Transfer Petition – Testamentary proceedings were initiated much after the partition suit – Two transfer petitions filed seeking transfer of partition suit from Delhi to Nainital, Uttarakhand and of testamentary case from Uttarakhand to Delhi – Held: Petitioner was convinced that there was no bar for him to establish his right as a legatee under the will, even without first obtaining letters of administration – Hence, his subsequent act of filing a testamentary case before High Court of Uttarakhand is nothing but a ruse to take advantage of the general proposition of law that probate proceedings are proceedings in rem and should have primacy – No ground made out to transfer the partition suit to District Court, Nainital – Second transfer petition seeks transfer of the testamentary case pending in the High Court of Uttarakhand to the District Court, Saket, Delhi – Since the Will set up by the petitioner covers properties located both in Nainital and Delhi, both these courts have concurrent jurisdiction – But in view of proviso (b) to s.273, letters of administration granted by a District Court cannot have validity in respect of a property located outside the State, if its value exceeds Rs. 10,000/- –To resolve this, testamentary case is transferred to the High Court of Delhi and the partition suit is transferred from the District Court, Saket, Delhi to the High Court of Delhi – Indian Succession Act, 1925 – ss.57-191, 217-369 .
Indian Succession Act, 1925:
ss.57, 264(2) – Held: Bar u/s.264(2) has no application to cases, to which s.57 applies.
ss.212, 213 – Applicability of – Discussed.
ss.57, 212, 213, 264 – Held: By virtue of s.213(2)(i) r/w s.57(a), (b), the mandatory requirement to seek probate or letters of administration for establishing a right as executor or legatee under a Will, is applicable only to Wills made by a Hindu, Buddhist, Sikh or Jain within the local limits of the ordinary original civil jurisdiction of certain High Courts and to Wills made outside those territories, to the extent they cover immovable property situate within those territories.
Disposing of the Transfer Petitions, the Court HELD: 1.1 This Court did not consider or did not have an occasion to consider in any of the decisions referred, the difference between cases where a party is entitled to rely upon a Will in a judicial proceeding even without getting probate/letters of administration and cases where there is a bar for the production of a Will in a judicial proceeding without first getting probate/letters of administration. The primacy to be accorded to probate proceedings would depend upon the category to which the case belongs. [Para 23][893-G-H; 894-A]
1.2 The District Judge is conferred with the jurisdiction to grant and revoke probates and letters of administration in all cases within his District, under Section 264 of the Indian Succession Act, 1925. Sub-section (2) of Section 264 imposes a bar upon the Courts in any local area beyond the limits of the towns of Calcutta, Madras and Bombay, from receiving applications for probate or letters of administration, until the State Government, by a notification in the Official Gazette, authorized them so to do, wherever the deceased is a Hindu, Muhammadan, Buddhist, Sikh or Jaina or an exempted person. But the bar under Sub-section (2) has no application to cases, to which Section 57 applies. [Paras 27, 28][894-E, G-H; 895-A]
1.3 The jurisdiction conferred upon the District Judge in Chapter IV of Part IX, is also exercisable by the High Court, by virtue of the concurrent jurisdiction conferred under Section 300. The bar under sub-Section (2) of Section 264 is found also in subSection (2) of Section 300. Part VIII of the Act which is perhaps the smallest among the several parts of the Act, contains two important provisions in Sections 212 and 213. While Section 212 deals with the right to intestate’s property, Section 213 deals with the establishment of the right as executor or legatee under a Will. These two Rules can be stated as follows : (i) without first & ORS.
obtaining letters of administration from a Court of competent jurisdiction, no right to any property of a person other than a Hindu, Muhammadan, Buddhist, Sikh, Jaina, Indian Christian or Parsi, who has died intestate, can be established in any court of justice; (ii) no right as executor or legatee under a Will (other than a Will made by a Muhammadan or Indian Christian) can be established in any Court of justice unless probate of the Will or letters of administration with the Will annexed, has been granted by a court of competent jurisdiction. But the second Rule which is found in Section 213, is applicable only: (i) in the case of Wills made by any Hindu, Buddhist, Sikh or Jaina, if those Wills are of the 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 Amendment Act 16 of 1962, if such Wills are made within the local limits of the ordinary original civil jurisdiction of the High Courts at Calcutta, Madras and Bombay and in case such Wills have been made outside those limits, in so far as they relate to immovable property situate within those limits. [Paras 31-34][895-G; 896-C; 897-B-E]
1.4 A cumulative reading of Sections 57, 213 and 264 would show: (i) that a person claiming to be an executor or legatee under a Will cannot rely upon the Will, in any proceeding before a Court of justice, unless he has obtained probate (if an executor has been appointed) or letters of administration with the Will annexed, if such a Will has been executed by certain classes of persons; and (ii) that the jurisdiction to grant probate or letters of administration vests only in courts located within the towns of Calcutta, Madras or Bombay and the Courts in any local area notified by the State Government in the Official Gazette. Therefore, what follows is that: (i) unless the testator belongs to any of the classes of persons specified in the Act; and (ii) unless the Will is made or some of the properties covered by the Will are located, within the local limits of a notified area, there is no necessity for an executor or a legatee under a Will to seek probate or letters of administration. The decision in Balbir Singh Wasu did not take note of the bar under Section 264(2) when it opined in general terms in Paragraph 5 of the judgment that “We do not read Section 213 as prohibiting the executor for applying for probate as a matter of prudence or convenience to the courts in other parts of the country not covered by Section 213”. [Paras 35, 36][897-F-H; 898-A-B]
Balbir Singh Wasu vs. Lakhbir Singh & Others (2005)
