PITMO Vs. SHYAM SINGH

JUDGEMENT

(1.) THIS is a defendant' s revision against the order of the II Additional District Judge, Meerut dated 24-9- 1974 allowing an appeal arising out of proceedings for the grant of succession certificate and granting a succession certificate in favour of the plaintiff opposite party. The plaintiff opposite party applied for the grant of succession certificate on the basis of a will alleged to have been executed by one Smt. Jai Dei on 11-3-1972 in his favour. Objections were filed to the application by the defendant on various grounds including one that the will was not genuine. The trial court rejected the application for the grant of succession certificate on the ground that the will was not proved to be the duly executed will of Smt. Jai Dei. On appeal the lower appellate court reversed that finding and held that the plaintiff had successfully proved that Smt. Jai Dei had executed the will in question in the plaintiff' s favour. The appeal was accordingly allowed and the certificate was granted in favour of the plaintiff.

(2.) AGGRIEVED the defendant has come up in revision. The only question raised by Sri K. B. L. Gour learned counsel for the defendant applicant was that no succession certificate could be granted by the court below without the grant of probate or letters of administration in respect of the will. He has relied on the provisions of S. 370 of the Indian Succession Act. Section 370 reads as follows :- " Section 370 (1) A succession certificate (hereinafter in this part referred to as a certificate) shall not be granted under this part with respect to any debt or security to which a right is required by S. 212 or S. 213 to be established by letters of administration or probate : Provided that nothing contained in this section shall be deemed to prevent the grant of a certificate to any person claiming to be entitled to the effects." Section 213 provides as follows :- " (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 not apply :- (i) in the case of wills made by any Hindu, Buddhist, Sikh or Jaina where such wills are of the classes specified in clauses (a) and (b) of S. 57, and (ii) in the case of the wills made by any Parsi dying, after the commencement of the Indian Succession (Amendment) Act, 1962, where such wills are made within the local limits of the ordinary original civil jurisdiction of the High Courts at Calcutta, Madras, and Bombay, and where such wills are made outside those limits, in so far as they relate to immoveable, property situated within those limits." Section 57 of the Act states :- " 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, Buddisht, 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 situated within those territories or limits; and (c) to all wills and codicils made by any Hindu, Buddhist, Sikh and Jaina on or after the first day of January, 1927, to which those provisions are not applied by clauses (a) and (b)." Thus a probate is not necessary for the establishment of a right under a will by a Hindu where the provisions of clauses (a) and (b) of S. 57 are not attracted. Clause (a) of S. 57 is admittedly not attracted here and clause (b) is also not attracted because the property does not fall in the Provinces of Bengal, Bombay and Madras. See : Nobat Ram v. Gyatri Devi, (1968 All LJ 69) and Jamna Kuar v. Daulat Rai ((1905) 2 All LJ 126). Further the will in question was alleged to have been executed on 11-3-1972, hence reference could if at all be made to clause (c) of Section 57 only. To such a will clauses (a) and (b) of S. 57 would have no application, see Mst. Janki Bai v. Durga Pd. AIR 1938 All 640. Since the will in question could not fall under clauses (a) and (b) of S. 57, S. 213 had no application to it. The bar contained in S. 370 is attracted only in a case to which Ss. 212 and 213 apply. Since the provisions of S. 213 are not attracted. In the case as discussed earlier, there was no bar to the grant of a succession certificate under S. 370 of the Indian Succession Act. Reliance was placed on Kesar Singh Sant Singh v. Smt. Tej Kaur, AIR 1961 Punj 509, that no succession certificate can be granted to a person unless he had obtained a probate of the will. In that case it was assumed that the provisions of Ss. 212 and 213 (2) were attracted to the case. In the instant case we have found that the provisions of S. 213 are not attracted.