GUMAN MAL LODHA, J. - (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. ' The petitioner's counsel submits that this is directly against series of judgment of this court. The last one is Mst. Jadav vs. Ram Swarup (1) and the earliest being Bai Kishan Vs. Prabha (2 ). The earlier decision of Bai Kishan Vs. Prabha (supra) was based on Marwar Succession Act which stood repealed after formation of Rajasthan. Para 5 of Mst. Jadav Vs. Ram Swaroop (supra) judgment reads as under:- "a perusal of cl. (a) and (b) of the said section will that clause (a) relates to these wills and codicils which are made by any Hindu, Buddhist, Sikh or Jain on or after the first day of Sep. , 1870 within the territories which at the said date were subject to Lieutenant-Governor of Bengal or within the local limits of the ordinary civil jurisdiction of the High Court of Judicature at Madras and Bombay. Clause (b) refers to these wills and codicils relate to immovable property situated within the territories or limits mentioned in clause (a), but which are executed beyond the limits of those territories. In the present case, it is not alleged by the respondent that the will was executed within the territories mentioned in clause (a) or that the will relates to property situated within the territories mentioned in clause (b ). Thus, it is clear that the provisions of sub-sec. (1) of Sec. 213 of the Indian Succession Act were not attracted. This view finds support from Sunderlal and Teeja vs. Nena D. B. Civil Regular First, Appeal No. 83 of 1952 decided on 16. 11. 54 by a division bench of this Court. The District Judge has committed a mistake in relying upon the decision in Bal Kishan's case (l), since that decision was given on the basis of the provisions of the Marwar Succession Act and not of the Indian Succession Act. He was obviously in error in throwing out the will merely on the ground of its inadmissibility by applying sec. 213 (1) of the Indian Succession Act. " It would be seen therefore, that so far as this Single Bench is concerned there is a Division Bench judgment of Sunder Lal and Teeja Vs. Nena (3) referred to in the above para 5 of the above judgment, which is binding. However, the learned counsel for the non-petitioner has invited my attention to the judgment of the Hon'ble Supreme Court in Mrs. Hem Nolini Judah Vs. Mrs. Isolyne Sarojbashini Bose (4) in which section 213 of Indian Succession Act has been interpreted and a suit without probate has been held to be not maintainable. At page 1474 in para 6; clause (1) of section 213 has been discussed and it has been observed that the law is well settled that the right under the will claimed by a party either as plaintiff or defendant, will not be entertained unless the bar under section 213 is cleared by obtaining probate or letter of administration. Reliance was placed on a Full Bench Judgment of Ghanshamdass Narayan dass Vs. Gulabi Bai (5 ). Now before this court the learned counsel for the petitioner submits that so far as the above judgment of the Hon'ble Supreme Court is concerned, it is between Christians and not Hindus, and further this point has been clarified by the Punjab and Haryana High Court in M/s. Behari Lal Ram Charan Vs. Karam Chand Sahni (6) wherein it has been held as under:- "succession Act (1925), Ss. 213 and 57 - Scope and applicability-Probate of will, not necessary in case where both the persons and property of any Hindu, Buddhist, Sikh or Jaina are outside the territories specified in S. 57 (a) Suit instituted at Delhi for recovery of certain sum on the basis of unprobated will-Suit was held to be competent in view of S. 213 (1) read with S. 57 (a.) and (b) exempting such a case from its rigour. AIR 1961 Punj 509, Overruled, AIR 1962 Punj 382 and AIR 1934 Lah 599 and C. R. No. 340- D/24-8 1965 (Punj), Followed. "
(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. He further invited my attention to section 217 of the Hindu Succession Act, which reads as under:- "save as otherwise provided by this Act or by any other law for time being in force, all grantes of probate and letters of administration with the will annexed and the administration of the assets of the deceased in cases of intestate succession shall be made or carried out, as the case may, be in accordance with the provisions of this part. " Having heard learned counsel for the parties, I am of the opinion that unless a Division Bench Judgment of this court referred to above is said to have been declared as bad law either expressly or by implication or overruled or reversed; sitting in Single Bench according to best known principles of precedents, I am bound by it. Even otherwise I feel that Punjab view holding that the judgment of the Hon'ble Supreme Court referred to above is limited to Christians and cannot be applied to Hindus, in view of sub-section (i) of section 213 read with section 57 clause A & B appears to lay down the correct law and the Orissa High Court his not discussed this aspect of the matter at all. ;