Sunday, 3 March 2019

When will executed without probate is not admissible in evidence?

 The Trial Court has, therefore, not erred in rejecting the application of the petitioner under Section 65 of the Evidence Act as the basic document namely; Will executed in Calcutta sans a probate is not admissible in evidence hence, its photostat copy/secondary evidence cannot be tendered in evidence.

IN THE HIGH COURT OF RAJASTHAN

S.B. Civil Writ No. 1263 of 2018

Decided On: 06.10.2018

Kamal Kumar  Vs. Ankit Kumar and Ors.

Hon'ble Judges/Coram:
Dinesh Mehta, J.

Citation: AIR 2019 Raj 19.


1. Feeling aggrieved with the order dated 12.1.2018 passed by Additional District Judge, Churu camp Sardar Sahar (hereinafter referred to as the 'Trial Court') whereby the learned Court below has rejected an application under Section 65 of the Indian Evidence Act. Petitioner has invoked supervisory jurisdiction of this Court under Article 227 of the Constitution of India.

2. The facts relevant are that Vimla Devi executed a Will in favour of defendant No. 1, the petitioner herein. The said Will was admittedly executed in Calcutta though it related to properties situated in Rajasthan, which are the subject-matter of the suit proceedings. During pendency of suit, the petitioner filed a photostat copy of the said Will dated 26.3.1994 executed by Vimla Devi and submitted an application dated 5.12.2017 under Section 65 of the Evidence Act seeking leave to produce secondary evidence. The respondents opposed the said application and after hearing contentions of rival parties, the Trial Court rejected the said application vide its order dated 12.1.2018, subject-matter of the present writ petition. While rejecting the application, the Trial Court held that original document viz; Will is inadmissible in evidence, hence permission to lead secondary evidence on the basis of its photostat copy cannot be granted. While holding that the Will in question was inadmissible, the Trial Court adopted a reasoning that the Will having been executed in Calcutta requires a probate for assertion of rights arising from such Will.

3. Though the petitioner had filed an application under Section 65 of the Evidence Act for leading secondary evidence by way of a photostat copy of the Will, but the Trial Court rejected the application holding that the permission to lead evidence on the basis of photostat copy cannot be given.

4. Mr. Jain - learned counsel for the petitioner submitted that as the disputed property is situated in Rajasthan, there is no requirement of probate, as held by this Court in the following judgments:

(i) Sultan Singh v. Brijraj Singh, reported in 1997 (1) WLC (Raj) 368.

(ii) Mst. Jadav v. Ram Swarup, reported in MANU/RH/0016/1961 : RLW 1960 685 : (AIR 1961 Raj 40).

(iii) DB Civil Special Appeal (Writ) No. 1232/2006: Mukund Bihari Sharma v. Shri Satya Narayan decided on 2.4.2007.

5. Mr. Saharan - learned counsel for the respondents contended that the provisions of Sections 57 & 213 of the Act of 1925 are unambiguous in themselves and they unequivocally provide that if any person asserts his right on the basis of Will executed in Kolkata, Madras or Bombay, a probate or letter of administration has to be obtained for the purpose of establishing his rights following the Will.

6. In support of his submissions, learned counsel for the respondents cited the judgment of Hon'ble the Supreme Court in the case of Clarence Pais v. Union of India, reported in MANU/SC/0122/2001 : RLW 2001 (2) Raj LW (SC) 177 : (AIR 2001 SC 1151).

7. Having heard rival submissions and after perusal of the material available on record, before proceeding to pronounce upon the question posed for consideration, I feel it imperative to keep the relevant statutory provisions, handy. Hence, the Sections 57 & 213 of the Indian Succession Act, 1925 (hereinafter referred as the 'Act of 1925') are being reproduced hereinfra:

"57. Application of certain provisions of 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;

(c) to all Wills and codicils made by any Hindu, Buddhist, Sikh of 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."

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 [or Indian Christians], and shall only apply -

(i) in the case 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 Will made by any Parsi dying, after the commencement of the Indian Succession (Amendment) Act, 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 situate within those limits."

