JYOTI Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) Two fields bearing S. Nos. 10/2 and 10/2B situated in village Shivar in the district of Akola belonged to Padmabai widow of Rukhabsa Junankar. These fields were acquired by the State under the provisions of the Land Acquision Act (hereinafter referred to as 'the Acquisition Act ') for the purposes of Punjabrao Krishi Vidyapith and an award was made in favour of Padmabai on 30/3/1971, awarding her certain compensation. Not being satisfied with the amount awarded to her, Padmabai asked for a reference under sec. 18 of the Acquisition Act and consequently the matter was referred to the Civil Court and came before the Joint District Judge at Akola. When that reference was pending in the District Court, Padmabai made a will on 11/4/1974 under which she bequeathed some immoveable properties belonging to her to some persons other than the present applicant. However, by residuary clause in the will she bequeathed all other moveable and immoveable properties belonging to her to the present applicant. During pendency of the proceedings before the District Court, Padmabai expired on 19/6/1974. The applicant by her application dtd. 18/7/1974 applied for her name being brought on record in place of that of Padmabai. In this application the applicant claimed to be the legal representative of Padmabai on the strength of the said will. The learned counsel on behalf of the non-applicant by his reply endorsed on this application stated that the State had no objection to bring the names of heirs of the deceased on record, but the right to claim compensation was denied in the absence of probate or Letters of Administration from the competent Court. By his order dtd. 7/2/1975 the learned Joint Judge directed applicant to obtain a probate within three months and stayed the proceedings for that period. It is against this order that the present revision application has been filed.

(2.) Mr. Choube, the learned counsel for the applicant, contended that it was not necessary for the applicant to obtain probate as directed by the learned Joint Judge, inasmuch as the will on which the applicant based her claim, was not covered by the provision of sec. 213 of the Indian Succession Act, 1925 (hereinafter referred to as "the Act "). Mr. Choube, relying on sub-sec. (2) of sec. 213, submitted that the will in question was not covered by clauses (a) and (b) of sec. 57 of the Act and hence it was a will of which it was not necessary to obtain probate under sub-sec. (1) of sec. 213. This contention of Mr. Choube must be upheld for the following reasons.

(3.) There is no dispute that Padmabai, the executant of the will, was a Hindu. Now sub-sec. (1) of sec. 213 of the Act provides that 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 right is claimed or has granted letters of administration with the will or with a copy of an authenticated copy of the will annexed. It would thus appear that if an executor or legatee claims anything under a will, he has to obtain a probate or letter of administration, if he wants to establish his right in any Court of Justice. However, this general provision contained in sub-sec. (1) of sec. 213 is subject to certain exceptions which are laid down in sub-sec. (2) of that sec. . Sub-sec. (2) provides that sec. 213 shall not apply in case of wills made by Mohammadans but it shall apply only in 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 sec. 57. For the purpose of this revision application it is not necessary to consider clause (ii) of sub-sec. (2) of sec. 213. It would, therefore, too clear that sec. 213 or for the matter of that sub-sec. (1) of sec. 213 will apply in the case of a will executed by a Hindu only if such a will is governed by the provisions of clauses (a) and (b) of sec. 57 of the Act. We have, therefore, to see if the will in question in this case is of any of the classes specified in clauses (a) and (b) of sec. 57 of the Act.