Holding

Section 213(1) of the Indian Succession Act does not apply to wills made by Hindus, Buddhists, Sikhs or Jains outside the territories of Bengal, Madras or Bombay and relating to immovable property situated outside those territories, so probate or letters of administration are not required in Delhi.

Summary

Zorawar Singh owned immovable property in Delhi and executed a will (1985) and codicil (1995) bequeathing it to the parties. After his death, the respondents filed a suit for declaration and permanent injunction concerning the will, while the appellant filed a suit for natural succession. The Delhi High Court held that Section 213 of the Indian Succession Act did not bar the suits and allowed them to be clubbed. On appeal, the Supreme Court examined whether probate or letters of administration were required under Section 213 for wills made by Hindus, Buddhists, Sikhs or Jains concerning property in Delhi. It concluded that Section 57(a) and (b) of the Act, which trigger Section 213(1), do not apply to Delhi, and Section 57(c) is excluded by Section 213(2); therefore, probate is not mandatory. The Court dismissed the appeal, upholding the High Court’s decision.

Issues considered

Whether Section 213 of the Indian Succession Act, 1925 requires probate or letters of administration for a will made by a Hindu, Buddhist, Sikh or Jain concerning immovable property situated in the National Capital Region of Delhi.
Whether the provisions of Section 57(a), (b) or (c) of the Indian Succession Act apply to such wills and thus trigger Section 213(1).

Legislation cited

Code of Civil Procedure, 1908s. Order 7 Rule 11
Indian Succession Act, 1925s. 213, s. 57

Subjects

Indian Succession ActSection 213ProbateWillImmovable propertyDelhi jurisdictionSuccession lawCivil ProcedureInjunctionNatural succession

Judgment

790 [2019]
SUPREME COURT 9 S.C.R. 790
REPORTS [2019] 9 S.C.R.

A KANTA YADAV
v.
OM PRAKASH YADAV & ORS.
(Civil Appeal No. 5823 of 2019)
B JULY 24, 2019
[L. NAGESWARA RAO AND HEMANT GUPTA, JJ.]
Indian Succession Act, 1925 – ss.57, 213 – One ‘ZS’ owned
certain immoveable property in New Delhi – He executed Will dtd.
June 16, 1985 and codicil dtd. Oct. 21, 1995 bequeathing self-
C
acquired property in favour of both the parties – ‘ZS’ died – Two
suits filed – One by the respondents inter alia claiming permanent
injunction in respect of the Will and codicil executed by ‘ZS’ and
also will dtd. June 18, 2009 executed by the wife of ‘ZS’ –Other suit
filed by the appellant claiming natural succession – Division Bench
D of the High Court held that the bar u/s.213 is not applicable and
set aside the order of rejection of plaint directing that both the suits
be clubbed and common evidence be led together – Issue as to
whether it is necessary to seek probate or letter of administration in
respect of a Will in terms of s.213 in the National Capital Region of
Delhi – Held: Present National Capital Region Delhi was part of
E
erstwhile State of Punjab prior to Nov. 1, 1966 – Statutory provisions
are clear that the 1925 Act is applicable to Wills and codicils made
by any Hindu, Buddhist, Sikh or Jain, who were subject to the
jurisdiction of the Lieutenant-Governor of Bengal or within the local
limits of the ordinary original civil jurisdiction of the High Courts
F of Madras or Bombay [Clause (a) of s.57 ] – Secondly, it is
applicable to all Wills and codicils made outside those territories
and limits so far as relates to immoveable property within the
territories aforementioned- [Clause (b) of s.57] – Clause (c) of s.57
inter alia relates to the Wills and codicils made by any Hindu, Buddhist,
Sikh or Jain on or after the first day of Jan. 1927, to which
G
provisions are not applied by clauses (a) and (b) – However, sub-
sec. (2) of s.213 applies only to Wills made by Hindu, Buddhist,
Sikh or Jain where such Wills are of the classes specified in clauses
(a) or (b) of s.57 – Thus, clause (c) is not applicable in view of

