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(2020) 14 Supreme Court Cases 102 : 2019 SCC OnLine SC 920
In the Supreme Court of India
(BEFORE L. NAGESWARA RAO AND HEMANT GUPTA, JJ.)
KANTA YADAV . . Appellant;
Versus
OM PRAKASH YADAV AND OTHERS . . Respondents.
Civil Appeal No. 5823 of 2019† , decided on July 24, 2019
Family and Personal Laws — Succession Act, 1925 — Ss. 213 and 57 — Establishment of
right as executor or legatee in any court — Bar laid down in S. 213(1) of obtaining probate or
letters of administration in respect of will concerned, as a precondition thereof — Territorial
applicability of said bar — Principles summarised
— As per S. 213(2)(i), held, the bar under S. 213(1) does not apply, firstly, when will is
made by Hindu, Buddhist, Jaina or Sikh situate outside of territories of Bengal, Madras and
Bombay as specified in S. 57(a) — Said bar under S. 213(1) also does not apply, secondly, if the
immovable property concerned is not situate within the territories of Bengal, Madras and
Bombay as specified in S. 57(b) — In present case, will made in NCR of Delhi, and, said will
made in respect of immovable property situate in NCR of Delhi — Thus, held, bar under S. 213
(1) was not applicable
One Z was owner of certain immovable property in New Delhi. He executed a will dated 16-6-1985
and codicil dated 21-10-1995 bequeathing a self-acquired property situate in Delhi in favour of both the
parties. Z died on 4-1-1986. Two suits came to be filed : one by the present respondents bearing CS
(OS) No. 3310 of 2012 claiming declaration and permanent injunction in respect of the will and codicil
executed by Z and also will dated 18-6-2009 executed by R, wife of Z; and the other suit filed by the
present appellant bearing CS (OS) No. 430 of 2012 claiming natural succession.
The Single Judge of the High Court allowed an application under Order 7 Rule 11 CPC holding that the
suit for declaration and permanent injunction is not maintainable in view of Section 213 of the Succession
Act, 1925. The Division Bench of the High Court held that the bar under Section 213 of the Act is not
applicable and, therefore, set aside the order of rejection of plaint and directed that both the suits be
clubbed and common evidence be led together.
Issue not formulated correctly.
Dismissing the appeal, the Supreme Court
Held :
Present National Capital Region of Delhi was part of erstwhile State of Punjab prior to 1-11-1966. The
argument raised by the respondents is that Section 57 of the Act is applicable where the properties and
parties are situated in the territories of Bengal, Madras or Bombay, therefore, it is not necessary to seek
probate or letter of administration in respect of properties or the persons when they are not located in
the States of Bengal, Madras or Bombay.
(Para 5)
Page: 103
The statutory provisions are clear that the Succession Act is applicable to wills and codicils made by
any Hindu, Buddhist, Sikh or Jain, who were subject to the jurisdiction of the Lieutenant Governor of
Bengal or within the local limits of the ordinary original civil jurisdiction of the High Courts of Madras or
Bombay — [clause (a) of Section 57 of the Act]. Secondly, it is applicable to all wills and codicils made
outside those territories and limits so far as relates to immovable property within the territories
aforementioned — Clause (b) of Section 57. The clause (c) of Section 57 of the Act relates to the wills
and codicils made by any Hindu, Buddhist, Sikh or Jain on or after the first day of January, 1927, to which
provisions are not applied by clauses (a) and (b). However, sub-section (2) of Section 213 of the Act
applies only to wills made by Hindu, Buddhist, Sikh or Jain where such wills are of the classes specified in
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clauses (a) or (b) of Section 57. Thus, clause (c) is not applicable in view of Section 213(2) of the Act.
(Para 11)
A combined reading of Sections 213 and 57 of the Succession Act would show that where the parties
to the will are Hindus or the properties in dispute are not in territories falling under Sections 57(a) and (b),
Section 213(2) of the Succession Act applies and Section 213(1) has no application. As a consequence, a
probate or letters of administration will not be required to be obtained by a Hindu in respect of a will made
outside those territories or regarding the immovable properties situate outside those territories.
