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Tynala Musalayya Vs. J. Mohanraj and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtAndhra Pradesh High Court
Decided On
Case NumberC.R.P. No. 126 of 1982
Judge
Reported inAIR1982AP410
ActsCode of Civil Procedure (CPC), 1908 - Order 22, Rule 3; Succession Act, 1925 - Sections 213 and 214
AppellantTynala Musalayya
RespondentJ. Mohanraj and ors.
Appellant AdvocateMangu Venkata Rao, Adv.
Respondent AdvocateP. Ram Shah, Adv.
Excerpt:
.....of succession act, 1925 - respondent filed petition seeking legal representation in suit - petition allowed and respondent being sole representative of plaintiff brought on record in suit - revision petition against order before high court - original plaintiff died without any issues - respondent taken as only heir and legatee to property of plaintiff - petitioner contended that unless will was probated respondent was not competent to represent estate and cannot be added as legal representative of deceased plaintiff - respondent argued on fact that he being sole surviving legal heir to plaintiff probate of will was not relevant - in the event of legal representative choosing to assert its right as sole surviving heir question of probate of will does not arise - held, court below..........is the only legatee of the deceased plaintiff and held that the petitioner should be added as a legal representative of the plaintiff. 3. the learned counsel for the petitioner contended that unless the will is probated the petitioner is not competent to represent the estate and therefore he cannot be added as a legal representative of the deceased. the learned counsel for the respondent contended that the proposed legal representative is the sole surviving legal heir to the plaintiff and as such the probate of will is not relevant and that the succession act does not apply to the will executed by the christians and even otherwise it is not necessary to probate the will at this stage as he is seeking to bring himself on record as legal representative for purpose of representation. 4......
Judgment:
ORDER

1. This Revision petition is against the order allowing the petition to add the respondent herein as the legal representative of the deceased plaintiff under O. 22, R. 3, C. P. C. The averments in the affidavit in support of the petition are that the sole plaintiff died on 20-4-1980 and she had no issues. The deceased plaintiff executed registered was in favour of the petition on 17-2-1977 in sound and made of mind requesting and immovable properties and therefore he is the only heir and legatee to the property of the plaintiff. This petition was resisted on the ground that the alleged Will was not executed in sound disposing state of mind and the suit cannot proceed in the absence of production of succession certificate and the petition is not maintainable.

2. The Court below examined two witness and marked Ext. A-1 i.e., the registered Will dated 17-2-1977 and found that Ext. A-1 is genuine and the petitioner is the only legatee of the deceased plaintiff and held that the petitioner should be added as a legal representative of the plaintiff.

3. The learned counsel for the petitioner contended that unless the Will is probated the petitioner is not competent to represent the estate and therefore he cannot be added as a legal representative of the deceased. The learned counsel for the respondent contended that the proposed legal representative is the sole surviving legal heir to the plaintiff and as such the probate of Will is not relevant and that the Succession Act does not apply to the Will executed by the Christians and even otherwise it is not necessary to probate the Will at this stage as he is seeking to bring himself on record as legal representative for purpose of representation.

4. The essence of the contention of the learned counsel for the petitioner is that Section 213 of the Succession Act postulates that the production of the probate of the Will is an essential requisite for vindicating the right under the Will. As the entire focus is upon S. 213 it may be extracted:-

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 Indian 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 Muhammandans, and shall only apply---

(I) in the case of Wills made by any Hindu, Buddhist, Sikh or Jain where such Wills are of the classes specified in clauses (a) and (b) of S. 57; and

(ii) in the case of Wills made by any parsi dying after the commencement of the Indian Succession (Amendment)act, 1962, where the Wills are made when the and Bombay and where such Wills are made outside those limits, in so far as they relate to immovable property situate within those limits.

