Sec.57 and 213 of INDIAN SUCCESSION ACT - in A.P. No probate is necessary for joining as legal heir under Will - Trial court dismissed the I.A. - their lordships held that
1) It is not necessary for the executor or legatee of a Will to
obtain Probates of the Wills in the State of Andhra
Pradesh (Also in the Telangana State after its formation).
(2) For considering an application to come on record as the
legal representative of a deceased party, the Court need
not undertake a roving enquiry on the validity of the
Will(s). A summary enquiry into the claim of execution
of the Wills is enough for the Courts to permit a person
who claims to be the legal representative of the deceased
party to come on record for the limited purpose of
continuing the proceedings.
(3) The burden lies on the executant or legatee to prove the
Will(s) propounded by him in the suit or final decree or
other proceedings, as the case may be, as per the
provisions of Chapter V of the Indian Evidence Act, 1872,
if he asserts any right over the property of the party based
on the Will(s) after his coming on record.
The Civil Revision Petition is accordingly allowed.=
The petitioner filed the above mentioned I.A. before the lower
Court for coming on record as the legal representative of the sole
plaintiff, who died after obtaining preliminary decree dated 11-2-2009
for partition.
It is the pleaded case of the petitioner that he is the nephew
of the plaintiff who died leaving behind two registered Wills dated
4-6-2004 and 12-3-2009 bequeathing the properties which are the
subject matter of the suit, in his favour.
The respondents filed a counter-
affidavit wherein they have mainly pleaded that the petitioner has not
obtained the Probate of the Wills under the Indian Succession Act, 1925,
(for short "the Act") in the absence of which he cannot be impleaded as
the legal representative of the deceased plaintiff.
The Court below, by
the order assailed in this Revision Petition, dismissed the application by
accepting the objection of the respondents that the petitioner cannot
represent the deceased plaintiff unless he obtained the Probate of the
Wills.=
whether the proponent of a Will who seeks to come on record
is liable to obtain Probate thereof?
It is thus abundantly clear that under two contingencies alone, the
necessity of obtaining Probate or Letters of Administration would arise
i.e., (i) where Wills and Codicils were made by any Hindu, Buddhist,
Sikh or Jain on or after 1-9-1870 within the territories which 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 of
Madras and Bombay; and (ii) where such Wills and Codicils were made
outside the above mentioned territories i.e., the territories mentioned in
clause (a) of Section 57, but they relate to immovable properties situated
within those territories or limits. In other words, obtaining of Probates
or Letters of Administration can be insisted only if the Wills or Codicils
are made within the territories of Bengal, Madras and Bombay, or even
if they were made outside these territories, the properties in respect of
which Wills and Codicils are made, are situate within those territories.
The State of Hyderabad not having been within the jurisdiction of the
Madras High Court at any point of time, the provisions of Sections 57
and 213 of the Act had no application to this territory at any point of
time. On the formation of Andhra State after separation from the
Madras State, it was not necessary for the people of that State to obtain
Probates or Letters of Administration under the Wills relating to
properties situated within the jurisdiction of the Madras High Court.
The above being the true purport of the statutory provisions, a
brief debate on the case law is needed.
(1) It is not necessary for the executor or legatee of a Will to
obtain Probates of the Wills in the State of Andhra
Pradesh (Also in the Telangana State after its formation).
(2) For considering an application to come on record as the
legal representative of a deceased party, the Court need
not undertake a roving enquiry on the validity of the
Will(s). A summary enquiry into the claim of execution
of the Wills is enough for the Courts to permit a person
who claims to be the legal representative of the deceased
party to come on record for the limited purpose of
continuing the proceedings.
(3) The burden lies on the executant or legatee to prove the
Will(s) propounded by him in the suit or final decree or
other proceedings, as the case may be, as per the
provisions of Chapter V of the Indian Evidence Act, 1872,
if he asserts any right over the property of the party based
on the Will(s) after his coming on record.=
The Civil Revision Petition is accordingly allowed.
Before closing this case, I will suffer qualm of conscience if
I desist from expressing my feelings.
Regrettably, the Counsel for the
parties, both before the lower Court as well as before me, failed to place
the correct legal position relating to Probates.
A lawyer is a student
forever.
He must show unwavering dedication and unflinching loyalty
to the profession.
He needs to be abreast of the change in both statutory
and Judgmental law.