H
790
KANTA YADAV v. OM PRAKASH YADAV & ORS. 791

s.213(2) – No error in the judgment passed by the Division Bench A
of the High Court – Code of Civil Procedure, 1908 – Or. 7, r.11.
Dismissing the appeal, the Court
HELD: 1. The statutory provisions are clear that the Indian
Succession Act, 1925 is applicable to Wills and codicils made by
any Hindu, Buddhist, Sikh or Jain, who were subject to the B
jurisdiction of the Lieutenant-Governor of Bengal or within the
local limits of the ordinary original civil jurisdiction of the High
Courts of Madras or Bombay - {clause (a) of Section 57 of the
Act}. Secondly, it is applicable to all Wills and codicils made
outside those territories and limits so far as relates to immoveable C
property within the territories aforementioned - Clause (b) of
Section 57. The clause (c) of Section 57 of the Act relates to the
Wills and codicils made by any Hindu, Buddhist, Sikh or Jain on
or after the first day of January, 1927, to which provisions are not
applied by clauses (a) and (b). However, sub-section (2) of Section
213 of the Act applies only to Wills made by Hindu, Buddhist, D
Sikh or Jain where such Wills are of the classes specified in clauses
(a) or (b) of Section 57. Thus, clause (c) is not applicable in view
of Section 213(2) of the Act. In view thereof, the Wills and codicils
in respect of the persons who are subject to the Lieutenant-
Governor of Bengal or who are within the local limits of ordinary E
original civil jurisdiction of High Court of Madras or Bombay
and in respect of the immoveable properties situated in the above
three areas. Such is the view taken in the number of judgments
referred to above in the States of Punjab and Haryana as well as
in Delhi as also by Supreme Court in Clarence Pais. No error in
the judgment passed by the Division Bench of the High Court. F
[Paras 12-14] [797-G-H; 798-A-E]
Clarence Pais & Ors. v. Union of India (2001) 4 SCC
325 : [2001] 2 SCR 43 – relied on.
Ram Chand v. Sardara Singh & Ors. AIR 1962 P&H G
382 ; M/s. Behari Lal Ram Charan v. Karam Chand
Sahni & Ors. 1968 AIR (Punjab) 108 ; Mrs. Winifred
Nora Theophilus v. Mr. Lila Deane & Ors. AIR 2002
Delhi 6 ; Shri Rajan Suri & Anr. v. The State & Anr.
AIR 2006 Delhi 48 – referred to.
H
792 SUPREME COURT REPORTS [2019] 9 S.C.R.

A Case Law Reference
AIR 1962 P&H 382 referred to Para 7
1968 AIR (Punjab) 108 referred to Para 8
AIR 2002 Delhi 6 referred to Para 9
B AIR 2006 Delhi 48 referred to Para 10
[2001] 2 SCR 43 relied on Para 11
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 5823
of 2019.
C From the Judgment and Order dated 13.02.2017 of the High Court
of Delhi at New Delhi in RFA (OS) No. 35 of 2016.
Jugal Wadhwa, Rishabh Wadhwa, Chirag Joshi, Ghanshyam Joshi,
Advs. for the Appellant.
Syed Hasan Isfahani, Anup Jain, Ms. Mahima Gupta, Vivek Jain,
D Advs. for the Respondents.
The Judgment of the Court was delivered by
HEMANT GUPTA, J. 1. Leave granted.
2. Challenge in the present appeal is to an order passed by the
E Division Bench of Delhi High Court on February 13, 2017 whereby an
intra court appeal against the order dated March 14, 2016 passed by the
learned Single Bench was accepted. The learned Single Bench allowed
an application under Order 7 Rule 11 of the Code of Civil Procedure,
1908 holding that the suit for declaration and permanent injunction is not
F maintainable in view of Section 213 of the Indian Succession Act, 19251.
3. The brief facts leading to the present appeal are that one
Zorawar Singh was owner of certain immoveable property in New Delhi.
He executed a Will dated June 16, 1985 and codicil dated October 21,
1995 bequeathing a self-acquired property in favour of both the parties.
Zorawar Singh died on January 4, 1986. Two suits came to be filed; one
G
by the present respondents bearing CS (OS) No. 3310 of 2012 claiming
declaration and permanent injunction in respect of the Will and codicil
executed by Zorawar Singh and also will dated June 18, 2009 executed
by Smt. Ram Pyari, wife of Zorawar Singh; and the other suit filed by
1
for short, ‘Act’
H
KANTA YADAV v. OM PRAKASH YADAV & ORS. 793
[HEMANT GUPTA, J.]

the present appellant bearing CS (OS) No. 430 of 2012 claiming natural A
succession.
4. The Division Bench of the High Court held that the bar under
Section 213 of the Act is not applicable and, therefore, set aside the
order of rejection of plaint and directed that both the suits be clubbed
and common evidence be led together. B
5. The short question to be examined is whether it is necessary to
seek probate or letter of administration in respect of a Will in terms of
Section 213 of the Act in the National Capital Region of Delhi.
6. It is undisputed that the present National Capital Region Delhi
was part of erstwhile State of Punjab prior to November 1, 1966. The C
argument raised by the respondents is that Section 57 of the Act is
applicable where the properties and parties are situated in the territories
of Bengal, Madras or Bombay, therefore, it is not necessary to seek
probate or letter of administration in respect of properties or the persons
when they are not located in the States of Bengal, Madras or Bombay. D
To examine the said question, certain statutory provisions are relevant to
quote hereunder:
“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 E
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- F
(i) in the case of Wills made by any Hindu, Buddhist, Sikh or Jaina
where such Wills are of the classes specified in clauses (a) and
(b) of section 57; and
(ii) in the case of Wills made by any Parsi dying, after the
commencement of the Indian Succession (Amendment) Act, 1962 G
(16 of 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
situated within those limits.]
H
794 SUPREME COURT REPORTS [2019] 9 S.C.R.