Sections 213 is unequivocal and the production of probate of the Will or letters of administration is condition precedent for establishing a right under the Will. It is profitable to have a glimpse of the other provisions of the Succession Act which throw light upon the scope and ambit of S. 213. Section 214 obligates the production of the probate or letters of administration or succession certificate by a person claiming to the effects of the deceased person or to execute the decree passed in favour of the deceased person. Section 273 is concerned with the conclusiveness and binding nature of the probate of Will and the debtors are afforded full indemnity if debts are paid to the representative pursuant to the probate or letters of administration. Section 276 and S. 283 relate to the procedural aspect of the grant of probate or letters of administration and it is provided that the probate shall be granted after notice to the concerned persons and also after due publicity. Section 283 is aimed at alerting the persons who have either direct or remote interest in the property of the deceased person to make representation with regard to their interests in the property. The object that can be discerned form the provisions is that the probate of the Will or letters of administration is considered to be prima facie if not conclusive proof in support of the claim for the property under the Will and the production of the same is mandatory. The learned counsel for the petitioner laying emphasis on the expression 'established' in Section 213 contends that unless the Will is probated the petitioner is not entitled to come on record. The expression 'establish' is not susceptible to the interpretation 'sought to be given'. The expression 'establish' in the context is to make put or prove the right to the property bequeathed under the Will. As correctly pointed out by the learned counsel for the respondent the question of proving the right does not arise at this stage and this is relevant only at the time when trial commences and when the legal representative seeks to rely upon the Will in the evidence or otherwise. The petition to bring on record the legal representatives is for continuation of the proceeding and representation on behalf of the deceased and this does not confer right unless the probate of Will is produced at a later stage. The continuity of the litigation should not be confused with establishing right envisaged under S. 213. In the event of failure to bring legal representatives on record within the stipulated time due to delay caused in obtaining the probate of the Will the suit abates. Therefore, the insistence on production of probate of Will should be only at the time of actually laying a claim to the property. The production of the probate is considered to be of high evidentiary value and unimpeachable document in view of the fact that it is granted after giving due publicity and also after giving an opportunity to the persons who make representation regarding the execution of the Will etc. at the time of the probate of the Will. The expression 'established' in S. 213 does not take in its fold the mere right to represent the estate and therefore even at the inception when the petition is considered for bringing on record the legal representative, the production of the probate of the Will is not visualised. It is only to obviate or get over the abatement of the suit and also to represent and continue the suit the legal representative is brought on record and this does not clothe the legal representative with a right to the property of the deceased. Therefore, in the context the expressions 'Established' has to be necessarily linked up with the actual right to assert the right in the property.

5. The decisions cited may be considered: The supreme Court in Hem Nonillion v. Isolyne Sarojbashini, : AIR1962SC1471 , held that in a suit between the parties regarding the claim for a property, the party who asserts right under a Will has to necessarily produce the probate or letters of administration for establishing the right. The production of the probate of the Will is essential for establishing the right but it cannot be considered as a condition precedent or the essential requisite for continuance of the litigation as such as the legal representative of the deceased. In K. Laxminarayan v. Gopalaswami, : AIR1963AP438 , the creditor who filed the suit died during the pendency of the suit and his legal representatives were brought on record under O. 22, C. P. C. It was held that it is obligatory upon the legal representatives to produce the Succession Certificate and unless the Succession Certificate is produced the decree cannot be passed in favour of the legal representatives and the time should be gives to the legal representatives to obtain succession certificate in relation to the debt is question and as the opportunity was not given by the Court below, the matter was remitted to the lower Court with a direction to the give due notice to the legal representatives to enable them to produce the succession certificate and decide the issue in the suit depending upon the production or otherwise. This case clearly demonstrates that the continuance of the suit as such is not precluded by S. 213 or S. 214 of the Act but it is only at the point off time when the legal representative establishes his right, the production of succession certificates imperative. In K. Apparao v. J. Venkanna, (1969) 2 Andh WR 479, in an execution petition filed by the son of the deceased father claiming right under the Will the Court below directed the certificate. The Division Bench of this Court held that the execution of the decree cannot proceed unless the person is entitled to succession and the succession certificate is produced as provided under S. 214(1)(b) of the Act and upheld the direction of the Court below the Division Bench again granted four months time from the date of the judgment for filing the succession certificate as directed by the Court below. The principle that can be deduced from this case also is that the disposal of the petition for bringing on record legal representatives need not be stalled and the time can be given by the Court to produce the succession certificate.