It is trite that a Judgment is as good in quality as
the quality of assistance the Court gets from the Bar.
Failure of the Bar
to assist properly would lead to the Courts taking erroneous decisions,
such as the one in the present case.
Modern day lawyers are blessed, as
they need not have to flip through the piles of digests as the yester years
lawyers were compelled to do to pick up case law.
With the availability
of sophisticated Information Technology, the latest legal position is just
a click away from them.
Therefore, if the correct legal position is not
placed before the Court by any lawyer, it is not because of paucity of
time, but it could be only due to lack of will on his part to gather latest
legal position.
Complacency on the part of the Bar retards growth of
knowledge and it eventually results in rendering poor and incorrect
Judgments by the Courts.
Due to prohibitively high volume of work-
load a Judge is saddled with, it is highly difficult, nay, impossible for
him, to undertake research on his own in every case.
Unless the Bar
leads the Court towards right direction by placing the relevant facts and
the latest law, there is bound to be the risk of the society receiving more
and more faulty Judgments.
I conclude this Judgment with the fond
hope that the Bar will understand these feelings in right spirit and focus
more on improving quality of preparation and presentation of cases
before the Courts.
2014 -July- Part - http://judis.nic.in/judis_andhra/filename=11674
HON'BLE SRI JUSTICE C.V. NAGARJUNA REDDY
C.R.P.No.1349 of 2013
10-7-2014
Naram Bhoomi Reddy (died) Per L.R. Naram Raghunath Reddy.. Petitioner
Naram Venkat Reddy and another .. Respondents
Counsel for petitioner : Sri Keerthi Prabhaker
Counsel for respondent No.1 : --
Counsel for respondent No.2 : Sri Pavan Kumar Sharma
<GIST:
>HEAD NOTE:
?CASES REFERRED:
1. 1979(2) ALT 347 (DB)
2. AIR 1996 S.C. 1807
3. 1997(5) ALT 459
4. AIR 2001 A.P. 326
5. AIR 1982 A.P. 410
HON'BLE SRI JUSTICE C.V. NAGARJUNA REDDY
C.R.P.No.1349 of 2013
Date : 10-7-2014
The Court made the following:
ORDER:
This Civil Revision Petition arises out of order dated 24-9-2012 in
I.A.No.1019 of 2010 in O.S.No.283 of 1997 on the file of the learned I
Additional Senior Civil Judge, Ranga Reddy District, at L.B. Nagar,
Hyderabad.
The petitioner filed the above mentioned I.A. before the lower
Court for coming on record as the legal representative of the sole
plaintiff, who died after obtaining preliminary decree dated 11-2-2009
for partition. It is the pleaded case of the petitioner that he is the nephew
of the plaintiff who died leaving behind two registered Wills dated
4-6-2004 and 12-3-2009 bequeathing the properties which are the
subject matter of the suit, in his favour. The respondents filed a counter-
affidavit wherein they have mainly pleaded that the petitioner has not
obtained the Probate of the Wills under the Indian Succession Act, 1925,
(for short "the Act") in the absence of which he cannot be impleaded as
the legal representative of the deceased plaintiff. The Court below, by
the order assailed in this Revision Petition, dismissed the application by
accepting the objection of the respondents that the petitioner cannot
represent the deceased plaintiff unless he obtained the Probate of the
Wills.
At the outset, it needs to be observed that the order of the lower
Court is hard to decipher, in particular, paragraph-8 thereof. Be that as it
may, the main question that was required to be considered by the lower
Court was whether the proponent of a Will who seeks to come on record
is liable to obtain Probate thereof? On this aspect, the lower Court as
well as the Counsel appearing for the parties have failed to notice the
correct legal position governing the Probates in the erstwhile State of
Hyderabad (later, part of the State of Andhra Pradesh). I therefore feel
the necessity of briefly explaining the law on the field.
The Act inter alia deals with Probate of Wills. Two statutory
provisions of the Act are relevant for the present purpose. They are
Sections 57 and 213. Therefore, it is necessary to consider these
provisions, which, to the extent they are relevant, are reproduced herein
below :
Section 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 Jain, 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)
Section 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, and shall only apply
(i) in the case of Wills made by any Hindu, Buddhist,
Sikh or Jain where such Wills are of the classes
specified in clauses (a) and (b) of S. 57; and
(ii) in the case of Wills 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, in so far as they relate to
immovable property situate within those limits.