A 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
B 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
C (b) to all such Wills and codicils made outside those territories and
limits so far as relates to immoveable 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
D provisions are not applied by clauses (a) and (b):
Provided that marriage shall not revoke any such Will or codicil.”
7. The said provisions have been examined and come up for
consideration time and again before the Punjab and Haryana High Court
and Delhi High Court. In Ram Chand v. Sardara Singh & Ors.2, the
E Punjab High Court held as under:
“4. …The clear effect of these provisions appears to be that the
provisions of section 213(1) requiring probate do not apply to wills
made outside Bengal and the local original jurisdictional limits of
the High Courts at Madras and Bombay except where such wills
F relate to immovable property situated within those territories.
5. There remains to be considered the decision of Shamsher
Bahadur, J., in the case mentioned above, which is apparently
based on the decision of a Full Bench in Ganshamdoss
Narayandoss v. Gulab Bi Bai, [ I.L.R. 50 Mad. 927.] . I find,
G however, on perusing this judgment that what has been held is
that a defendant resisting a claim made by the plaintiff as heir-at-
law cannot rely in defence on a will executed in his favour at
Madras in respect of property situate in Madras, when the will is
not probated and no letters of administration with the will annexed
2
H AIR 1962 P&H 382
KANTA YADAV v. OM PRAKASH YADAV & ORS. 795
[HEMANT GUPTA, J.]

have been granted. This is clearly in accordance with the provisions A
of sections 213 and 57(a) of the Act, and the only point on which
the matter was referred to the Full Bench was whether a will
could be set up in defence in a suit without probate.
6. As I have said the clear reading of the provisions of the Act
leave no doubt whatever that no probate is necessary in order to B
set up a claim regarding property either movable or immovable on
the basis of a will executed in the Punjab and not relating to
property situated in the territories mentioned in section 57(a). I
accordingly accept the revision petition and set aside the order of
the lower Court requiring the petitioner to obtain probate. The
matter may now be disposed of by the lower Court, where the C
parties have been directed to appear on the 4th of December,
1961. The parties will bear their own costs in this Court.”
8. The said view was affirmed by the Division Bench of Punjab
and Haryana High Court in M/s. Behari Lal Ram Charan v. Karam
Chand Sahni & Ors.3: D

“3. From a bare perusal of these two sections it is apparent that
the objection of defendant No. 1 on the preliminary issue raised
by him in the trial Court was without any substance. Clause (a) of
section 57 read with sub-section (2) of section 213, it would appear,
applies to those cases where the property and parties are situate E
in the territories of Bengal, Madras and Bombay, while clause (b)
applies to those cases where the parties are not residing in those
territories but the property involved is situate within those territories.
Clause (c) of section 57, however, is not relevant for the present
purposes. Therefore, where both the person and property of any F
Hindu, Budhist, Sikh or Jaina, are outside the territories mentioned
above, the rigour of section 213, sub-section (1), is not attracted.
Reference was made by the learned referring Judge to a decision
of the Supreme Court in Mrs. Hem Nolini v. Mrs. Isolve
Sarojbashini Bose, AIR 1962 Supreme Court 1471, but the
parties in that case were Christians (to whom it is agreed section G
57 does not apply) and their Lordships only considered the
implications of sub-section (1) of section 213 of the Act and not
of sub-section (2) of that section read with section 57 clauses (a)
and (b). The learned Single Judge probably felt the difficulty
3
1968 AIR (Punjab) 108 H
796 SUPREME COURT REPORTS [2019] 9 S.C.R.

