Monday, 1 July 2019

Whether suit filed on basis of will is tenable if probate of will is not obtained?

Sub-section (1) of Section 213 of the Indian Succession Act which is relevant for the purpose reads as follows:--

"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."

8. From a perusal of the provision aforesaid it is apparent that no right as executor or legatee can be established in any court of justice unless the 'Will' is probated by the competent court. In the present case the 'Will' was not probated on the date of institution of the suit as such the suit was itself incompetent. If the impugned order would have been passed in favour of the petitioner whole suit would have been dismissed.

IN THE HIGH COURT OF PATNA

Civil Revision No. 293 of 2010

Decided On: 10.01.2019

Sushila Devi Vs.  Chandra Bhushan Chaudhary and Ors.

Hon'ble Judges/Coram:
Birendra Kumar, J.

Citation: AIR 2019 Patna 51


1. Opposite party No. 1 herein namely, Chandra Bhushan Chaudhary filed tide suit No. 294/2005 against the petitioner and others for declaration that sale deed dated 03.06.2005 executed by the petitioner in favour of other defendants 2 to 10 is forged, fabricated, void and ineffective document.

2. The case of the plaintiff is that the suit property belong to Ram Kripal Chaudhary the husband of the petitioner. Ram Kripal Chaudhary in his lifetime created a trust namely, "Sushila Ram Kripal Chaudhary Datavya Aushadhalaya" at Saidpur Bishanpur for treatment of the needy people. The said Ram Kripal Chaudhary executed registered deed of 'Will' dated 15.10.1999 creating the trust whereunder the plaintiff and defendant No. 3 were members and the petitioner was President of the said trust. The claim of the plaintiff is that since the property was a trust property in pursuance of 'Will' executed by the husband of the petitioner. Petitioner had no right to execute sale deed in respect of trust property in favour of any person.

3. The petitioner raised objection before the trial Judge that the suit itself is not maintainable because claim of the plaintiff was based on the 'Will' and unless the 'Will' is probated, no person can claim any right before the court of law in view of the bar under Section 213 of the Indian Succession Act, 1925.

4. By the impugned order, the learned court below did not dismiss the suit rather held that unless a probate is filed by the plaintiff, no decree can be passed in favour of the plaintiff.

5. Contention of the learned counsel for the petitioner is that if the statute bars any right to be established in any court of justice unless the 'Will' is probated, there is no question of maintainability of the suit without probate of the 'Will'. Therefore, the court below should not have sustained the maintainability of the suit when the court below was itself of definite opinion that no decree can be passed in absence of probate of the 'Will'. He further submits that he has gathered information that subsequent thereto, the plaintiff has filed Probate Case No. 26/2009 and status of that probate case is not known.

6. In spite of service of notice no one appears on behalf of the sole appellant.

7. Sub-section (1) of Section 213 of the Indian Succession Act which is relevant for the purpose reads as follows:--

"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."

8. From a perusal of the provision aforesaid it is apparent that no right as executor or legatee can be established in any court of justice unless the 'Will' is probated by the competent court. In the present case the 'Will' was not probated on the date of institution of the suit as such the suit was itself incompetent. If the impugned order would have been passed in favour of the petitioner whole suit would have been dismissed.

9. Hence, the impugned order is set aside as devoid of any merit and this civil revision application stands allowed.

10. However, it is made clear that in the event of grant of probate, the plaintiff of the suit may exercise his right before the Civil Court by filing a fresh suit, if so advised.


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