A plain reading of the provisions quoted above would show that under
Section 57 of the Act, the applicability of the provisions set out in
Schedule III thereof is restricted to all Wills and Codicils made by any
Hindu, Buddhist, Sikh or Jain on or after 1-9-1870 within the territories
which at the said date are subject to Lieutenant Governor of Bengal or
within the local limits of the ordinary original civil jurisdiction of the
High Courts of Judicature of Madras and Bombay and to all such Wills
and Codicils made outside those territories and limits so far as they
relate to immovable property situated within those territories or limits.
Sub-section (1) of Section 213 of the Act declares that unless the
executor or the legatee secures a Probate of the Will under which the
right is claimed or Letters of Administration with the Will, he cannot
establish any right in any Court of justice. Sub-section (2) thereof, while
exempting Muhammadans from the application of sub-section (1),
reaffirms the application of sub-section (1) only to the categories of
persons mentioned in clauses (a) and (b) of Section 57 of the Act.
It is thus abundantly clear that under two contingencies alone, the
necessity of obtaining Probate or Letters of Administration would arise
i.e., (i) where Wills and Codicils were made by any Hindu, Buddhist,
Sikh or Jain on or after 1-9-1870 within the territories which 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 of
Madras and Bombay; and (ii) where such Wills and Codicils were made
outside the above mentioned territories i.e., the territories mentioned in
clause (a) of Section 57, but they relate to immovable properties situated
within those territories or limits. In other words, obtaining of Probates
or Letters of Administration can be insisted only if the Wills or Codicils
are made within the territories of Bengal, Madras and Bombay, or even
if they were made outside these territories, the properties in respect of
which Wills and Codicils are made, are situate within those territories.
The State of Hyderabad not having been within the jurisdiction of the
Madras High Court at any point of time, the provisions of Sections 57
and 213 of the Act had no application to this territory at any point of
time. On the formation of Andhra State after separation from the
Madras State, it was not necessary for the people of that State to obtain
Probates or Letters of Administration under the Wills relating to
properties situated within the jurisdiction of the Madras High Court.
The above being the true purport of the statutory provisions, a
brief debate on the case law is needed.
A Division Bench of this Court, in A.S. Murthy Vs. D.V.S.S.
Murthy , analysed the above mentioned provisions and held in
unequivocal terms that the provisions of Section 213(1) of the Act do not
apply to the State of Andhra Pradesh and that therefore, there is no
necessity for obtaining the Probate of the Wills executed by the persons
residing in the State of Andhra Pradesh in respect of the properties
situated therein.
In T.V. Narayana Vs. Venkata Subbamma , which arose from
the State of Andhra Pradesh, the true position with regard to the
provisions of Sections 57 and 213 of the Act was not placed before the
Apex Court. The Supreme Court has proceeded on the view that the
executor or the legatee under a Will is liable to obtain Probate and that in
a suit for bare injunction, the validity of the Will cannot be adjudicated.
A learned single Judge of this Court in M. Narayana Vs. M.
Suryakantham , while following the Judgment of the Division Bench
of this Court in A.S. Murthy (1-supra) and while holding that there is
no need for obtaining Probates in respect of the Wills executed in the
State of Andhra Pradesh, observed that this issue did not fall for
consideration of the Supreme Court in T.V. Narayana (2-supra).
Another learned Judge of this Court in Gangavath Lalu Vs. Gangavath
Tulsi , while following the Judgment in A.S. Murthy (1-supra) held at
para-16 as under :
A plain reading of Sections 213(2) and 57 of the Act would
make it clear that whatever prohibition contained in sub-section
(1) of Section 213 has no application in respect of Wills executed
by Hindus within the State of Andhra Pradesh in respect of
immovable properties situated within the territorial limits of the
State of Andhra Pradesh. It is not necessary to obtain probate of
a Will or letters of administration. The Wills upon which
reliance is sought to be placed can always be permitted to be
proved in any civil proceeding. (Emphasis added)
Before the lower Court, the Counsel for the petitioner has placed
reliance on the Judgment of a learned Judge in Tynala Musalaiah Vs. J.
