- (1.) THIS revision is directed against the judgment of the Civil Judge, Etawah, dated 30th Oct. 1973, deciding Issue No. 6 against Bhaiyaji alias Nagendra Prasad Bajpai the applicant.
(2.) BRIEFLY stated, the facts necessary to appreciate the controversy are these. One Smt. Bitto Kuer was the aunt of the plaintiffs. She owned considerable property. Jageshwar Dayal (since deceased), who was impleaded as defendant in the suit, used to manage the same. During the lifetime of Smt. Bitto Kuer, the defendant made negotiations on her behalf for the sale of her properties, which ultimately fructified. On the transfer having been made by Smt. Bitto Kuer, the defendant received a sum of Rs. 11,000/- on her behalf. Smt. Bitto Kuer, however, died on 14-8-1971. During her lifetime she executed a will bequeathing her estate including the amount in question to the plaintiffs. In the suit, the plaintiffs claimed the said amount on the basis of the will. The suit was contested by the defendant Jageshwar Dayal. He raised a number of grounds. I am, however, not concerned with all of them, excepting one which was to the effect that the plaintiffs could not get the decree without obtaining a probate or a succession certificate. The trial court framed Issue No. 6 as a preliminary issue on the above controversy, and taking the view that the plaintiffs could not get the decree in the suit without producing a probate or a succession certificate, decided the issue against them. Aggrieved, the plaintiffs preferred a revision before the learned District Judge. The revision was dismissed by the impugned order dated 4-5-1974. Hence this second revision.
(3.) THE sole controversy which arises for determination in this case is whether a probate or succession certificate was required to be obtained by the plaintiffs before a decree could be granted in their favour. Sri K. K. Bajpai, counsel appearing for the plaintiffs, contended that as the provisions of S. 214 read with S. 213 of the Indian Succession Act did not apply to a Hindu living in Uttar Pradesh, the courts below committed an error in holding that the suit of the plaintiffs could not be decreed without obtaining a probate or succession certificate. In order to appreciate the above controversy, reference may be made to S. 57 read with S. 213 of the Indian Succession Act. A reading of the aforesaid two provisions would indicate that the provisions of S. 213 requiring an executor or legatee to obtain a probate of the will under which the right is claimed shall only apply in case of wills made by any Hindu, Budhist, Sikh or Jain where such wills are of the classes specified in cls. (a) and (b) of S. 57. Clauses (a) and (b) of S. 57 would indicate that these provisions are applicable to all wills and codicils made by any Hindu, Budhist, Sikh or Jain within the territories mentioned in Cl. (a) and also to all such wills and condicils made outside those territories and limits so far as the same related to immovable property situated within these territories or limits. A combined reading of these two provisions would show that where the parties to the will are Hindus but the properties in dispute are not in Bengal, Bombay and Madras, sub-sec. (2) of S. 213 of the Indian Succession Act applies and sub-sec. (1) has no application. As a consequence, a probate will not be required to be obtained by a Hindu in respect of a will made regarding the immovable properties situated in Uttar Pradesh. The same view was taken by our High Court in Nobat Ram v. Smt. Gyatri Devi (1968 All LJ 69).;