Civil Revision Application No.545 of 1989

15th January, 1999

Petitioner Counsel: SHRI S.C. BORA
Respondent Counsel: SHRI V.J. DIXIT

JUDGMENT

JUDGMENT :- This Civil Revision Application is directed against the order dated 15.6.1989 passed by the learned II joint Civil Judge, J.D. Jalgaon in R.C.S. No.553 of 1985 below Exhibit 120.

2. The respondent No.1 has filed regular Civil Suit No.553 of 1985 in respect of the property bearing C.T.S. No.1697/B/12 Municipal House No.291 admeasuring 46.44 Sq. Mtrs. This was the property initially owned by one Jayabai who had expired on 20th July, 1985 at Jalgaon. The present petitioner is the tenant alongwith other tenants. This property has been bequeathed by deceased Jayabai to the respondent plaintiff by Will-deed dated 29.1.1985 and after her death the respondent-plaintiff claims that he has become the owner of the said property on the basis of the said Will-deed and therefore, the plaintiff has filed the suit for the reliefs claimed in the suit

3. The defendant-petitioner has filed an application at Exh.125 contending that in view of the provisions of Section 213 of the Indian Succession Act, 1925 the suit filed by the respondent-plaintiff is not tenable unless the probate of the Will and/or letters of administration with a will annexed or with an authenticated copy of the will annexed is obtained by the respondent-plaintiff.

4. Mr. Bora, learned counsel, appearing for the petitioner-original defendant states that in view of the provisions of Section 213 read with Section 57 (A) and (B) of the Indian Succession Act, 1925, the suit filed by the plaintiff is not tenable in law. The said proposition is opposed by Mr. V.J. Dixit, learned counsel appearing for the respondent. With the help of the learned counsel, Section 213 and 57 of the Act were perused and on analysis, Section 213 lays down that 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. Sub-section (2) lays down that the said section shall not apply in the case of wills made by Muhammadan and shall apply only (1) in case of wills made by the Hindu, Buddhist, Sikh or Jaina where such wills are of the classes specified in clauses (a) and (b) of Section 57 (rest of the section is not necessary for the decision of this revision) therefore not reproduced.

5. Thus on analysis of this section, it becomes clear that sub-section (1) of section 213 applies to those wills which are made by Hindu, Buddhist, Sikh or Jaina if they fall in clauses (a) and (b) of Section 57 of the Indian Succession Act, 1925 and therefore as a necessary consequence the inference follows that those Wills which are not covered as specified in clauses (a) and (b) of Section 57 are not covered under section 213 and in respect of those Wills, the probate and/or letters of administration as stated in section is not required.

6. Section 57 states that the provisions of this part which are set out in schedule III shall, subject to 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.

7. For the decision of this Civil Revision Application it is not necessary to consider the clause (a) of Section 57 because Section 213 makes a reference to only classes of wills which are covered by clause (a) and (b) of Sec.57 for which the probate or letters of administration is required as provided in the said section. Clause (a) points out the territories which are within the jurisdiction of 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 are concerned. So far as Bombay is concerned it is within the ordinary original civil jurisdiction of the High Court of Judicature of Bombay. The learned counsel for the parties fairly admit that Jalgaon District is not within the ordinary original civil jurisdiction of the High Court of Judicature of Bombay, because in view of the provisions of Civil Courts Act 1869, the ordinary original Civil jurisdiction of the Jalgaon District lies with the District Judge Jalgaon. So far as clause (b) is concerned, it lays down that wills which are in respect of the immovable properties which are situated within those territories or limits covered under clause (a) but are executed outside the said territorial limits. That means any will in respect of the properties which are located or situated within the ordinary original civil jurisdiction of the High Court of Judicature of Bombay but have been executed out of the said jurisdiction is covered under section 213.

8. As observed earlier, Jalgaon District is not covered under clause (a) and therefore naturally the clause (b) will not apply. Thus, on final analysis neither clause (a) nor clause (b) of section 57 of the Indian Succession Act applies, and therefore, in the result section 213 of the Indian Succession Act, 1925 is not applicable to the wills which are executed in respect of the properties located within the Jalgaon District as far as the present matter is concerned.

9. In the result, the objection taken by the petitioner that the suit is not tenable in view of the provisions of Section 213 of the Indian Succession Act is not sustainable in law and the trial court has rightly analysed and rejected the application Exh.120. The said order is hereby confirmed. Civil Revision Application is without any merits. It is hereby rejected. Rule discharged. Interim relief, if any, stands vacated. In the facts and circumstances of the case, there shall be no order as to costs.

Revision dismissed.