delhi-190.

6. Per contra, learned counsel for the respondent has supported the impugned order and submitted that the impugned order passed by the Court below is in accordance with law. He further referred to the provisions of Section 57 of the Indian Succession Act, 1925 and relied upon the decision of the Apex Court in the Case of Clarence Pais versus Union of India, (2001) 4 Supreme Court Cases 325: 2001(2) Supreme 127 and also relied upon the decisions of this Court passed in the cases of Bhaiya Ji Versus Jageshwar Dayal Bajpai, AIR 1978 Allahabad 268 and Kundan Lal Versus Banwari Lal, 1969 ALJ 946.

7. Heard learned counsel for the parties and perused the record.

8. Before I proceed further in the matter, it is relevant to reproduce for convenience the extract of Section 57 read with Section 213 of the Indian Succession Act around which the controversy revolves:-

“[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.

“213. Right as executor or legatee when established.— (1) No right as executor or le