ROOPA BAI Vs. HUKAM SINGH

JUDGEMENT

(1.) THIS revision petition has raised new dimension and controversy about the constitutional validity of section 213 sub clause (2) and Section 57 (a) and (b) of the Hindu Succession Act.

(2.) SO far as the present case is concerned, this revision petition is directed against the order deciding the issue regarding requirement of obtaining of probate for a will against the plaintiff. The lower court observed that unless a probate is obtained the suit cannot proceed on the basis of the will. '

(3.) THE contention of the petitioner's counsel is that the Hon'ble Supreme Court's Judgment in Mrs. Hem Nalini Vs. Mrs. Isolyne (Supra) should be confined to the case of Christians only as it has not discussed the cases of Hindus where sec. 57 and 57b came into picture by clause (2) of sec. 213. THE learned counsel for the non-petitioner confronted with the above submitted that firstly in Kanhai Lal Vs. State of Orissa (7) a Division Bench in a case of Hindu have held that in view of the Supreme Court judgment, the pre-emptory rule of law would apply and the executor cannot establish its right on the basis of the will unless he obtains a probate as contemplated by section 211 and 213 of the Succession Act.