2019 INSC 0598 Page 1 of 9 REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO . 5823 OF 2019 (A RISING OUT OF S LP (C IVIL ) N O. 19096 OF 20 17 ) KANTA YADAV .....APPELLANT(S) VERSUS OM PRAKASH YADAV & ORS. .....RESPONDENT(S) J U D G M E N T HEMANT GU PTA , J. Leave granted. 2) Challenge in the present appeal is to an order passed by the Divis ion Bench of Delhi High Court on February 13, 2017 whereby an intra court appeal ag ainst th e order dated March 14, 2016 passed by the learn ed Sin gle 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 maintai nable in view of Section 213 of the India n Su ccess ion A ct, 1925 1. 1 for short, ‘Act ’ Page 2 of 9 3) The brief facts leading to the pres ent appeal are that one Zorawar Singh was owner of certain immov eable property in New Del hi. He executed a W ill dated June 16, 1985 and codicil dated October 21, 19 95 bequeathing a self -acqu ired prop erty in favour of both the parties. Zorawar Singh died on January 4, 1986. Two suits came to be filed ; one by the present respondents bearing CS (OS) No. 3310 of 2012 claiming dec laration and permanent injunction in respect of the W ill and codic il e xecut ed by Zorawar Singh and also will dated June 18, 2009 executed by Smt. Ram Pya ri, wife of Zorawar Singh ; and the other suit filed by the present ap pellant bearing CS ( OS) No. 430 of 2012 clai ming natural succession. 4) The Divisi on Bench of the Hi gh 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 clu bbed and common evidence be led tog ether. 5) The s hort question to be examined is wh ethe r it is n ecessary to seek probate or letter of administration in respect of a W ill in terms of Section 213 of the Act in the National Capital Region of Delhi. 6) It is undisputed that the present National Capital Region Delhi was part of erstwhile State of P unjab p rio r to November 1, 1966. Th e argument raised by the respondents is that Sec tion 57 of the Act is applicable where the propert ies and parties are situated in the Page 3 of 9 territories of Bengal, Madras or Bombay, therefore, it is not necessary to seek pr obat e or lette r of administration in res pect of pr operties or the person s when they are not located in the State s of Bengal, Madras or Bombay. To examine the said question, certain statutory provisions are relevant to quote hereunder : “Section 213 - Right as executor or legatee when esta blished. -(1) No right as execu tor or legatee can be established in any Court of Justice, unless a Court of competent jurisdiction in India has granted probate of the W ill under which the right is claimed, or has granted let ters of administration with the W ill or with a copy of an authe nticated copy of the W ill annexed. (2) This section shall not apply in the case of W ills made by Muhammadans, and shall only apply - (i) in the case of W ills made by any Hindu, Buddhist, Sikh or Jaina where such W ills are of the classes specified in clau ses (a) and (b) of section 57; and (ii) in the case of W ills made by any Parsi dying, after the commencement of the Indian Succession (Amendment) Act, 1962 (16 of 1962.) where such W ills are made within the local limits of t he [ordinary original civil ju risdiction] of the High Courts at Calcutta, Madras and Bombay, and where such W ills are made outside those limits, in so far as they relate to immovable property situate d within those limits.] Section 57 – Applicati on of cert ain provisions of Part to a cl ass of W ills 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, a pply - (a) to all W ills and codicils made by any Hindu , Buddhist, Sikh or Jaina on o r 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 civ il jurisdiction of the High Court s of Judicature at Page 4 of 9 Madras and Bombay; and (b) to all such W ills and codicils made outside those territories and limits so far as relates to immoveable property situate within those territories or limit s; and (c) to all Wi lls and codicils made by any Hi ndu, Buddhist, Sikh or Jaina o n 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 W ill or cod icil. ” 7) The s aid prov isions have been examin ed and com e up for consideration time an d again before the Punjab and Haryana High Court and Delhi Hi gh Court. In Ram Chand v. Sardara Singh & Ors. 2, the Punjab High Court held as under: “4. …The clear effect of these provisions ap pears to be that the pr ovisions o f section 213(1) requiring probate do not apply to wills made outside Bengal and the local original jurisdictional limits of the High Courts at Madras and Bombay except where s uch wills relate to immovable property situated within those territori es . 