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Behari Lal Ram Charan Vs. Karam Chand Sahni and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtPunjab and Haryana High Court
Decided On
Case NumberC.R. No. 447-D of 1965
Judge
Reported inAIR1968P& H108
ActsSuccession Act, 1925 - Sections 57, 213 and 213(1)
AppellantBehari Lal Ram Charan
RespondentKaram Chand Sahni and ors.
Appellant Advocate Avadh Behari, Adv.
Respondent Advocate F.C. Bedi, Adv.
DispositionPetition dismissed
Cases ReferredSohan Singh v. Bhag Singh
Excerpt:
.....clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the non obstante clause. the legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. it is well settled that the definition of judgment in section 2(9) of c.p.c., is much wider and more liberal, intermediary or interlocutory judgment fall in the category of orders referred to clause (a) to (w) of order 43, rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. amended section 100-a of the code clearly stipulates that where any appeal from an original or..........where both the person and property of any hindu. budhist, sikh or jaina. are outside the territories mentioned above, the rigour of section 213, sub-section (1), is not attracted. reference was made by the learned referring judge to a decision of the supreme court in mrs. hem nalini v. mrs. isolyne sarojbashini bose, air 1962 sc 1471, but the parties in that case were chiristians (to whom it is agreed section 57 does not apply) and their lordships only considered the implications of sub-section (1) of section 213 of the act and not of sub-section (2) of that section read with section 57 clauses (a) and (b). the learned single judge probably felt the difficulty because of the view taken by shamsher bahadur j. in kesar singh v. smt. tej kaur. 1961-63 pun lr 473=(air 1961 punj.....
Judgment:

J.S. Bedi J.

1. In a suit brought by Mrs. Roshan Lal plaintiff No. 2 and others for recovery of Rs. 88,151 against the defendants, she alleged herself to be the widow of Roshan Lal and propounded a will of the deceased claiming that the deceased had bequeathed his estate to her entitling her to the above-mentioned amount. One of the pleas taken by defendant No. 1 was that the suit was not competent as no probate or letters of administration of the said will had been taken The trial Court, after hearing the parties decided this objection against this defendant and in favour of Mrs Roshan Lal vide its order dated 4th June, 1965 Defendant No. 1 felt aggrieved and approached this Court with the instant revision petition It came up before Grover J who after hearing the parties came to the conclusion that the sole point in this petition was whether in a suit instituted in Delhi it was necessary to obtain probate of a will beforeany claim could be based on that will. After referring to various authorities, mentioned in his order the learned Judge felt that the point involved was not free from difficulty and therefore, referred this revision petition to a larger bench for decision vide his order dated 27th January 1966. That is how this petition has come up before us.

2. It would be helpful to reproduce the provisions of Sections 213 and 57 of the Indian Succession Act which are to be read together.

'213(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 Muhammadans, and shall only apply in the case of wills made by any Hindu, Budhist, Sikh or Jaina where such wills are of the clauses specified in Clauses (a) and (b) of Section 57.'

'57. The provisions of this part (Part VI) 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, Budhist, Sikh or Jaina, on or after the first day of September 1870, within the territories which at the said date were subject to the Lt. 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 Budhist Sikh or Jaina 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.' From a bare perusal of these two sections it is apparent that the objection of defendant No. 1 on the preliminary issue raise ' by him in the trial Court was without any substance Clause (a) of Section 57 read with Sub-section (2) of Section 213, it would appear applies to those cases where the property and parties are situate in the territories of Bengal Madras and Bombay, while Clause (b) applies to those cases where the parties are not residing in those territories but the property involved is situate within those territories Clause (c) of Section 57, however, is not relevant for the present purposes Therefore, where both the person and property of any Hindu. Budhist, Sikh or Jaina. are outside the territories mentioned above, the rigour of Section 213, Sub-section (1), is not attracted.

Reference was made by the learned referring Judge to a decision of the Supreme Court in Mrs. Hem Nalini v. Mrs. Isolyne Sarojbashini Bose, AIR 1962 SC 1471, but the parties in that case were Chiristians (to whom it is agreed Section 57 does not apply) and their Lordships only considered the implications of Sub-section (1) of Section 213 of the Act and not of Sub-section (2) of that section read with Section 57 Clauses (a) and (b). The learned single Judge probably felt the difficulty because of the view taken by Shamsher Bahadur J. in Kesar Singh v. Smt. Tej Kaur. 1961-63 Pun LR 473=(AIR 1961 Punj 509) but that judgment was considered by Falshaw J. (as he then was) in Ram Chand v. Sardara Singh, 1962-64 Pun LR 265=(AIR 1962 Punj 382) who differed from the view taken by Shamsher Bahadur J. in the above mentioned case, holding that no probate was necessary in order to set up a claim regarding property either moveable or immovable on the basis of a will executed in the Punjab and a succession certificate could be granted on the ground of a will without obtaining probate. While referring to the decision of Shamsher Bahadur J., in Kesar Singh's case, 1961-63 Pun LR 473= (AIR 1961 Punj 509) Falshaw J. observed that the view taken by Shamsher Bahadur J. was apparently based on the decision of a Full Bench in Ganshamdoss v. Gulab Bi Bai, ILR 50 Mad 927 = (AIR 1927 Mad 1054) (FB) where it was held that a defendant resisting a claim made by the plaintiff as heir-at-law could not rely in defence on a will executed in his favour at Madras in respect of property situate in Madras, when the will was not pro-bated and no letters of administration with the will annexed had been granted. The Madras case was clearly in accordance with Section 213 read with Section 57 of the Act. We agree with the view taken by Falshaw J. in Ram Chand's case, 1962-64 Pun LR 265 = (AIR 1962 Punj 382). A similar view was expressed by Jai Lal J in Sohan Singh v. Bhag Singh AIR 1934 Lah 599 and by me in C. R. No. 340-D of 1965 DA 24-9-1965 (Punj), Radhe Lal v Ladli Parshad. Even a cursory glance at sections 213 and 57 of the Act leaves no room for doubt that the view taken by Shamsher Bahadui J in case mentioned above was erroneous It appears that the case of AIR 1934 Lah 599 referred to above was not brought to hip notice

3. Agreeing with the view of Falshaw J., we hold that in a suit instituted in Delhi it is not necessary to obtain probate of a will before any claim could be based on that will. This petition is, consequently, dismissed with no order as to costs

Mehar Singh, C.J.

4. I agree


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