12 SCC 503 – referred to.
1.5 By virtue of Section 213(2)(i) read with Clauses (a) and
(b) of Section 57, the mandatory requirement to seek probate or letters of administration for establishing a right as executor or legatee under a Will, is applicable only to Wills made by a Hindu, Buddhist, Sikh or Jaina within the local limits of the ordinary original civil jurisdiction of certain High Courts and to Wills made outside those territories, to the extent they cover immovable property situate within those territories. Therefore, there is no prohibition for a person whose case falls outside the purview of these provisions, from producing, relying upon and claiming a right under a Will, in any proceeding instituted by others including the other legal heirs for partition or other reliefs. [Para 37] [898-C-D]
2.1 In the case on hand, the petitioner himself proceeded
(i) first to have mutation effected in the revenue records and (ii) then to file a suit in O.S.No.72 of 2011 on the file of the Civil Judge, Senior Division, Nainital, for a decree of permanent injunction, on the basis of the very same last Will and Testament dated 06.04.2011 of his father, without seeking letters of administration. He did not think that Section 213(1) was a bar for him to establish his right as a legatee under the Will, without obtaining letters of administration. After having done so, the petitioner in T.P (C) No.970 of 2016 chose to file Testamentary Case No.01 of 2019 after 8 years of first shooting a claim under the Will and that too after the vacation of the stay of further proceedings in the partition suit by order dated 09.10.2018. Therefore, the petitioner in T.P (C) No. 970 of 2016 cannot be allowed to make this Court a fait accompli. [Paras 38, 39] [898-E-G]
2.2 The partition suit, which is pending on the file of the District Court, Saket is 8 years old, as it was instituted on the file of the High Court of Delhi in September, 2012 and was transferred to the District Court in 2016. The written statement in the said & ORS.
suit was filed by Major ‘RN’ way back in November, 2012, when the suit was pending in the High Court of Delhi. In the written statement, the petitioner has pleaded the execution of the disputed Will. Therefore, Major ‘RN’ was convinced that there was no bar for him to establish his right as a legatee under the will, even without first obtaining letters of administration. Hence, his subsequent act of filing a testamentary case before the High Court of Uttarakhand, is nothing but a ruse to take advantage of the general proposition of law that probate proceedings are proceedings in rem and that they should have primacy. This argument is available only to a person who is disabled by virtue of Section 213(1), from relying upon a Will in any proceeding, without first obtaining probate/letters of administration. Therefore, the legal contention raised on behalf of the petitioner in T.P (C) No.970 of 2016 that the partition suit should follow the testamentary case, is rejected. Even on facts, there is no ground to order the transfer of the partition suit to the District Court, Nainital and hence, T.P (C) No. 970 of 2016 is dismissed. [Paras 40, 47][898-H; 899-A-D; 901-C]
2.3 In so far as the second transfer petition is concerned, the relief sought therein is to transfer the testamentary case pending in the High Court of Uttarakhand to the District Court, Saket, Delhi. Since the Will set up by the petitioner covers properties located both in Nainital and Delhi, both these courts have concurrent jurisdiction. But in view of Proviso (b) to Section 273, letters of administration granted by a District Court cannot have validity in respect of a property located outside the State, if its value exceeds Rs. 10,000/-. However, this problem can be resolved by ordering the transfer of the testamentary case to the High Court of Delhi and ordering the transfer of the partition suit from the District Court, Saket back to the High Court of Delhi. The partition suit be clubbed along with the testamentary proceeding and taken up together for disposal. [Paras 48, 49] [901-D-G]
Ishwardeo Narain Singh vs. Smt. Kamta Devi and Others AIR 1954 SC 280 – held inapplicable.
Chiranjilal Shrilal Goenka vs. Jasjit Singh and Others (1993) 2 SCC 507 : [1993] 2 SCR 454; T. Venkata Narayana and Others vs. Venkata Subbamma (Smt.)
(dead) & Others (1996) 4 SCC 457 : [1996] 3
SCR 1042; Smt. Rukmani Devi and Others vs. Narendra Lal Gupta (1985) 1 SCC 144; Nirmala Devi vs. Arun Kumar Gupta (2005) 12 SCC 505; Smt. Rukmani Devi and Others vs. Narendra Lal Gupta (1985) 1 SCC 144 – referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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