The decision in Alamelammal v. Suryaprajasaroya Mudaliar, (1915) ILR 38 Mad 988: (AIR 1916 Mad 512 (2) is concerned with the issue whether the mere production of the Will by the executor in the case is sufficient and in this context it is held that the production of ;the probate or letters of administration is essential and the production of the Will as such is not sufficient. In Mahabir Das v. Udit Narain, AIR 1938 Pat 613, it was held that no rights whatsoever can be founded upon the Will in the absence of probate of the Will.

In Narasayyamma v. Andhra Bank Ltd., : AIR1960AP273 , the Division Bench of this court held that S. 213 is not concerned with the vesting of the property of the deceased person in the executor and the vesting does not arise from the probate and the title is derived from the Will only. The grant of probate does not confer any title on the executor and can be relied upon in proof of the title. Sections 213 and 214 are not concerned with the continuance of the litigation by the legal representatives. There is no bar or impediment for the persons to bring on record as legal representatives or for the executor to come on record as the person representing the estate, but at the time when the right is sought to be established under the Will the production should be insisted upon by the Court and even in a situation where the pro bate could not be obtained immediately the time can be given for the production of the probate of the Will. The Court below was seized of the matter with regard to the petition for bringing on legal representatives and at the stage of passing orders for bringing on record the legal representatives, it is not necessary that the probate of the Will should be produced. The procedure of bringing on record legal representatives is for the continuance of the litigation on behalf of the deceased person and if the insistence upon production of the probate is made at this stage, the suit is likely to be abated as there will be delay in granting probate of the Will or letters of administration. The object of section 213 or Sec. 214 is to reinforce the right under the Will by the production of unimpeachable evidence viz., letters of administration or probate of the Will by the Court.

6. the learned counsel for the respondent contended that S. 213 does not apply to Christians and therefore the question of probate of Will executed by Christian does not arise. It is not in dispute that the deceased plaintiff is a Christian. Sub-section (2) of S. 213 expressly adverts to the non-applicability of the section in the case of Wills made by Muhammadan and Cl.(i) of sub-sec (2) us confined only to the made by Hindu, Budhist, Sikh or Jain with respect of the Wills specified in clauses (a) and (b) of S. 57 but not to other categories of Wills made by the enumerated communities. Therefore, the applicability of S. 213 in so far as these communities are concerned is partial as specified in the clause. The partial application to a Parsi has been made in a similar pattern in clause (ii) of sub-section (2). The blanket exemption is for Muhammadans only. In the absence of any mention about the exception regarding the Christians the exception specified with regard to the Muhammadans cannot be extended to Christians. Part IX is concerned with the probate, letters of admission and administration of the estates of the deceased. Section 217 provides that all Wills without any distinction whatsoever and the administration thereof shall be made or carried out in accordance with the provisions of Part IX. Section 218 pertains to the administration of the estate in the case of Hindu, Muhammadan, Budhist, Sikh or Jain dying intestate. Section 219 is applicable to all persons other than the classes referred to is S. 218. Therefore, the perusal of part IX which is concerned with the administration of the estate pursuant to the Will read with S. 213 makes it abundantly clear that exemption if to Christians cannot be spelt out.

7. It is contended by the learned counsel for the respondent that in the respondent that in the petition for bringing on record the legal representatives, it was specifically stated that the proposed legal representative is sole surviving heir to the deceased plaintiff and he should be brought on record as legal representative apart from being universal legatee to the deceased plaintiff. This also can be raised at the stage of the commencement of trial.

8. It must be observed that the Court below is justified is in allowing the petition for bringing on record the legal representatives but erred in concluding that the production of the probate of the Will is not necessary at all. At the stage of trial of the suit when the legal representative seeks to claim right under the Will production of the probate of the Will is essential. In the event of the legal representative choosing to assert its right as the sole surviving heir, the question of production of the probate of the Will does not arise.

9. Therefore, the Civil Revision Petition is dismissed. No Costs.

10. Revision dismissed.


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