Whether Indian court can issue letter of administration on basis of copy of will issued by foreign court?

The further argument that this order also flouts a claim founded on a breach of any law in force in India has no meaning, for, there is no law which is breached here. There is no law even in India that a copy of the Will cannot be accepted by court for issuance of a letter of administration. I have extracted the Section 237 of the Indian Succession Act to show that it is possible for a court to issue a grant which will be limited as to the time when the production of the original is made. Till such time as the original is produced, the copy itself can be acted upon. The Indian Evidence Act does not abhor a secondary evidence at all times. It sets out 7 circumstances (a) to (g) under Section 65 of Evidence Act. Loss of original or the Will being mislaid are circumstances when the secondary evidence is permissible. I have already referred to the decision of the Supreme Court in Ashok Layland Limited (supra) that any order of foreign court of what the grant declares must be taken to be conclusive of what it states. If foreign judgment reads that the party has been served with notice and after the grant, it also says that it was being issued till the original was produced, then it will be begging the question to ask that the original has not been produced and that conflicts with some rule of procedure in India. The circumstances set out for issuing a grant on the basis of a copy itself are sufficient vindication of the fact that the court has found a justification for reception of secondary evidence for issuance of a grant.

The issue of probate or letters of administration is optional for the rest of India by the restrictive operation of Section 213 of the Indian Succession Act referred to above. The effect is twofold: For persons who are mandated to secure the grant under Section 213, a resort to grant under Section 228 of the Act for a foreign grant is mandatory. In Alagammal and others Versus Rakkammal-AIR 1992 Mad 354, the Madras High Court came to such a conclusion by a combined reading of the above two provisions for a person whose properties were situation within the original jurisdiction of Madras High Court. No probate or Letters is necessary in the case of Wills made by Hindus of Punjab and of properties situated in Punjab (Sohan Singh Versus Bhag Singh MANU/LA/0550/1934 : AIR 1934 Lah 599; Ram Chand Versus Sardar Singh MANU/PH/0131/1962 : AIR 1962 Punj 382) and consequently, the grant of probate issued by a foreign court to operate in India will be tested only through Section 13 of CPC and Section 41 of the Evidence Act, the exercise which we have undertaken. Before concluding this issue, I must record a view expressed by the High Court of Lahore, the principle of stare decisis of which court is applicable to the Punjab & Haryana High court as its successor court, in Ramlal Versus Chanan Dass-1938 (40) PLR 1064. The Court has held that the real object of Section 228 is to dispense with the production of the original owing to its having been deposited in some other court. The section is merely an enabling section and if the court considers that there is a question to be decided relating to the validity of the Will, such as the power of the testator to make a Will, etc, the court is bound to try that question before enabling the executor to act under the Will. To our purpose in this case, there is no issue that the father had no power of disposition under the will. Indeed, the issue of title is irrelevant to grants and I will not use the cautious rider that the earlier decision of the Lahore Court alludes to.

IX. Dispensation

14. It will be a travesty to put the party through a necessity of having to prove the Will again under Section 68 of the Evidence Act. If the defendants are aggrieved by the grant, they may resort to such action as it is possible to apply to the foreign court for revoking the grant in the manner similar to the procedure prescribed under Section 263 of the Indian Succession Act.

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

Civil Revision No. 7513 of 2014

Decided On: 20.01.2016

Appellants: Avtar Singh Bains
Vs.
Respondent: Gurdev Kaur and Ors.

Hon'ble Judges/Coram:K. Kannan, J.

Print Page