PREETI JAIN Vs. UNION OF INDIA

JUDGEMENT

(1.) CHALLENGING the order dated 3.3.2008 passed by the Additional District Judge, Court No. 6, Kanpur Nagar in SCC Suit No.40 of 1999 whereby the suit has been dismissed, the present revision under section 25 of the Provincial Small Causes Court Act has been filed by the plaintiff-landlords. The dispute relates to property no. 10/499B Khalasi Line Allenganj Kanpur City, described at the foot of the plaint. Admittely, the said property was owned by two brothers namely Rakesh Jain and Sunil Jain. Plaintiff no. 1 Smt. Preeti Jain, is widow of Rakesh Jain. Plaintiff no. 2 & 3 are the daugthers of Late Rakesh Jain. It appears that the property in dispute has been sold during the pendency of the suit in favour of Shri B.K.Bhagat who has been impleaded as applicant no. 2 in the present revision. The suit was filed for ejectment and recovery of arrears of rent for the period 1.5.1990 to 17.11.1998, water charges and damages etc. It was also pleaded that the property in dispute was let out by the erstwhile owners and landlords to Union of India, the tenant.

(2.) THE tenant namely Union of India filed a written statement admitting that the defendants have entered into lease agreement dated 1.1.1978 with Rakesh Jain and Sunil Jain as they were landlords and lessors. The lease agreement was only for three years and defendants had option to extend the lease agreement for further one year and the government of India has exercised such option. Allegations with regard to payment of water charges and other statutory taxes were denied on the pleas that the taxes have been paid to the respective departments. It was also pleaded that after death of the original landlords, the plaintiffs have not obtained the probate of Will allegedly executed by Sunil Jain in favour of plaintiff no. 1. Unless and until the Will is probated or letters of administration is obtained, there is no landlord after the death of the original landlords. The trial court by the order under revision has dismissed the suit on the ground that the Will in question has not probated and as such the plaintiffs have no right to institute the suit. Heard Shri M.K.Gupta and Shri Afzal Ahmed, advocates for the applicants and Shri Triloki Singh, learned counsel appearing on behalf of the respondent nos. 1 to 3. The respondent nos. 4 & 5 are represented by Aklank Jain, Advocate.

(3.) THE aforesaid decision has been approved by the Supreme Court in the case of Kanta Goel Vs. B.P. Pathak, AIR 1977 SC 1599. The legal position that a co-owner can institute a suit for eviction of a tenant is well established and it is not necessary to burden this judgement. In other words, the trial Court has committed illegality by overlooking the above aspect of the case in dismissing the suit. The argument of learned counsel for the applicant is, thus, well founded. Now, I take up the second point with regard to the requirement of obtaining the probate of Will of Sri Sunil Jain. In Bhaiya Ji Vs. Jageshwar Dayal Bajpai , AIR 1978 Alld. 268 it has been laid down that a combined reading of the provisions of Sections 213 and 57 of the Succession Act would show that where the parties to the Will are Hindu but the property in question is not in Bengal, Bombay and Madras sub section (2) of section 213 of the Succession Act applies and sub section (1) has no application. As a consequence, a probate will not be required to be obtained by a Hindu in respect of a Will made regarding the immovable property situate in other territories than Bengal, Bombay and Madras. The High Court has relied upon its earlier judgement in the case Kundan Lal Vs. Banwari Lal, 1968 Allahabad Law Journal 69. Therefore, on this score also the Court below was not justified in dismissing the suit for not obtaining the probate of Will executed by Sunil Jain.