JUDGMENT Sanjay Kishan Kaul, J.
Page 2420
1. The petitioners have filed a petition under Sections 276 and 278 of the Indian Succession Act, 1995, (hereinafter referred to as the 'said Act') in Page 2421 respect of the estate of Late Shri Mela Ram son of late Shri Ghasita Mal last resident of 33, Pusa Rad, New Delhi, who died on 25.09.1978.
2. Late Shri Mela Ram was the paternal grandfather of the petitioners and respondent No. 2, Shri Aman Suri. Late Shri Mela Ram had two sons and three daughters. The petitioners are grandsons from one son while respondent No. 2 is the grandson from the other son.
3. Late Shri Mela Ram is stated to have executed a registered Will dated 26.12.1974 in favor of the petitioners and respondent No. 2. The original Will is not traceable but since the Will was registered, a certified copy of the Will has been placed on record. It is the case of the petitioners that they had no knowledge of the said earlier Will and it is only about five months prior to the filing of the petition that one Shri Ram Chawla son of late Shri Ishwar Das Chawla disclosed the factum of a Will having been executed since late Ishwar Das Chawla apparently scribed the registered will. Thereafter steps were stated to have been taken by the petitioners to obtain the certified copy of the Will. The last original will was not traceable despite efforts made in this behalf. The total value of the properties bequeathed in pursuance to the will is stated to be Rs.3 crores and the shares in the properties are mentioned in para 9 of the petition.
4. Respondent No. 2 has filed the present application under Order VII Rule 11 of the Code of Civil Procedure, 1908 (hereinafter referred to as the Code) for rejection of the plaint. The said provisions of the Code in so far as applicable to the plea of respondent No. 2 is as under :
"11. Rejection of plaint. Â- The plaint shall be rejected in the following cases :-
...
(d) where the suit appears from the statement in the plaint to be barred by any law;
..."
5. The aforesaid plea of petition being barred by law arises from the provisions of the said Act. The submission of respondent No. 2 is that the petition is not maintainable in view of the fact that among the necessary ingredients specified in Section 276 of the Act, such a petition is maintainable only in respect of a writing annexed to the petition which is the 'last Will and testament'. The relevant provision being sub-section (1) of Section 276 reads as under :
"Section 276 (1) - Application for probate or for letters of administration, with the Will annexed, shall be made by a petition distinctly written in English or in the language in ordinary use in proceedings before the Court in which the application is made, with the Will or, in the cases mentioned in Sections 237, 238 and 239, a copy, draft, or statement of the contends thereof, annexed and stating -
(a) the time of the testator's death,
(b) that the writing annexed is his last Will and testament,
(c) that it was duly executed,
(d) the amount of assets which are likely to come to the petitioner's hands, and Page 2422
(e) when the application is for probate, that the petitioner is the executor named in the Will."
6. Respondent No. 2 has submitted that the alleged Will dated 26.12.1974 is not the last Will of the deceased testator Shri Mela Ram. He had admittedly executed a subsequent Will and testament of 18.09.1978 which was the last Will and testament of the deceased Mela Ram. In view of the execution of the subsequent Will, the earlier Will dated 26.12.1974 is stated to have lost its significance and no petition for probate could be granted for the earlier Will in view of the provisions of Section 276 of the Act read with Section 62 of the said Act. It may be noticed that Section 276 of the said Act provides that a Will is liable to be revoked, altered by the maker at any time when he is competent to dispose of his property by Will. The plea relating to subsequent Will is in fact advanced on the basis that the said Will is undisputedly admitted to be a Will of Late Shri Mela Ram and has been acted upon after his demise by execution of a partnership deed dated 29.12.1978 wherein the subsequent Will dated 18.09.1978 has been referred to. This partnership deed is signed even by the petitioners and the said Will has been acted upon in terms of the partnership deed.