5. There remains to be considered the decision of Shamsher Bahadur, J., in the case mentioned above, which is apparently based on the decision of a Full Bench in Ganshamdoss Narayando ss v. Gulab Bi Ba i, [ I.L.R. 50 Mad. 927.] . I find, however, on pe rusing thi s 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 probate d and no l etters of administration with the will ann exed 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 whi ch the matter was referred to the Full Bench was whether a will cou ld be set up in defence in a suit without probate . 2 AIR 1962 P&H 382 Page 5 of 9 6. 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 o r immovable on the basi s of a wil l 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 th e lower Court requiring the petitioner to obtain probate. The ma tter may n ow be disposed of by the lower Court, wher e the parties have been directed to appear on the 4th of December, 1961. The parties will bear their own costs in this Court .” 8) The s aid view was affirmed by the Divis ion Bench of P unjab and Haryana High Court in M /s. Behari Lal Ram Charan v. Karam Chand Sahni & Ors. 3: “3. From a bare perusal of these t wo sections it is apparent that the objection of defendant No. 1 on the preliminary issue raised by him in the trial Court was witho ut any substance. Claus e (a) of s ection 57 read with sub -section (2) of section 213, it would appear, applies to t hose 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 residi ng in those territories but the property involved is situate within those territo ries. Clau se (c) of section 57, however, is not relevant for the present purposes. Therefore, where both the person and property of any Hindu, Budhist, Sikh or Jaina , are outs ide the territories mentioned above, the rigour of section 213, sub -section (1), is not att racted. Reference was made by the learned referring Judge to a decision of the Supreme Court in Mrs. Hem Nolin i v. Mrs. Isolve Saroj bashini Bos e, AIR 1962 Supreme Co urt 1471, but the parties in that case were Christians (to whom it is agreed sec tion 57 doe s not apply) and their Lordships only considered the implications of sub -section (1) of section 213 of the Act and not of sub -secti on (2) of that section read with section 57 clauses (a) and (b). The learned Single Judge probably felt the diffic ulty becaus e 3 1968 AIR (Punjab) 108 Page 6 of 9 of the view taken by Shamsher Bahadur, J. In Kesar Singh and other s v. Tej Kau r, 1961 P.L.R. 473 , but that judgment was considere d by Falshaw, J. (as he then was) in Ram Chan d v. Sardara Sing h, 1962 P.L.R. 265 , who differed from the view taken by Shamsher Bahadur, J., in the above -mentioned case, holding that no probate was necessary in order to set up a claim regarding property eit her movable or immovabl e on t he b asis of a will executed in the Punjab and a succession certificate could be grant ed on the ground of a will without obtaining probate. While referring to the decision of Shamsher Bahadur, J., in Kesar Singh's cas e, Falshaw, J., observed that the view t aken by Shamsher Bahadur, J., was apparently based on the decision of a Full Bench in Ganshomdas s v. Gulab Bi Ra i, ILR 50 Madras 927 where it was held that a defendant resisting a claim made by the plaintiff as heir -at -law coul d not rely in defence o n a will e xecuted in his favour at Madras in respect of property situate in Madras, when th e will was not probated and no letters of admi nistration with the will annexed had been granted. The Madras cas e was clearly in accordance wit h section 213 read with section 57 of the Act. We agree with the view taken by Falshaw, J., in Ram Chand's cas e. A similar view was expressed by Jai Lal, J., in Sohan Sing h v. Bhag Sing h, AIR 1934 Lahore 599 , and by me in C.R. 340 -D/1965 (Radhe La l v. Ladl i Parsha d) decided on 2 4th August , 1965. Even a cursory glance at sections 213 and 57 of the Act leaves no room fo r doubt that the view taken by Shamsher Bahadur, J., in the case mentioned above was erroneous. It appears that the case of Sohan Sing h v. Bha g Sing h (supra) , referr ed to abov e, was not brought to his notice .” 