(Paras 10 and 12)
Clarence Pais v. Union of India, (2001) 4 SCC 325, followed
Om Prakash Yadav v. Kanta Yadav, 2017 SCC OnLine Del 6961 : (2017) 238 DLT 63, affirmed
Ram Chand v. Sardara Singh, 1961 SCC OnLine P&H 233 : AIR 1962 P&H 382 : PLR (1962) 64 P&H
265; Behari Lal Ram Charan v. Karam Chand Sahni, 1966 SCC OnLine P&H 226 : AIR 1968 P&H 108;
Winifred Nora Theophilus v. Lila Deane, 2001 SCC OnLine Del 644 : AIR 2002 Del 6; Rajan Suri v.
State, 2005 SCC OnLine Del 1290 : AIR 2006 Del 148, approved
Sohan Singh v. Bhag Singh, 1934 SCC OnLine Lah 183 : AIR 1934 Lah 599; Radhe Lal v. Ladli Parshad,
CR No. 340-D of 1965, order dated 24-8-1965 (P&H), held, approved
Om Parkash Yadav v. Kanta Yadav, 2016 SCC OnLine Del 6613 : (2016) 228 DLT 591, reversed
Kesar Singh v. Tej Kaur, 1961 SCC OnLine P&H 71 : PLR (1961) 63 P&H 473, held, overruled
Ganshamdoss Narayandoss v. Gulab Bi Bai, 1927 SCC OnLine Mad 158 : ILR (1927) 50 Mad 927; Hem
Nolini Judah v. Isolyne Sarojbashini Bose, AIR 1962 SC 1471, cited
RM-D/62887/SV
Advocates who appeared in this case:
Jugal Wadhwa, Rishabh Wadhwa, Chirag Joshi and Ghanshyam Joshi, Advocates, for the
Appellant;
Syed Hasan Isfahani, Anup Jain, Ms Mahima Gupta and Vivek Jain, Advocates, for the
Respondents.
Chronological list of cases cited on page(s)
1. 2017 SCC OnLine Del 6961 : (2017) 238 DLT 63, Om Prakash
Yadav v. Kanta Yadav 104c, 109
2. 2016 SCC OnLine Del 6613 : (2016) 228 DLT 591, Om Parkash
Yadav v. Kanta Yadav (reversed) 104c-d
3. 2005 SCC OnLine Del 1290 : AIR 2006 Del 148, Rajan Suri v.
State 108a, 108a-b
4. (2001) 4 SCC 325, Clarence Pais v. Union of India 108c, 109a-b
Page: 104
5. 2001 SCC OnLine Del 644 : AIR 2002 Del 6, Winifred Nora
Theophilus v. Lila Deane 107
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6. 1966 SCC OnLine P&H 226 : AIR 1968 P&H 108, Behari Lal Ram
Charan v. Karam Chand Sahni 106d-e, 108a-b
7. CR No. 340-D of 1965, order dated 24-8-1965 (P&H), Radhe Lal v.
Ladli Parshad 107
8. AIR 1962 SC 1471, Hem Nolini Judah v. Isolyne Sarojbashini Bose 106
9. 1961 SCC OnLine P&H 233 : AIR 1962 P&H 382 : PLR (1962) 64
P&H 265, Ram Chand v. Sardara Singh 105g, 107a-b, 107
10. 1961 SCC OnLine P&H 71 : PLR (1961) 63 P&H 473, Kesar Singh
v. Tej Kaur (held, overruled) 106a, 107a, 107b-c
11. 1934 SCC OnLine Lah 183 : AIR 1934 Lah 599, Sohan Singh v.
Bhag Singh 107d, 107d-e
12. 1927 SCC OnLine Mad 158 : ILR (1927) 50 Mad 927,
Ganshamdoss Narayandoss v. Gulab Bi Bai 106a-b, 107b-c
The Judgment of the Court was delivered by
HEMANT GUPTA, J.— Leave granted. Challenge in the present appeal is to an order
passed by the Division Bench of the Delhi High Court on 13-2-20171 whereby an intra-
court appeal against the order dated 14-3-20162 passed by the learned Single Bench was
accepted. The learned Single Bench allowed an application under Order 7 Rule 11 of the
Code of Civil Procedure, 1908 holding that the suit for declaration and permanent
injunction is not maintainable in view of Section 213 of the Succession Act, 1925 (for
short “the Act”).