Mohanraj and others , without relying on the Division Bench
Judgment in A.S. Murthy (1-supra). The learned Judge, in that case,
considered the provisions of Section 213(1) of the Act and held that a
Probate is required to be obtained by the executor or the legatee, albeit,
while holding that such a necessity would arise only after the legal
representative who seeks to come on record in place of the plaintiff
based on the Will, coming on record and at the trial of the proceedings
for establishing his right. A reading of this Judgment would show that
the learned Judge has not undertaken specific discussion on the effect of
sub-section (2) of Section 213 and the provisions of Section 57 of the
Act. The Judgment of the Division Bench of this Court in A.S. Murthy
(1-supra) was also not noticed by the learned Judge. With due respect
to the learned Judge, the Judgment in Tynala Musalaiah (5-supra), to
the extent that it has held that under sub-section (1) of Section 213 of the
Act, obtaining of Probate of a Will is mandatory, is per incuriam, as it
has not only failed to discuss the provisions of Section 213(2) and 57 of
the Act, but it has also failed to notice the Judgment of the Division
Bench in A.S. Murthy (1-supra). But this Court fully concurs with the
opinion of the learned Judge in Tynala Musalaiah (5-supra) to the
extent that the purpose of permitting a person claiming to be the legal
representative of the deceased plaintiff to come on record, is to continue
the proceedings and that the necessity of proving the Will propounded
by him will arise at the time when the legal representative, after his
impleadment, asserts his right over the subject matter of the property
under the Will.
From the discussion undertaken above, the following principles
emerge :
(1) It is not necessary for the executor or legatee of a Will to
obtain Probates of the Wills in the State of Andhra
Pradesh (Also in the Telangana State after its formation).
(2) For considering an application to come on record as the
legal representative of a deceased party, the Court need
not undertake a roving enquiry on the validity of the
Will(s). A summary enquiry into the claim of execution
of the Wills is enough for the Courts to permit a person
who claims to be the legal representative of the deceased
party to come on record for the limited purpose of
continuing the proceedings.
(3) The burden lies on the executant or legatee to prove the
Will(s) propounded by him in the suit or final decree or
other proceedings, as the case may be, as per the
provisions of Chapter V of the Indian Evidence Act, 1872,
if he asserts any right over the property of the party based
on the Will(s) after his coming on record.
The lower Court committed a grievous error in dismissing the
petitioners application contrary to the settled legal position. Hence, the
order under revision is not sustainable.
The petitioner averred that the sole plaintiff executed two Wills in
his favour. He has also produced the two Wills before the lower Court.
At this stage, no further enquiry into the validity of the Wills is needed.
He is therefore permitted to come on record as the legal representative of
the deceased plaintiff. The petitioner shall however have to prove the
Wills on the application of the provisions of the Indian Evidence Act,
1872 in the final decree proceedings.
On the analysis as above, I.A.No.1019 of 2010 is allowed.
The Civil Revision Petition is accordingly allowed.
Before closing this case, I will suffer qualm of conscience if
I desist from expressing my feelings. Regrettably, the Counsel for the
parties, both before the lower Court as well as before me, failed to place
the correct legal position relating to Probates. A lawyer is a student
forever. He must show unwavering dedication and unflinching loyalty
to the profession. He needs to be abreast of the change in both statutory
and Judgmental law. It is trite that a Judgment is as good in quality as
the quality of assistance the Court gets from the Bar. Failure of the Bar
to assist properly would lead to the Courts taking erroneous decisions,
such as the one in the present case. Modern day lawyers are blessed, as
they need not have to flip through the piles of digests as the yester years
lawyers were compelled to do to pick up case law. With the availability
of sophisticated Information Technology, the latest legal position is just
a click away from them. Therefore, if the correct legal position is not
placed before the Court by any lawyer, it is not because of paucity of
time, but it could be only due to lack of will on his part to gather latest
legal position. Complacency on the part of the Bar retards growth of
knowledge and it eventually results in rendering poor and incorrect
Judgments by the Courts. Due to prohibitively high volume of work-
load a Judge is saddled with, it is highly difficult, nay, impossible for
him, to undertake research on his own in every case. Unless the Bar
leads the Court towards right direction by placing the relevant facts and
the latest law, there is bound to be the risk of the society receiving more
and more faulty Judgments. I conclude this Judgment with the fond
hope that the Bar will understand these feelings in right spirit and focus
more on improving quality of preparation and presentation of cases
before the Courts.
