JAMSHEDJI DUBASH Vs. MEHARBAI RUSTUMJI DUBASH

JUDGEMENT

(1.) THESE are two appeals under section 96, Civil Procedure Code by the plaintiff against the orders by which his plaints have been rejected under Order 7, Rule 11, Civil Procedure Code. Rejection of the plaints is deemed to be a decree as per definition of decree given in section 2(2), Civil Procedure Code.

(2.) IT is not in dispute that plaintiff Jamshedji, defendant No. 3 Sohrabji and deceased Rustamji were three brothers. Their mother Tehmina Bai executed the Will dated 6-12-1961 at Bombay. That covered certain properties situated at Katni in Madhya Pradesh. The defendants No. 1 and 2 are heirs of Rustamji. The testator has also died on 12-5-1983. Under the Will defendant No. 3 Sohrabji was declared to be the executor. He submitted an application for obtaining the probate in respect of this Will. The properties at Katni are said to have been bequeathed by the testator to her three sons named above. The probate has not yet been issued. The plaintiff instituted three civil suits against the defendants in the year 1986. Civil Suit No. 11-A of 1986 was in respect of the property in Sawarkar Ward, Katni. An objection was raised on behalf of the defendants No. 1 and 2 that the suit is not maintainable in the absence of Probate as per section 213 of the Indian Succession Act, 1925. That objection was overruled by the trial Court but it found favour with the District Court in a revision (as per local Amendment the revision lay to the District Court) and the plaint was rejected as per Order 7, Rule 11, Civil Procedure Code. The plaintiff challenged that order by filing a writ petition under Article 227 of the Constitution of India before this Court. That was M.P. No. 103 of 1990. A Division Bench of this Court dismissed the said writ petition by order dated 19-3-1990. One of the grounds for dismissing the writ petition, as stated in para 12, was that the plaintiff "never made any request for grant of time to file the probate". It was held that the plaintiff has no "subsisting cause of action in the absence of probate or letters of administration". The plaintiff filed a Special Leave Petition before the Supreme Court against this order and that was dismissed. However, it was observed by the Supreme Court that "this dismissal shall not have any bearing on any subsequent proceedings that may be taken by the petitioner in respect of the matter according to law."

(3.) AFTER hearing the learned counsel for the appellant and the defendants No. 1 and 2 in person this Court is of the opinion that the plaint could not have been rejected under Order 7, Rule 11(d), Civil Procedure Code. The plaint can be rejected under Order 7, Rule 11(d), Civil Procedure Code "where the suit appears from the plaint to be barred by any law". Section 213 of the Indian Succession Act, 1925 provides : "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". The words of this section clearly indicate that no right as a legatee can be "established" in the absence of probate or letters of administration.