8. Section 213 of the Act of 1925 provides that no right as executor or legatee can be established in any Court unless a probate of such Will is obtained from Competent Court. Sub-section (2) of Section 213 carves out an exception, and obliterates the requirement of probate in cases of Will made by Muhammadans or Indian Christians. But by virtue of provisions of sub-section (2) of Section 213 of the Act of 1925 such provision applies with full force to the Wills made by any Hindu, Buddhist, Sikh or Jaina, where such Wills are of classes specified in clauses (a) and (b) of Section 57.

9. Section 57 of the Act of 1925 however postulates that obtaining probate is mandatory in the following cases:

(a) The Wills or codicils have been executed by any Hindu, Buddhist, Sikh or Jaina within territories and limits of Calcutta (territories which were subject to the Lieutenant-Governor of Bengal to be precise) or within the local limits of original civil jurisdiction of the High Courts of Judicature at Madras and Bombay;

(b) Or in cases where the Wills and codicils have been made outside the above referred territories and limits, but they relate to immovable properties situated within such territories.

10. It is an admitted fact that the Will in question had been executed in Calcutta, hence the grant of probate is sine qua non for asserting the rights emanating from such Will.

11. Now I proceed to deal with judgments cited by rival parties.

12. Adverting to the judgments cited by Mr. Jain, on the basis of which he fervently argued that the Will is admissible in evidence and even without probate as held in these judgments, as the property is situated in Rajasthan.

13. Having carefully gone through the judgments cited by learned counsel for the petitioner, this Court finds that in all these cases not only the Will was executed in the State of Rajasthan, but the properties were also situated in Rajasthan, for which this Court ruled that such Wills were not required to be probated. None of the cases cited by Mr. Jain deals with the situation, where the Will had been executed in jurisdiction of Governor of West Bengal or within the civil jurisdiction of Bombay or Madras. The facts of the case at hands are starkly different and the singular fact that the subject Will was executed in Calcutta alone is sufficient to treat this case out of the purview of law laid down in these judgments.

14. Adverting to the judgment of Hon'ble Supreme Court in Clarence Pais (MANU/SC/0122/2001 : AIR 2001 SC 1151) (supra), cited by Mr. Saharan, this Court finds that it has also no direct bearing on the facts of the present case. Hon'ble Supreme Court in the judgment aforesaid was dealing with validity of amendment introduced in Section 213 of the Act of 1925, vide which the requirement of obtaining probate was made mandatory in case of Indian Christians. Mr. Saharan could not pin point as to how the said case throws light on the issue being delved into by this Court.

15. In light of the analysis of the statutory provisions coupled with the consideration of the judgments relied upon by learned counsels, I conclude : "probate is quintessential for assertion of rights accruing through a Will executed by a Hindu. Buddhist. Sikh or Jaina provided the Will is executed within the territories of erstwhile Governor of Bengal. Madras and Bombay High Court, even though the properties are situated outside such territories. Probate is also necessary if the Will is made outside such territories, but the same concerns the properties situated in those territories."

16. My aforesaid view is fortified from the discussions made by Hon'ble the Supreme Court, in the case of Clarence Pais (supra). Relevant extract of para 6 of the said judgment are being reproduced hereinfra:

(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 Section 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".............
17. Similar has been the view of various High Courts, as elucidated in the following cases:

(i) Shri. Shyam Lal v. Sri. Satya Narain s/o. Sri. Sarjoo Pd. and State of Uttar Pradesh through the Collector, MANU/UP/1049/2007.

(ii) S. Rajapalani v. D. Babu, MANU/TN/9095/2007.

(iii) Naram Bhoomi Reddy v. Naram Venkat Reddy, MANU/AP/0926/2014.

18. The Trial Court has, therefore, not erred in rejecting the application of the petitioner under Section 65 of the Evidence Act as the basic document namely; Will executed in Calcutta sans a probate is not admissible in evidence hence, its photostat copy/secondary evidence cannot be tendered in evidence.

19. The writ petition filed by the petitioner is, therefore, rejected.


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