________________________
Justice C.V. Nagarjuna Reddy
Date : 10-7-2014
1) It is not necessary for the executor or legatee of a Will to
obtain Probates of the Wills in the State of Andhra
Pradesh (Also in the Telangana State after its formation).
(2) For considering an application to come on record as the
legal representative of a deceased party, the Court need
not undertake a roving enquiry on the validity of the
Will(s). A summary enquiry into the claim of execution
of the Wills is enough for the Courts to permit a person
who claims to be the legal representative of the deceased
party to come on record for the limited purpose of
continuing the proceedings.
(3) The burden lies on the executant or legatee to prove the
Will(s) propounded by him in the suit or final decree or
other proceedings, as the case may be, as per the
provisions of Chapter V of the Indian Evidence Act, 1872,
if he asserts any right over the property of the party based
on the Will(s) after his coming on record.
The Civil Revision Petition is accordingly allowed.=
The petitioner filed the above mentioned I.A. before the lower
Court for coming on record as the legal representative of the sole
plaintiff, who died after obtaining preliminary decree dated 11-2-2009
for partition.
It is the pleaded case of the petitioner that he is the nephew
of the plaintiff who died leaving behind two registered Wills dated
4-6-2004 and 12-3-2009 bequeathing the properties which are the
subject matter of the suit, in his favour.
The respondents filed a counter-
affidavit wherein they have mainly pleaded that the petitioner has not
obtained the Probate of the Wills under the Indian Succession Act, 1925,
(for short "the Act") in the absence of which he cannot be impleaded as
the legal representative of the deceased plaintiff.
The Court below, by
the order assailed in this Revision Petition, dismissed the application by
accepting the objection of the respondents that the petitioner cannot
represent the deceased plaintiff unless he obtained the Probate of the
Wills.=
whether the proponent of a Will who seeks to come on record
is liable to obtain Probate thereof?
It is thus abundantly clear that under two contingencies alone, the
necessity of obtaining Probate or Letters of Administration would arise
i.e., (i) where Wills and Codicils were made by any Hindu, Buddhist,
Sikh or Jain on or after 1-9-1870 within the territories which 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 of
Madras and Bombay; and (ii) where such Wills and Codicils were made
outside the above mentioned territories i.e., the territories mentioned in
clause (a) of Section 57, but they relate to immovable properties situated
within those territories or limits. In other words, obtaining of Probates
or Letters of Administration can be insisted only if the Wills or Codicils
are made within the territories of Bengal, Madras and Bombay, or even
if they were made outside these territories, the properties in respect of
which Wills and Codicils are made, are situate within those territories.
The State of Hyderabad not having been within the jurisdiction of the
Madras High Court at any point of time, the provisions of Sections 57
and 213 of the Act had no application to this territory at any point of
time. On the formation of Andhra State after separation from the
Madras State, it was not necessary for the people of that State to obtain
Probates or Letters of Administration under the Wills relating to
properties situated within the jurisdiction of the Madras High Court.
The above being the true purport of the statutory provisions, a
brief debate on the case law is needed.
(1) It is not necessary for the executor or legatee of a Will to
obtain Probates of the Wills in the State of Andhra
Pradesh (Also in the Telangana State after its formation).
(2) For considering an application to come on record as the
legal representative of a deceased party, the Court need
not undertake a roving enquiry on the validity of the
Will(s). A summary enquiry into the claim of execution
of the Wills is enough for the Courts to permit a person
who claims to be the legal representative of the deceased
party to come on record for the limited purpose of
continuing the proceedings.
(3) The burden lies on the executant or legatee to prove the
Will(s) propounded by him in the suit or final decree or
other proceedings, as the case may be, as per the
provisions of Chapter V of the Indian Evidence Act, 1872,
if he asserts any right over the property of the party based
on the Will(s) after his coming on record.=
The Civil Revision Petition is accordingly allowed.
Before closing this case, I will suffer qualm of conscience if
I desist from expressing my feelings.
Regrettably, the Counsel for the
parties, both before the lower Court as well as before me, failed to place
the correct legal position relating to Probates.
A lawyer is a student
forever.
He must show unwavering dedication and unflinching loyalty
to the profession.
He needs to be abreast of the change in both statutory
and Judgmental law.
It is trite that a Judgment is as good in quality as
the quality of assistance the Court gets from the Bar.
