VIJENDRA BRIJENDRA SINGH YADAV Vs. RAJKUMARI YADAV

JUDGEMENT

(1.) THIS petition is filed against the order passed by Shri Rajendra Mahajan, Additional District Judge, Gwalior in Civil Suit No. 16-A/03. This order is passed by him and he has signed the order as Special Judge (Atrocities), Gwalior, but he has not mentioned his specific post as Additional District Judge. He has not kept in mind that he is deciding a civil case and not the special case.

(2.) BY this order preliminary issue No. 6 has been decided wherein it is held that Datar singh Yadav has executed a Will at Bhopal on 28-3-1998 in favour of plaintiff and he has further pleaded that a forged Will has been prepared by defendant Nos. 1 to 3. Objection was raised that said Will can not be examined in the Court unless probate has been obtained. Court while deciding the application has held that only probate Court has right to adjudicate the validity of the Will relying upon the judgment in the case of Chiranjilal Shrilal Goenka (deceased) through L. Rs. v. Jasjit Singh and Ors. ,. , 1993 (2 )ALT13 (SC ), 1993 (2 )BLJR1193 , JT1993 (2 )SC 341 , 1993 (2 )SCALE146 , (1993 )2 SCC507 , [1993 ]2 SCR454. Contrary view has been taken in two judgments that the validity of Will can only be examined in a probate proceeding. Previous judgments of this Court were not considered by the two Single Bench judgments and law settled earlier. Dispute was referred to the Larger Bench and which has been decided in the case of Phool Singh and two Ors. v. Smt. Kosa Bai and two Ors. , [1999 (1) MPJR 352 ). Division Bench has referred to various judgments of this Court and other High Courts and has held that in case of two contesting or rival "wills" which are not covered by Section 57 (a) and (b) of the Indian Succession Act, obtaining of probate is not compulsory and jurisdiction of the Civil Court would not be barred. Division Bench has considered the applicability of Will made by a Hindu, Buddhist, Sikh or Jain, who is residing outside the territories mentioned in Section 57 (a) of the Indian Succession Act is not covered by the said Act. In other words it is not mandatory to get probate of Will by Hindu, who is not residing within the territories mentioned in Section 57 (a) of the Indian Succession Act.

(3.) EARLIER view of this Court was considered by this Court in Lachman Singh v. Smt. Brishbhan Dulari (1966 MPLJ SN 8), Marwad Saw Mills v. Nemichand (1984 MPLJ SN 6), Chandmal v. Devisingh (1982 MPWN 297), Shobha Kshrisagar v. Janki Kshirsagar and Anr. (1988 MPLJ 28) and Ruprao Ranoji v. Ramrao Bhagwantrao (AIR 1952 Nagpur 88) and Ahemad s/o Abdul Latif and Anr. v. Ghisia Hira Teli and Anr. (AIR 1945nagpur 237) and Madangopal and Anr. v. Smt. Ramjiwanibai and Ors. [1987 CCLJ (MP) 28], wherein it is held that in a case of a Hindu executing a Will in Madhya Pradesh regarding the property situated within the territories of Madhya Pradesh, probate of a "will" need not compulsorily be obtained, in view of Section 213 (2) of the Act. Contrary view has been taken in the case of Ram Datta v. Krishna Datta (1987 JLJ 198) and in the case of Ramshankar v. Balakdas (AIR 1992 MP 224 ). It is held that Ramshankar's case (supra) and Ram Dulta (supra) does not lay down correct law. Under Section 213 (2) probate of Will is applicable of those who are residing within the territories mentioned in Section 57 (a) of the Indian Succession Act. Punjab High Court in the cases of Ram Chand v. Sardara Singh ,, AIR1962 Pandh 382 , Dr. (Mrs.) Joginder Kaur Malik and Anr. v. Malik Anup Singh ,, AIR1966 Pandh 385 , Behari Lal Ram Charan v. Karam Chand Sahani and Ors. ,, AIR1968 Pandh 108 , Allahabad High Court in the cases of Baiya Ji v. jageshwar Dayal Bajpai ,, AIR1978 All 268 , Administrator General, Allahabad v. Dharamvir , AIR1997 All 158 and Rajasthan High Court in the case of Mst. Jadav v. Ram Swamp and Anr. , AIR1961 Raj 40 has taken a view that probate is not necessary in the light of plain and simple language of Section 57 and Section 213 of the Act. Contrary view taken in the case of Ram Dulla (supra) and Ramshankar (supra) does not lay down the correct law. Division Bench of Madras High Court in the case of Namberumal Chelti v. Veemperumal Filial and Ors. (AIR 1930 Madras 956) has held that probate need not be taken where disposition does not relate to immovable property in Madras and it is not necessary to take probate of the Will as the disposition did not relate to immovable property in Madras.