7. A suit for dissolution of the partnership was filed subsequently bearing No. 424/1981 where the petitioners were parties. This partnership deed, as stated above, was executed in view of the Will dated 18.09.1978. All the parties in the suit made a statement admitting that Shri Joginder Paul Suri, HUF, had succeeded to the share of Late Shri Mela Ram which had in fact devolved upon the said Shri Joginder Paul Suri on the basis of the Will dated 18.09.1978. A preliminary decree for dissolution was also passed in the said suit, on the statements of the partners, by the Court on 28.09.1981 and none of the partners have challenged the said statements thereafter. The petitioners herein had filed IA No. 1858/2002 in the said suit for modification of the preliminary decree on the basis that the petitioners had come to know about one registered Will dated 26.12.1974, and thus sought modification of the preliminary decree in terms of the said Will. This application was however, dismissed by the learned Single Judge of this Court in terms of the order dated 19.09.2002. An appeal was also filed by the petitioners aggrieved by the said order being FAO (OS) 376/2002 which was also dismissed in liming by the order dated 10.01.2003. The important aspect emphasised is that while dismissing the application the learned Single Judge of this Court had held that even if the registered Will dated 26.12.1974 propounded by the petitioners herein was taken as having executed, stood superseded by the subsequent Will dated 18.09.1978 which was accepted and admitted by the petitioners herein by relying upon the partnership deed dated 29.12.1978 in which the Will dated 18.09.1978 had been referred to. The petitioners were held as being estopped from saying that the subsequent Will was forged and manipulated document as all the partners jointly pleaded and relied upon on the said Will for the last 20 years. The petitioners are thus stated to have no cause of action to file the petition.
8. Learned senior counsel for respondent No. 2, to advance his submission, referred to the subsequent Will dated 18.09.1987 where it has been Page 2423 categorically stated 'hereby revoking all other previous wills and codicils heretofore and made by me'. It was thus submitted that the subsequent Will of 18.09.1978 which had been admitted by all the parties concerned had revoked the previous wills and the previous Will was thus not enforceable. Learned counsel referred to the judgment of the Division Bench of the Kerala High Court in Thayyullathil Kunhikannan and Ors. v. Thayyullathil Kalliani and Ors. AIR 1990 Kerala 226, where it was held that the requirement of Section 68 of the Evidence Act, 1872, relate to a document which is required to be proved at the trial of the suit. Section 68 of the Evidence Act, 1872 reads as under :
"68. Proof of execution of document required by law to be attested - If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence."
9. The effect of the reading of the aforesaid provision is that at least one attesting witness has to be called to prove a Will. However, the Division Bench held that Section 68 of the Act cannot operate to insist on formal proof by calling an attesting witness if such proof is not required by any rule of law or pleading. If the execution of the Will or attestation is not in dispute then Section 58 of the Evidence Act was held to have over-riding effect. Section 58 reads as under :
"58. Facts admitted need not be proved. - No fact need to be proved in any proceeding which the parties thereto or their agents agree to admit at the hearing, or which, before the hearing, they agree to admit by any writing under their hands, or which by any rule of pleading in force at the time they re deemed to have admitted by their pleadings:
Provided that the Court may, in its discretion, require the facts admitted to be proved otherwise than by such admissions."
10. It was thus held by the Division Bench that in the absence of any plea in the written statement it will be the height of technicality and waste of judicial time to insist on examination of an attesting witness, before a Will could be used as evidence.
11. The aforesaid proposition was advanced by learned senior counsel to respondent No. 2 to substantiate the plea that the motion of recording of evidence of attesting witness was not required to be gone into in the present case as the Will of 1978 was admitted by all the parties.