Failure of the Bar
to assist properly would lead to the Courts taking erroneous decisions,
such as the one in the present case.
Modern day lawyers are blessed, as
they need not have to flip through the piles of digests as the yester years
lawyers were compelled to do to pick up case law.
With the availability
of sophisticated Information Technology, the latest legal position is just
a click away from them.
Therefore, if the correct legal position is not
placed before the Court by any lawyer, it is not because of paucity of
time, but it could be only due to lack of will on his part to gather latest
legal position.
Complacency on the part of the Bar retards growth of
knowledge and it eventually results in rendering poor and incorrect
Judgments by the Courts.
Due to prohibitively high volume of work-
load a Judge is saddled with, it is highly difficult, nay, impossible for
him, to undertake research on his own in every case.
Unless the Bar
leads the Court towards right direction by placing the relevant facts and
the latest law, there is bound to be the risk of the society receiving more
and more faulty Judgments.
I conclude this Judgment with the fond
hope that the Bar will understand these feelings in right spirit and focus
more on improving quality of preparation and presentation of cases
before the Courts.
2014 -July- Part - http://judis.nic.in/judis_andhra/filename=11674
HON'BLE SRI JUSTICE C.V. NAGARJUNA REDDY
C.R.P.No.1349 of 2013
10-7-2014
Naram Bhoomi Reddy (died) Per L.R. Naram Raghunath Reddy.. Petitioner
Naram Venkat Reddy and another .. Respondents
Counsel for petitioner : Sri Keerthi Prabhaker
Counsel for respondent No.1 : --
Counsel for respondent No.2 : Sri Pavan Kumar Sharma
<GIST:
>HEAD NOTE:
?CASES REFERRED:
1. 1979(2) ALT 347 (DB)
2. AIR 1996 S.C. 1807
3. 1997(5) ALT 459
4. AIR 2001 A.P. 326
5. AIR 1982 A.P. 410
HON'BLE SRI JUSTICE C.V. NAGARJUNA REDDY
C.R.P.No.1349 of 2013
Date : 10-7-2014
The Court made the following:
ORDER:
This Civil Revision Petition arises out of order dated 24-9-2012 in
I.A.No.1019 of 2010 in O.S.No.283 of 1997 on the file of the learned I
Additional Senior Civil Judge, Ranga Reddy District, at L.B. Nagar,
Hyderabad.
The petitioner filed the above mentioned I.A. before the lower
Court for coming on record as the legal representative of the sole
plaintiff, who died after obtaining preliminary decree dated 11-2-2009
for partition. It is the pleaded case of the petitioner that he is the nephew
of the plaintiff who died leaving behind two registered Wills dated
4-6-2004 and 12-3-2009 bequeathing the properties which are the
subject matter of the suit, in his favour. The respondents filed a counter-
affidavit wherein they have mainly pleaded that the petitioner has not
obtained the Probate of the Wills under the Indian Succession Act, 1925,
(for short "the Act") in the absence of which he cannot be impleaded as
the legal representative of the deceased plaintiff. The Court below, by
the order assailed in this Revision Petition, dismissed the application by
accepting the objection of the respondents that the petitioner cannot
represent the deceased plaintiff unless he obtained the Probate of the
Wills.
At the outset, it needs to be observed that the order of the lower
Court is hard to decipher, in particular, paragraph-8 thereof. Be that as it
may, the main question that was required to be considered by the lower
Court was whether the proponent of a Will who seeks to come on record
is liable to obtain Probate thereof? On this aspect, the lower Court as
well as the Counsel appearing for the parties have failed to notice the
correct legal position governing the Probates in the erstwhile State of
Hyderabad (later, part of the State of Andhra Pradesh). I therefore feel
the necessity of briefly explaining the law on the field.
The Act inter alia deals with Probate of Wills. Two statutory
provisions of the Act are relevant for the present purpose. They are
Sections 57 and 213. Therefore, it is necessary to consider these
provisions, which, to the extent they are relevant, are reproduced herein
below :
Section 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 Jain, 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)
Section 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, and shall only apply
(i) in the case of Wills made by any Hindu, Buddhist,
Sikh or Jain where such Wills are of the classes
specified in clauses (a) and (b) of S. 57; and
(ii) in the case of Wills 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, in so far as they relate to
immovable property situate within those limits.