2. The brief facts leading to the present appeal are that one Zorawar Singh was owner
of certain immovable property in New Delhi. He executed a will dated 16-6-1985 and
codicil dated 21-10-1985 bequeathing a self-acquired property in favour of both the
parties. Zorawar Singh died on 4-1-1986. Two suits came to be filed; one by the present
respondents bearing CS (OS) No. 3310 of 2012 claiming declaration and permanent
injunction in respect of the will and codicil executed by Zorawar Singh and also will dated
18-6-2009 executed by Smt Ram Pyari, wife of Zorawar Singh; and the other suit filed by
the present appellant bearing CS (OS) No. 430 of 2012 claiming natural succession.
3. The Division Bench of the High Court held that the bar under Section 213 of the Act
is not applicable and, therefore, set aside the order of rejection of plaint and directed that
both the suits be clubbed and common evidence be led together.
4. The short question to be examined is whether it is necessary to seek probate or letter
of administration in respect of a will in terms of Section 213 of the Act in the National
Capital Region of Delhi.
5. It is undisputed that the present National Capital Region of Delhi was part of
erstwhile State of Punjab prior to 1-11-1966. The argument raised by the respondents is
that Section 57 of the Act is applicable where the properties and parties are situated in the
territories of Bengal, Madras or Bombay, therefore, it is not necessary to seek probate or
letter of administration in respect of
Page: 105
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properties or the persons when they are not located in the States of Bengal, Madras or
Bombay. To examine the said question, certain statutory provisions are relevant to quote
hereunder:
“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 wills made by Muhammadans, and
shall only apply—
(i) in the case of wills 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 (16 of 1962) where such wills are made
within the local limits of the ordinary original civil jurisdiction of the High Courts at
Calcutta, Madras and Bombay, and where such wills are made outside those limits,
insofar as they relate to immovable property situated within those limits.”
“57. Application of certain provisions of this 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; and
(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.”
6. The said provisions have been examined and come up for consideration time and
again before the Punjab and Haryana High Court and the Delhi High Court. In Ram Chand
v. Sardara Singh3 , the Punjab High Court held as under : (SCC OnLine P&H : AIR p. 388,
paras 5-7)
“5. The clear effect of these provisions appears to be that the provisions of Section
213(1) requiring probate do not apply to wills made outside Bengal and the local
original jurisdictional limits of the High Courts at
Page: 106
Madras and Bombay except where such wills relate to immovable property situated within
those territories.
6. There remains to be considered the decision4 of Shamsher Bahadur, J., in the case
mentioned above, which is apparently based on the decision of a Full Bench in
Ganshamdoss Narayandoss v. Gulab Bi Bai5 . I find, however, on perusing this judgment
that what has been held is that a defendant resisting a claim made by the plaintiff as
heir-at-law cannot rely in defence on a will executed in his favour at Madras in respect
of property situate in Madras, when the will is not probated and no letters of
administration with the will annexed have been granted. This is clearly in accordance
with the provisions of Sections 213 and 57(a) of the Act, and the only point on which
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the matter was referred to the Full Bench was whether a will could be set up in defence
in a suit without probate.
7. As I have said the clear reading of the provisions of the Act leave no doubt
whatever that no probate is necessary in order to set up a claim regarding property
either movable or immovable on the basis of a will executed in the Punjab and not
relating to property situated in the territories mentioned in Section 57(a). I accordingly
accept the revision petition and set aside the order of the lower court requiring the
petitioner to obtain probate. The matter may now be disposed of by the lower court,
where the parties have been directed to appear on 4-12-1961. The parties will bear
their own costs in this Court.”