9) In Mrs. Winifred Nora Theophilus v. Mr. Lila Deane & Ors. 4, a Single Bench of Delh i High Court held as under: “11. On interpretation of Section 213 read with Section 57 (a) and (b), the C ourts have opined that where the will is made by Hindu, Buddhist, Sikh and Jaina and were subject to the Lt. Gover nor of Bengal or within the local limits of ordinary, original civil jurisdiction of High Courts of Judicature at Madras and 4 AIR 2002 Delhi 6 Page 7 of 9 Bombay or even ma de outside but relating to immova ble property within the aforesaid territories that embargo contained in Section 2 13 shall apply. From this it stands concluded that if will is made by Hindu, Buddhist, Sikh or Jain a outside Bengal, Madras or Bombay then emb argo contained in Secti on 213 sha ll not apply. This is what the various judgments cited by the learned counsel for the defendants decide. Therefore , there is no problem in arriving at the conclusion that if the wil l is made in Delhi relating to immovable p roperty in Delhi by Hin du, Buddhi st, Sikh or Jaina, no probate is required .” 10) The Division Bench of Delhi High Cou rt in Shri Rajan Su ri & Anr. v. The State & Anr. 5 referred to the Division Bench judgment in Behari Lal ’s case and certain other Sing le Bench judgments of Delhi High Court to co nclude as under: “33. The result of the aforesaid is that complete line of judg ment referred by the learned counsel for the petitioner in support of the submi ssion that probate is mandatory would have no application to th e facts of the present case and t hus findings arrived at in the collateral proceedings in the suit to which the pe titioners were parties would bind the petitioners .” 11) Learned counsel for the respondents also r eferred to the Supreme Court judgment in Claren ce Pais & Ors. v. Union of India 6 wherein, validity of Section 213 of the Ac t was challenged as unconstitutional a nd discriminatory against the Christians . T his Court held as under: “6. … A combined reading of Sec tions 213 and 57 of the Act would show that where the parties to t he will ar e Hindus or the properties in dispute are not in territories falling under Sections 57 (a) and (b), sub -section (2) of 5 AIR 2006 D elhi 48 6 (20 01) 4 SCC 325 Page 8 of 9 Section 213 of the Act applies and sub -section (1) has no application. As a consequence, a probate will n ot be required to be ob tained by a Hindu in respect of a will made outside those territories or regarding th e immovable propertie s 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 applic able only to Christians and not to any other religion is not correct .” 12) The statutory provisions are clear that the Act is applicable to W ills and codicils made by any Hindu, Bu ddhist, Sik h or Jai n, who were subject to the jurisdicti on of the Lieutenant -Go vernor of Bengal or within the local limit s of the ordinary original civil jurisdict ion of the High Court s of Madras or Bom ba y - {clause (a) of Section 57 of the Act }. Secondly, it is applicable to all Wills and codicils made outsid e those territories and limits so far as relate s to immoveable pr operty within the territories aforementione d - 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 J anuar y, 1927, to which provisions are not applied by cla uses (a) and (b). However, sub -section (2) of Sectio n 213 of the Act applies only to Wills made by Hindu, Buddhist, Sikh or Jain where such Wills are of the classes specif ied in clauses (a) or ( b) of Sect ion 57. Thus , clause (c) is not applicable in view of Section 213(2) of the Act. 13) In view thereof, the Wills and codicils in respect of the persons who are subject to the Lieutenant -Governor of Bengal or who are w ithin Page 9 of 9 the local limits of ordina ry origin al civil jurisd iction of High Court of Madras or Bombay and in re spect of the immoveable propert ies situated in the above three areas. Such is the view taken in the number of judgments refer red to above in the States of P unjab and Harya na as well as in Delhi as also by th is Court in Clarence Pais . 14) In view of the above, we do not find any error in the judgment passed by the Division Bench of the Del hi High Court . Consequently, the appea l is dismissed. ................. .... ............... ...... ...J. (L. NAGESW ARA RAO ) ..... ................. ................ .......J . (HEMANT GUPTA ) NEW DELHI; JUL Y 24 , 201 9.