A plain reading of the provisions quoted above would show that under
Section 57 of the Act, the applicability of the provisions set out in
Schedule III thereof is restricted to all Wills and Codicils made by any
Hindu, Buddhist, Sikh or Jain on or after 1-9-1870 within the territories
which at the said date are subject to Lieutenant Governor of Bengal or
within the local limits of the ordinary original civil jurisdiction of the
High Courts of Judicature of Madras and Bombay and to all such Wills
and Codicils made outside those territories and limits so far as they
relate to immovable property situated within those territories or limits.
Sub-section (1) of Section 213 of the Act declares that unless the
executor or the legatee secures a Probate of the Will under which the
right is claimed or Letters of Administration with the Will, he cannot
establish any right in any Court of justice. Sub-section (2) thereof, while
exempting Muhammadans from the application of sub-section (1),
reaffirms the application of sub-section (1) only to the categories of
persons mentioned in clauses (a) and (b) of Section 57 of the Act.
It is thus abundantly clear that under two contingencies alone, the
necessity of obtaining Probate or Letters of Administration would arise
i.e., (i) where Wills and Codicils were made by any Hindu, Buddhist,
Sikh or Jain on or after 1-9-1870 within the territories which 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 of
Madras and Bombay; and (ii) where such Wills and Codicils were made
outside the above mentioned territories i.e., the territories mentioned in
clause (a) of Section 57, but they relate to immovable properties situated
within those territories or limits. In other words, obtaining of Probates
or Letters of Administration can be insisted only if the Wills or Codicils
are made within the territories of Bengal, Madras and Bombay, or even
if they were made outside these territories, the properties in respect of
which Wills and Codicils are made, are situate within those territories.
The State of Hyderabad not having been within the jurisdiction of the
Madras High Court at any point of time, the provisions of Sections 57
and 213 of the Act had no application to this territory at any point of
time. On the formation of Andhra State after separation from the
Madras State, it was not necessary for the people of that State to obtain
Probates or Letters of Administration under the Wills relating to
properties situated within the jurisdiction of the Madras High Court.
The above being the true purport of the statutory provisions, a
brief debate on the case law is needed.
A Division Bench of this Court, in A.S. Murthy Vs. D.V.S.S.
Murthy , analysed the above mentioned provisions and held in
unequivocal terms that the provisions of Section 213(1) of the Act do not
apply to the State of Andhra Pradesh and that therefore, there is no
necessity for obtaining the Probate of the Wills executed by the persons
residing in the State of Andhra Pradesh in respect of the properties
situated therein.
In T.V. Narayana Vs. Venkata Subbamma , which arose from
the State of Andhra Pradesh, the true position with regard to the
provisions of Sections 57 and 213 of the Act was not placed before the
Apex Court. The Supreme Court has proceeded on the view that the
executor or the legatee under a Will is liable to obtain Probate and that in
a suit for bare injunction, the validity of the Will cannot be adjudicated.
A learned single Judge of this Court in M. Narayana Vs. M.
Suryakantham , while following the Judgment of the Division Bench
of this Court in A.S. Murthy (1-supra) and while holding that there is
no need for obtaining Probates in respect of the Wills executed in the
State of Andhra Pradesh, observed that this issue did not fall for
consideration of the Supreme Court in T.V. Narayana (2-supra).
Another learned Judge of this Court in Gangavath Lalu Vs. Gangavath
Tulsi , while following the Judgment in A.S. Murthy (1-supra) held at
para-16 as under :
A plain reading of Sections 213(2) and 57 of the Act would
make it clear that whatever prohibition contained in sub-section
(1) of Section 213 has no application in respect of Wills executed
by Hindus within the State of Andhra Pradesh in respect of
immovable properties situated within the territorial limits of the
State of Andhra Pradesh. It is not necessary to obtain probate of
a Will or letters of administration. The Wills upon which
reliance is sought to be placed can always be permitted to be
proved in any civil proceeding. (Emphasis added)
Before the lower Court, the Counsel for the petitioner has placed
reliance on the Judgment of a learned Judge in Tynala Musalaiah Vs. J.