A because of the view taken by Shamsher Bahadur, J. In Kesar
Singh and others v. Tej Kaur, 1961 P.L.R. 473, but that judgment
was considered by Falshaw, J. (as he then was) in Ram
Chand v. Sardara Singh, 1962 P.L.R. 265, who differed from
the view taken by Shamsher Bahadur, J., in the above-mentioned
case, holding that no probate was necessary in order to set up a
B
claim regarding property either movable or immovable on the basis
of a will executed in the Punjab and a succession certificate could
be granted on the ground of a will without obtaining probate. While
referring to the decision of Shamsher Bahadur, J., in Kesar Singh’s
case, Falshaw, J., observed that the view taken by Shamsher
C Bahadur, J., was apparently based on the decision of a Full Bench
in Ganshomdass v. Gulab Bi Rai, ILR 50 Madras 927 where it
was held that a defendant resisting a claim made by the plaintiff
as heir-at-law could not rely in defence on a will executed in his
favour at Madras in respect of property situate in Madras, when
the will was not probated and no letters of administration with the
D
will annexed had been granted. The Madras case was clearly in
accordance with section 213 read with section 57 of the Act. We
agree with the view taken by Falshaw, J., in Ram Chand’s case.
A similar view was expressed by Jai Lal, J., in Sohan
Singh v. Bhag Singh, AIR 1934 Lahore 599, and by me in C.R.
E 340-D/1965 (Radhe Lal v. Ladli Parshad) decided on 24th
August, 1965. Even a cursory glance at sections 213 and 57 of
the Act leaves no room for doubt that the view taken by Shamsher
Bahadur, J., in the case mentioned above was erroneous. It appears
that the case of Sohan Singh v. Bhag Singh (supra), referred
to above, was not brought to his notice.”
F
9. In Mrs. Winifred Nora Theophilus v. Mr. Lila Deane &
4
Ors. , a Single Bench of Delhi High Court held as under:
“11. On interpretation of Section 213 read with Section 57 (a) and
(b), the Courts have opined that where the will is made by Hindu,
G Buddhist, Sikh and Jaina and were subject to the Lt. Governor of
Bengal or within the local limits of ordinary, original civil jurisdiction
of High Courts of Judicature at Madras and Bombay or even
made outside but relating to immovable property within the
aforesaid territories that embargo contained in Section 213 shall
4
H AIR 2002 Delhi 6
KANTA YADAV v. OM PRAKASH YADAV & ORS. 797
[HEMANT GUPTA, J.]

apply. From this it stands concluded that if will is made by Hindu, A
Buddhist, Sikh or Jaina outside Bengal, Madras or Bombay then
embargo contained in Section 213 shall not apply. This is what the
various judgments cited by the learned counsel for the defendants
decide. Therefore, there is no problem in arriving at the conclusion
that if the will is made in Delhi relating to immovable property in
B
Delhi by Hindu, Buddhist, Sikh or Jaina, no probate is required.”
10. The Division Bench of Delhi High Court in Shri Rajan Suri
& Anr. v. The State & Anr.5 referred to the Division Bench judgment in
Behari Lal’s case and certain other Single Bench judgments of Delhi
High Court to conclude as under:
C
“33. The result of the aforesaid is that complete line of judgment
referred by the learned counsel for the petitioner in support of the
submission that probate is mandatory would have no application
to the facts of the present case and thus findings arrived at in the
collateral proceedings in the suit to which the petitioners were
parties would bind the petitioners.” D

11. Learned counsel for the respondents also referred to the
Supreme Court judgment in Clarence Pais & Ors. v. Union of India6
wherein, validity of Section 213 of the Act was challenged as
unconstitutional and discriminatory against the Christians. This Court
held as under: E

“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 Sections
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 F
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. The result is that the
contention put forth on behalf of the petitioners that Section 213(1)
of the Act is applicable only to Christians and not to any other G
religion is not correct.”
12. The statutory provisions are clear that the Act is applicable to
Wills and codicils made by any Hindu, Buddhist, Sikh or Jain, who were
5
AIR 2006 Delhi 48
6
(2001) 4 SCC 325 H
798 SUPREME COURT REPORTS [2019] 9 S.C.R.

A subject to the jurisdiction of the Lieutenant-Governor of Bengal or within
the local limits of the ordinary original civil jurisdiction of the High Courts
of Madras or Bombay - {clause (a) of Section 57 of the Act}. Secondly,
it is applicable to all Wills and codicils made outside those territories and
limits so far as relates to immoveable property within the territories
aforementioned - Clause (b) of Section 57. The clause (c) of Section 57
B
of the Act relates to the Wills and codicils made by any Hindu, Buddhist,
Sikh or Jain on or after the first day of January, 1927, to which provisions
are not applied by clauses (a) and (b). However, sub-section (2) of
Section 213 of the Act applies only to Wills made by Hindu, Buddhist,
Sikh or Jain where such Wills are of the classes specified in clauses (a)
C or (b) of Section 57. Thus, clause (c) is not applicable in view of Section
213(2) of the Act.
13. In view thereof, the Wills and codicils in respect of the persons
who are subject to the Lieutenant-Governor of Bengal or who are within
the local limits of ordinary original civil jurisdiction of High Court of
D Madras or Bombay and in respect of the immoveable properties situated
in the above three areas. Such is the view taken in the number of
judgments referred to above in the States of Punjab and Haryana as
well as in Delhi as also by this Court in Clarence Pais.
14. In view of the above, we do not find any error in the judgment
E passed by the Division Bench of the Delhi High Court. Consequently,
the appeal is dismissed.

Divya Pandey Appeal dismissed.

F

G

H