- (1.) Both the aforesaid First Appeals from Order involve a common question of law as to whether a beneficiary under a will can maintain a petition for obtaining probate under section 213 of the Indian Succession Act? The common facts in both the aforesaid appeals are that late Sardar Brijendra Singh Sarna (now deceased) executed two Wills, one registered Will dated 13.4.2005 was executed in favour of the appellant of F.A.F.O. No. 114 of 2013, namely, Smt. Satnam Kaur and another unregistered Will dated 24.3.2004 is alleged to have been executed by him in favour of the respondent No. 2, who is the appellant in F.A.F.O. No. 222 of 2013, namely, Devendra Pal Singh. Both the appellants separately filed a petition for issue of probate. The petition filed by Smt. Satnam Kaur was registered as Civil Misc. Case No. 167 of 2009 while the petition for grant of probate filed by Devendra Pal Singh was registered as Civil Misc. Case No. 225 of 2009. The learned Court below by passing a common order rejected both the petitions for grant of probate, mainly on the ground that as per the law laid down by the Division Bench of this Court in the case of Bimla Gaindher v. Uma Gaindher and another, 2004 55 AllLR 591a probate of a Will is not required because the property is not situated within the territorial jurisdiction mentioned in sub-section (2) of section 213 of the Indian Succession Act. We have heard learned Senior Advocate Mr. Mohd. Arif khan, assisted by Shri Mohd. Aslam Khan Advocate and Shri D.C. Mukherjee, who is for the respondent in FAFO No. 114 of 2013 and appellant in FAFO No. 222 of 2013.
(2.) Both the aforesaid learned Counsel have supported the arguments of each other and have argued that the law referred to by the Court below does not fully apply to the facts of the present case. Their argument is that it may not be mandatory for a beneficiary of a will to obtain probate under section 213 of the Indian Succession Act but in case such beneficiary wants to obtain a probate of will to be used for other purposes, there is no bar for such person to apply before the Competent Court for grant of probate of Will.
(3.) For the purposes of adjudication of this legal controversy it is relevant to reproduce the provisions of sections 57, 213, 214 and 370 of the Indian Succession Act: "57. Application of certain provisions of part to a class of Wills made by Hindus, etc. 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, Buddhist, 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; (b) to all such Wills and codicils made outside those territories and limits so far as relates to immovable property situate within those territories or limits; and (c) to all Wills and codicils made by any Hindu, Buddhist, Sikh, or Jaina on or after the first day of January, 1927 to which those provisions are not applied by Clauses (a) and (b): Provided that marriage shall not revoke any such Will or codicil. 213. Right as executor or legatee when established-- (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 Will made by Muhammadans, and shall only apply: (i) In the case of Will made by any Hindu, Buddhist, Sikh or Jaina where such Wills are of classes specified in Clauses (a) and (b) of section 57; and (ii) In the case of 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 Court at Calcutta, Madras and Bombay, and where such Wills are made outside those limits, in so far as they relate to immovable property situate within those limits. 214. Proof of representative title a condition precedent to recovery through the Courts of debts from debtors of deceased persons.-- (1) No Court shall: (a) Pass a decree against a debtor of a deceased person for payment of his debt to a person claiming on succession to be entitled to the effects of the deceased person or to any part thereof, or (b) Proceed, upon an application of a person claiming to be so entitled, to execute against such a debtor a decree or order for the payment of his debt, except on the production, by the person so claiming of: (i) a probate or letters of administration evidencing the grant to him of administration to the estate of the deceased; or (ii) a certificate granted under section 31 or section 32 of the Administrator-General's Act, 1913, and having the debt mentioned, therein; or (iii) a succession certificate granted under Part X and "having the debt specified therein; or (iv) a certificate granted under the Succession Certificate Act, 1989; or (v) a certificate granted under Bombay Regulation No. VIII of 1827, and, if granted after the first day of May, 1889, having the debt specified therein. (2) The word 'debt' in sub-section (1) includes any debt except rent, revenue or profits payable in respect of land used for agricultural purposes. 370. Restriction on grant of certificates under this Part.--(1) A succession certificate (hereinafter in this Part referred to as certificate) shall not be granted under this Part with respect to any debt or security to which a right is required by section 212 or section 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 of a deceased Indian Christian, or to any part thereof, with respect to any debt or security, by reason that a right thereto can be established by letters of administration under this Act. (2) For the purposes of this Part, "security" means: (a) any promissory note, debenture, stock or other security of the Central Government or of a State Government; (b) any bond, debenture, or annuity charged by Act of Parliament of the United Kingdom on the revenues of India; (c) any stock or debenture of, or share in, a company or other incorporated institution; (d) any debenture or other security for money issued by, or on behalf of, a local authority; (e) any other security which the State Government may, by Notification in the Official Gazette, declare to be a security for the purposes of this Part";