Mohanraj and others , without relying on the Division Bench
Judgment in A.S. Murthy (1-supra). The learned Judge, in that case,
considered the provisions of Section 213(1) of the Act and held that a
Probate is required to be obtained by the executor or the legatee, albeit,
while holding that such a necessity would arise only after the legal
representative who seeks to come on record in place of the plaintiff
based on the Will, coming on record and at the trial of the proceedings
for establishing his right. A reading of this Judgment would show that
the learned Judge has not undertaken specific discussion on the effect of
sub-section (2) of Section 213 and the provisions of Section 57 of the
Act. The Judgment of the Division Bench of this Court in A.S. Murthy
(1-supra) was also not noticed by the learned Judge. With due respect
to the learned Judge, the Judgment in Tynala Musalaiah (5-supra), to
the extent that it has held that under sub-section (1) of Section 213 of the
Act, obtaining of Probate of a Will is mandatory, is per incuriam, as it
has not only failed to discuss the provisions of Section 213(2) and 57 of
the Act, but it has also failed to notice the Judgment of the Division
Bench in A.S. Murthy (1-supra). But this Court fully concurs with the
opinion of the learned Judge in Tynala Musalaiah (5-supra) to the
extent that the purpose of permitting a person claiming to be the legal
representative of the deceased plaintiff to come on record, is to continue
the proceedings and that the necessity of proving the Will propounded
by him will arise at the time when the legal representative, after his
impleadment, asserts his right over the subject matter of the property
under the Will.
From the discussion undertaken above, the following principles
emerge :
(1) It is not necessary for the executor or legatee of a Will to
obtain Probates of the Wills in the State of Andhra
Pradesh (Also in the Telangana State after its formation).
(2) For considering an application to come on record as the
legal representative of a deceased party, the Court need
not undertake a roving enquiry on the validity of the
Will(s). A summary enquiry into the claim of execution
of the Wills is enough for the Courts to permit a person
who claims to be the legal representative of the deceased
party to come on record for the limited purpose of
continuing the proceedings.
(3) The burden lies on the executant or legatee to prove the
Will(s) propounded by him in the suit or final decree or
other proceedings, as the case may be, as per the
provisions of Chapter V of the Indian Evidence Act, 1872,
if he asserts any right over the property of the party based
on the Will(s) after his coming on record.
The lower Court committed a grievous error in dismissing the
petitioners application contrary to the settled legal position. Hence, the
order under revision is not sustainable.
The petitioner averred that the sole plaintiff executed two Wills in
his favour. He has also produced the two Wills before the lower Court.
At this stage, no further enquiry into the validity of the Wills is needed.
He is therefore permitted to come on record as the legal representative of
the deceased plaintiff. The petitioner shall however have to prove the
Wills on the application of the provisions of the Indian Evidence Act,
1872 in the final decree proceedings.
On the analysis as above, I.A.No.1019 of 2010 is allowed.
The Civil Revision Petition is accordingly allowed.
Before closing this case, I will suffer qualm of conscience if
I desist from expressing my feelings. Regrettably, the Counsel for the
parties, both before the lower Court as well as before me, failed to place
the correct legal position relating to Probates. A lawyer is a student
forever. He must show unwavering dedication and unflinching loyalty
to the profession. He needs to be abreast of the change in both statutory
and Judgmental law. It is trite that a Judgment is as good in quality as
the quality of assistance the Court gets from the Bar. Failure of the Bar
to assist properly would lead to the Courts taking erroneous decisions,
such as the one in the present case. Modern day lawyers are blessed, as
they need not have to flip through the piles of digests as the yester years
lawyers were compelled to do to pick up case law. With the availability
of sophisticated Information Technology, the latest legal position is just
a click away from them. Therefore, if the correct legal position is not
placed before the Court by any lawyer, it is not because of paucity of
time, but it could be only due to lack of will on his part to gather latest
legal position. Complacency on the part of the Bar retards growth of
knowledge and it eventually results in rendering poor and incorrect
Judgments by the Courts. Due to prohibitively high volume of work-
load a Judge is saddled with, it is highly difficult, nay, impossible for
him, to undertake research on his own in every case. Unless the Bar
leads the Court towards right direction by placing the relevant facts and
the latest law, there is bound to be the risk of the society receiving more
and more faulty Judgments. I conclude this Judgment with the fond
hope that the Bar will understand these feelings in right spirit and focus
more on improving quality of preparation and presentation of cases
before the Courts.
________________________
Justice C.V. Nagarjuna Reddy
Date : 10-7-2014
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