12. The same view was taken by the Andhra Pradesh High Court in Valluri Jaganmohini Seetharama Lakshmi and Anr. v. Kopparthi Ramachandra Rao and Ors. , by holding that an admission in pleading as to the execution of the document dispenses with the necessity of proof of execution even though such document was one required by law to be in certain form or proved in certain way. It was observed in para 10 as under :
Page 2424 "As the Will is a document required by law to be attested, it shall not be used as evidence until at least one attesting witness is examined. That is only when either plaintiff seeks for a relief propounding a Will or when the defendant raises a specific plea setting up the Will as a defense to the claim made by the plaintiff. But where the plaintiff himself accepts the execution of the Will, but chooses to contest only on legal aspects touching upon the validity of the bequeathment of certain properties, Section 68 of the Indian Evidence Act does not come into play and is totally inapplicable. The words `it shall not be used as evidence' contained under Section 68 of the Indian Evidence Act, are very significant while considering this aspect. In the instant case it is not that the defendant sought to use the Will as defense, but on the other hand, it is the plaintiff, who himself has filed the Will admitting the execution, but questioning the legal validity of the same in so far s certain properties are concerned. In that view of the matter, Section 58 of the Indian Evidence Act is applicable for the instant case and Section 68 is totally inapplicable."
13. It may be noticed that the facts of the said case also were one where an undisputed Will was sought not to be relied upon at the stage of the judgment on the ground that the same could not be taken cognizance of as it was not proved in accordance with the provisions of Indian Evidence Act. In that context, the High Court held the said view to be erroneous since there was admission of the genuineness of the Will and the binding nature thereof.
14. The petitioners resisted the application affirming to the Will dated 26.12.1974. The subsequent Will dated 18.09.1978 was alleged to be forged and fabricated document. Thus the plea raised is that the subsequent Will would revoke the earlier Will only if the subsequent Will was genuine. It has also been stated that even if probate proceedings were initiated, probate granted can be revoked if the Will propounded is subsequently found to be forged. In the present case, no such proceedings are stated to be initiated for grant of probate of subsequent Will.
15. The petitioners do not dispute the contents of the order dated 19.09.2002 in IA no. 1858/2002 which are as under :
"After considering the submissions made by learned counsel for the parties, this Court is of the considered view that the application filed by the applicants-defendants is frivolous on the face of it and merely a dilatory tactic for the reason that a prior Will dated 27.12.1974, even if registered, stood superseded by the subsequent Will dated 18.09.1978 which was admitted and acted upon by the applicants. In the application, the applicants did not plead even the Will dated 18.09.1978 was a forged or fabricated document but after the reply filed by defendants No. 2 and 5 they took a plea in the rejoinder that the Will dated 18.09.1978 appeared to be a manipulated document. This plea is an after-thought only. After admitting the Will dated 18.09.1978 in the partnership deed dated 29.12.1978, on the basis of which the preliminary decree was passed on 20.08.1981, and without raising any objection against the Will dated 18.09.1978 the applicants-defendants are estopped from saying that the said Will appears Page 2425 to be a forged and manipulated document. The fact that the applicants-defendants have filed proceedings for the grant of probate of the Will dated 26.12.1974 is also no ground for tinkering with the preliminary decree dated 20.08.1981. Defendants No. 3 and 4 and defendant No. 2 and 5 belong to same family. They all have been jointly pleading and relying upon the Will dated 18.09.1978 for the last over 20 years and as such, it is now too late in the day for defendants No. 3 & 4 to express doubts against the said Will and claim redefining of their shares in the preliminary decree dated 20.08.1981.
This Court, therefore, is of the considered view that the application filed by applicants is without any merit. There are no grounds for modifying preliminary decree dated 20.08.1981 as prayed.
The application, therefore, stands dismissed."
16. The submission, however, advanced was that the findings recorded in the said order are incidental and cannot operate as res judicata in probate proceedings. In this behalf the judgment of the Bombay High Court in Jerbanoo Rustomji Garda v. Pootlamai Manecksha Mehra was referred to. It was observed in para 1, as under :
"1. In our opinion, it is clear that a decision as to the proof of the Will given by any civil Court can under no circumstances operate as `res judicata' in probate proceedings taken out in the Probate Court. In a civil suit the Court is only concerned with deciding the rights between the parties. In a Probate Court the position is entirely different.
The Probate Court is a Court of conscience and it does not decide rights between parties but it has to deliver a judgment which would become a judgment `in rem' and this judgment will bind not only the parties before it but the whole world. Therefore, the approach of a Probate Court to the question before it is different from the approach of a civil Court adjudicating upon the rights between the parties, and this position is made clear by the provisions of Section 41, Evidence Act.