7. The said view was affirmed by the Division Bench of the Punjab and Haryana High
Court in Behari Lal Ram Charan v. Karam Chand Sahni6 : (SCC OnLine P&H)
“3. From a bare perusal of these two sections it is apparent that the objection of
Defendant 1 on the preliminary issue raised by him in the trial court was without any
substance. Clause (a) of Section 57 read with sub-section (2) of Section 213, it would
appear, applies to those cases where the property and parties are situate in the
territories of Bengal, Madras and Bombay, while clause (b) applies to those cases where
the parties are not residing in those territories but the property involved is situate
within those territories. Clause (c) of Section 57, however, is not relevant for the
present purposes. Therefore, where both the person and property of any Hindu,
Buddhist, Sikh or Jaina, are outside the territories mentioned above, the rigour of
Section 213, sub-section (1), is not attracted. Reference was made by the learned
referring Judge to a decision of the Supreme Court in Hem Nolini Judah v. Isolyne
Sarojbashini Bose7 , but the parties in that case were Christians (to whom it is agreed
Section 57 does not apply) and their Lordships only considered the implications of sub-
section (1)
Page: 107
of Section 213 of the Act and not of sub-section (2) of that section read with Section 57
clauses (a) and (b). The learned Single Judge probably felt the difficulty because of the
view taken by Shamsher Bahadur, J. In Kesar Singh v. Tej Kaur4 , but that judgment was
considered by Falshaw, J. (as he then was) in Ram Chand v. Sardara Singh3 , who differed
from the view taken by Shamsher Bahadur, J., in the abovementioned case, holding that
no probate was necessary in order to set up a claim regarding property either movable or
immovable on the basis of a will executed in the Punjab and a succession certificate could
be granted on the ground of a will without obtaining probate. While referring to the
decision of Shamsher Bahadur, J., in Kesar Singh case4 , Falshaw, J., observed that the
view taken by Shamsher Bahadur, J., was apparently based on the decision of a Full Bench
in Ganshamdoss Narayandoss v. Gulab Bi Bai5 where it was held that a defendant resisting
a claim made by the plaintiff as heir-at-law could not rely in defence on a will executed in
his favour at Madras in respect of property situate in Madras, when the will was not
probated and no letters of administration with the will annexed had been granted. The
Madras case was clearly in accordance with Section 213 read with Section 57 of the Act.
We agree with the view taken by Falshaw, J., in Ram Chand case3 . A similar view was
expressed by Jai Lal, J., in Sohan Singh v. Bhag Singh8 , and by me in Radhe Lal v. Ladli
Parshad9 . Even a cursory glance at Sections 213 and 57 of the Act leaves no room for
doubt that the view taken by Shamsher Bahadur, J., in the case mentioned above was
erroneous. It appears that the case of Sohan Singh v. Bhag Singh8 , referred to above, was
not brought to his notice.”
8. In Winifred Nora Theophilus v. Lila Deane10 , a Single Bench of the Delhi High Court
held as under : (SCC OnLine Del para 11)
“11. On interpretation of Section 213 read with Sections 57(a) and (b), the Courts
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opined that where the will is made by Hindu, Buddhist, Sikh and Jaina and were
subject to the Lt. Governor of Bengal or within the local limits of ordinary, original civil
jurisdiction of High Courts of Judicature at Madras and Bombay or even made outside
but relating to immovable property within the aforesaid territories that embargo
contained in Section 213 shall apply. From this it stands concluded that if will is made
by Hindu, Buddhist, Sikh or Jaina outside Bengal, Madras or Bombay then embargo
contained in Section 213 shall not apply. This is what the various judgments cited by
the learned counsel for the defendants decide.
Page: 108
Therefore, there is no problem in arriving at the conclusion that if the will is made in Delhi
relating to immovable property in Delhi by Hindu, Buddhist, Sikh or Jaina, no probate is
required.”
9. The Division Bench of the Delhi High Court in Rajan Suri v. State11 referred to the
Division Bench judgment in Behari Lal6 case and certain other Single Bench judgments of
the Delhi High Court to conclude as under : (Rajan Suri case11 , SCC OnLine Del para 33)
“33. The result of the aforesaid is that complete line of judgments referred by the
learned counsel for the petitioner in support of the submission that probate is
mandatory would have no application to the facts of the present case and thus findings
arrived at in the collateral proceedings in the suit to which the petitioners were parties
would bind the petitioners.”
