1. This Revision Petition is directed against the order of the trial Court on I.A. No. 2, whereby the eviction petition filed by the petitioners herein has been rejected as being not maintainable and beyond the jurisdiction of the Court.
2. One Smt. Akkayyamma, was admittedly the owner of the residential premises No. 1686, III Cross, Ramachandrapuram, Nagappa Block, Sreeramapuram, Banglore-21. The petitioners claim that they are the legatees under the 'Will' D/- 21-6-1969, executed by Smt. Akkayyamma, under which the premises in question is bequeathed to them. A portion of the said premises is under the occupation of the tenant (respondent herein). The petitioners sought for the eviction- of the respondent on the grounds under Sec. 2 l(l)(a) and (h) of the Kar. Rent Control Act, 1961, (hereinafter referred to as the Act). The tenant (respondent herein) resisted the eviction petition inter alia by filing application I.A. 11, under which, besides questioning the genuineness of the alleged 'Will', it was contended that the petition is not maintainable without the petitioners obtaining the probate of the said will in accordance with the provisions of Sec. 213 of the Indian Succession Act. The trial court considered the said objection as a preliminary issue and rejected the eviction petition as not maintainable and beyond the jurisdiction of the Court.
3. Mr. S.V. Narsimhan. learned Counsel for the petitioners herein contends that the provisions of Sec. 213 of the Indian Succession Act, are not applicable to the instant case. Sec. 213, has to be read with the provisions of Sec. 57 of the Indian Succession Act, under which obtaining probate of a: Will is made mandatory only in respect of the properties situated within the territories specifically mentioned in Cls. (a) and (b) of the said section.
4. Sections 213 and 57 of the Indian Succession Act, which are to be read together, read as under:
Secs. 213 and 57 :
'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 in the case of Wills made by Mohammedans, 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 cls. (a) and (b) of See. 57; and
XX XX X X XX
Sec. 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 Sept., 1970 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 Jaina on or after the first day of Jan., 1927, to which those provisions are not- applied by Cls. (a) & (b).
Provided that marriage shall not revoke any such will or codicil.'
5. A reading of Cl. (a) of See. 57 r/w. See. 213 makes it clear that it could only apply to cases when the property or properties bequeathed are situate in the territories mentioned in Cl. (a) of Sec. 57 of the Act. If the properties and the persons, who may be Hindus, or outside the territory mentioned under See. 57(a), the provisions of See. 213 are not attracted.
6. Mr. Anandram, learned Counsel for the respondent herein relies upon the decision of the Supreme Court in Hem Nolini Judah v. Mrs. Isolyne Sarojbashini Bose, : AIR1962SC1471 , in which it is held that S. 213 creates a bar to establishment of any right under will by an executor or a legatee unless probate or letters of administration have been obtained. But it is seen that the parties in the said case before the Supreme Court were Christians, to whom undoubtedly S. 57 does not apply. It appears to me that S. 57 is an exception to the general rule, under the Indian Succession Act that no probate is required in respect of the will of a deceased Hindu, Buddhist, Sikh or Jaina & Muslim etc. However all the relevant provisions under the said Act requiring obtaining of the probate apply to the Christians.
7. In this view of the matter, the trial Court was not correct in hol4ing that the petitioners are not entitled to maintain the eviction petition for want of a probate in respect of the registered will of Smt. Akkayyamma. It may be mentioned -that the due execution and existence of the said will is not seriously disputed, and it is not the case of either party that there is any rival claimant in respect of the property in question.
8. In the result, the Civil Revision Petition is allowed. The impugned order of the trial Court dated 20th April, 1982, passed in H.R.C. 2908/80 (old No. 721/79) is set aside. The matter is remitted back to the III Addl. Small Causes Judge, Bangalore City, for fresh disposal thereof on merits in accordance with law. No costs.
9. The parties shall appear before the trial Court on 31-5-1985.
10. Mr. Anand Ram learned Counsel for the petitioner has no objection for the rent deposited in the Court to be paid over to the petitioners. I direct that the rents deposited by the tenant in the trial Court may be paid to the petitioner.
11. Order accordingly.