It is only a final judgment, order or decree of a competent Court, in the exercise of probate, matrimonial, admiralty or insolvency jurisdiction which confers upon or takes away from any person any legal character, or which declares any person to be entitled to any such character, or to be entitled to any specific thing, not as against any specified person but absolutely, is relevant when the existence of any such legal character, or the title of any such person to any such thing, is relevant, and such judgment, order or decree has been made conclusive proof with regard to the legal character which it declares.
Therefore, a judgment `in rem' which is the judgment with which S. 41 deals, is a judgment passed by a Court as the exclusive Court dealing with probate matters. A civil Court dealing with the same question, deciding the same issue, cannot pass a judgment which would bind the world and would constitute a judgment `in rem'. Therefore, even though the civil Court here was deciding a question as to the proof of the Will and the codicil have been Page 2426 proved, even so its judgment Will have no binding effect as a judgment `in rem'. From this it must follow that this decision cannot operate as `res judicata' and cannot bind the Probate Court. The Probate Court must apply its own mind and must satisfy its own conscience that the Will or the codicil put forward as the last Will or codicil of the deceased is his last Will and codicil. It must be satisfied as to the execution of the document, it must be satisfied as to the testamentary capacity of the deceased, and that satisfaction cannot be influenced or affected by any decision given by any civil Court although the issue raised was identical".
17. A reliance has also been placed on the judgment of the learned Single Judge of the Andhra Pradesh High Court in Mylavarapu Chitti Sanyasi Prasad Rao v. Runku Lakshmayya , where it was held that under the general principles a judgment of a court of exclusive jurisdiction can operate as res judicata only on a matter which that Court could exclusively decide. It is not necessary that the Court of exclusive jurisdiction should be competent to hear subsequently filed suit. However, for the purpose of deciding a question which relates to the exclusive jurisdiction, the Special Tribunal finds it necessary to decide another matter, that matter does not become a matter of exclusive jurisdiction and any decision on any such matter neither binds the parties, nor can it operate as res judicata.
18. A learned Single Judge of the Madras High Court T. Sarveswara Rao v. T. Sathyanarayana and Ors., , held that while dealing with the proceedings initiated on the basis of an earlier Will, defense that it is revoked by subsequent Will where the subsequent Will is not marked, in evidence would not be tenable. Where no proceedings were initiated based on the subsequent Will, it would not be permissible for a defense to be taken that the earlier Will stand revoked by the subsequent Will and thus Letters of Administration ought not to be granted.
19. In so far as the application filed by the petitioners in the suit proceedings is concerned, it is submitted that the application was filed under the provisions of Sections 151, 152 and 153 of the Code. Section 152 is concerned with clerical or arithmetical mistakes in judgments, decrees or orders or errors arising therein from any accidental slip or omission. Section 153 relates to general power to amend any defect or error in any proceedings in a suit while Section 151 is the inherent powers to the Court to make such orders as may be necessary for the ends of justice. In this behalf, the judgment of the Supreme Court in State of Punjab v. Darshan Singh 2004 1 SCC 328 was referred to advance the proposition that it is only such typographical errors which could have been corrected in the proceedings filed against the petitioners and thus the rejection of that claim cannot preclude the present petition from proceedings.
Page 2427
20. Learned counsel for the respondent also emphasised that the Apex Court in Chiranjilal Shrilal Goenka v. Jasjit Singh and Ors., , had held that the Court of Probate has the exclusive jurisdiction and a Civil Court in the Original Side or Arbitrator even on consent of parties has no jurisdiction to adjudicate upon the proof or validity of a Will propounded by the executor since the Probate Court does not decide the question of title.
21. A reference was also made to the judgment of the Supreme Court in Mrs. Hem Nolini Judah (since deceased) and after her legal representative Mrs. Marlean Wilkinson v. Mrs. Isolync Sarojbhashini Bose and Ors., , where it was held that Section 213 of the Code creates a bar to the establishment of any right under Will by an executor or a legatee unless probate or letters of administration of the Will have been obtained.