10. The learned counsel for the respondents also referred to the Supreme Court
judgment in Clarence Pais v. Union of India12 wherein, validity of Section 213 of the Act
was challenged as unconstitutional and discriminatory against the Christians. This Court
held as under : (SCC p. 332, para 6)
“6. … A combined reading of Sections 213 and 57 of the Act would show that where
the parties to the will are Hindus or the properties in dispute are not in territories falling
under Sections 57(a) and (b), sub-section (2) of Section 213 of the Act applies and sub
-section (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 outside those territories or regarding the
immovable properties situate outside those territories. The result is that the contention
put forth on behalf of the petitioners that Section 213(1) of the Act is applicable only to
Christians and not to any other religion is not correct.”
11. The statutory provisions are clear that the Act is applicable to wills and codicils
made by any Hindu, Buddhist, Sikh or Jain, who were subject to the jurisdiction of the
Lieutenant Governor of Bengal or within the local limits of the ordinary original civil
jurisdiction of the High Courts of Madras or Bombay — [clause (a) of Section 57 of the Ac].
Secondly, it is applicable to all wills and codicils made outside those territories and limits
so far as relates to immovable property within the territories aforementioned, clause (b) of
Section 57. Clause (c) of Section 57 of the Act relates to the wills and codicils made by
any Hindu, Buddhist, Sikh or Jain on or after the first day of January, 1927, to which
provisions are not applied by clauses (a) and (b). However, sub-section (2) of Section 213
of the Act applies only to wills made by Hindu, Buddhist, Sikh or Jain where such wills are
of the classes specified in clauses (a) or (b) of
Page: 109
Section 57. Thus, clause (c) is not applicable in view of Section 213(2) of the Act.
12. In view thereof, the wills and codicils in respect of the persons who are subject to
the Lieutenant Governor of Bengal or who are within the local limits of ordinary original
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civil jurisdiction of the High Court of Madras or Bombay and in respect of the immovable
properties situated in the above three areas. Such is the view taken in the number of
judgments referred to above in the States of Punjab and Haryana as well as in Delhi as
also by this Court in Clarence Pais12 .
13. In view of the above, we do not find any error in the judgment passed by the
Division Bench1 of the Delhi High Court. Consequently, the appeal is dismissed.
———
†
Arising out of SLP (C) No. 19096 of 2017. Arising from the Judgment and Order in Om Prakash Yadav v. Kanta
Yadav, 2017 SCC OnLine Del 6961 : (2017) 238 DLT 63 [Delhi High Court, RFA (OS) No. 35 of 2016, dt. 13-2-2017]
1 Om Prakash Yadav v. Kanta Yadav, 2017 SCC OnLine Del 6961 : (2017) 238 DLT 63
2
Om Parkash Yadav v. Kanta Yadav, 2016 SCC OnLine Del 6613 : (2016) 228 DLT 591
3
Ram Chand v. Sardara Singh, 1961 SCC OnLine P&H 233 : AIR 1962 P&H 382 : PLR (1962) 64 P&H 265
4
Kesar Singh v. Tej Kaur, 1961 SCC OnLine P&H 71 : PLR (1961) 63 P&H 473
5
Ganshamdoss Narayandoss v. Gulab Bi Bai, 1927 SCC OnLine Mad 158 : ILR (1927) 50 Mad 927
6
Behari Lal Ram Charan v. Karam Chand Sahni, 1966 SCC OnLine P&H 226 : AIR 1968 P&H 108
7
Hem Nolini Judah v. Isolyne Sarojbashini Bose, AIR 1962 SC 1471
8
Sohan Singh v. Bhag Singh, 1934 SCC OnLine Lah 183 : AIR 1934 Lah 599
9
Radhe Lal v. Ladli Parshad, CR No. 340-D of 1965, order dated 24-8-1965 (P&H)
10
Winifred Nora Theophilus v. Lila Deane, 2001 SCC OnLine Del 644 : AIR 2002 Del 6
11
Rajan Suri v. State, 2005 SCC OnLine Del 1290 : AIR 2006 Del 148
12
Clarence Pais v. Union of India, (2001) 4 SCC 325
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