22. A further judgment referred to by the learned counsel was in Purna Bai and Ors. v. Ranchhoddas and Ors., , relating to the issue whether the admission of execution of a particular document extends to the execution of another document recited in the former document. It was held that, inasmuch as the attestation is not proved, the admission could not be extended to the execution of the Will merely by recital of the Will in another document.
23. It was lastly contended that while dealing with an application under Order VII Rule 11 of the Code, certain principles have to be kept in mind as enunciated by the Apex Court in Liverpool & London S.P. & I Association Ltd. v. M.V. Sea Success I and Anr., . It was held that so long as the claim discloses same cause of action or raised same question, fit to be decided by a judge, the mere fact that the case is weak and not likely to succeed is no ground for striking it out. The purported failure of the pleadings to disclose a cause of action is distinct from the absence of full particulars. If a legal question is raised by the defendant in the written statement, it does not mean that the same has to be decided only by way of an application under Order VII Rule 11 of the Code.
24. I have given a thoughtful consideration to the aforesaid pleas since the issues involved would go to the very root of maintainability of the petition and the question whether the petition is liable to be thrown out at the threshold on the application filed by respondent No. 2 or whether a trial must takes place to determine the issue.
25. There can be no doubt about the principles of law as set out in Liverpool & London S.P. & I Association Ltd case (supra). Thus if some cause of Page 2428 action or some question fit to be raised is so raised, the petition ought not to be thrown out under the provisions of Order VII Rule 11 of the Code. However, the matter in issue in the particular case is not based on a disclosure of a cause of action but whether there is a bar in law. Section 276 of the said Act is explicit in its term and there is no dispute about the proposition of law that the probate can be granted only in respect of the last Will and testament. This legal principle is based on the ground that no useful purpose would be served by granting the probate of an earlier Will if a subsequent Will is undisputed. It must be the last Will and testament of which probate is to be granted.
26. In the factual matrix, what has to be considered, is whether the petition filed by the petitioner can be said to be for the grant of the last Will and testament of the deceased. For the purpose of consideration of this application, the validity and execution of the Will in question being of the year 1974 is not required to be gone into. It thus must be presumed that such a registered Will dated 26.12.1974 was validly executed and registered. The only question which arises is, if there is a subsequent Will which is validly executed, can the probate be granted of the earlier Will? To this the answer would be a clear no.
27. The question, however, remains whether the subsequent Will can be said to be validly proved and executed so as to dis-entitle the petitioners from consideration of the earlier Will propounded by them. In this behalf, learned counsel for the respondent has laid great emphasis on the nature of jurisdiction as exercised by the Probate Court as distinct from a Court of civil jurisdiction. The Apex Court in Chiranjilal Shrilal Goenka case (supra) has emphasised the fact that the Probate Court alone has exclusive jurisdiction and the Civil Court does not get jurisdiction even if consented to by the parties. In this context, the judgment in Jerbanoo Rustomji Gard case (supra), the Division Bench of the Bombay High Court had held that a decision as to the proof of the Will given by the Civil Court would under no circumstance operate as res judicata in probate proceedings taken out in the Probate Court.
28. These judgments are based on the principle that a judgment of a Probate Court is in rem which would not be the case so far as the exercise of jurisdiction by the Civil Court is concerned. These principles also set out in what circumstances a disputed Will can be relied upon because the same is required to be proved in a particular manner. The facts of the present case, however, paint a different picture. The undisputed position is that the Will of 1978 has never been disputed. Not only it has not been disputed, it has been specifically admitted by all the concerned parties including the petitioners as a valid Will. In this behalf, statement of parties have also been recorded in the said proceedings. Thus a plea cannot be permitted to be raised by the petitioners today that the subsequent Will is forged or fabricated. It is not a question of a Page 2429 decision of a Civil Court which should or should not bind the petitioners in so far as the validity of the Will is concerned but the admission of the petitioners in those proceedings having admitted to the Will of 1978 having been legally and validly executed. It was not the case of the petitioners in these proceedings and over a long period of 20 years that the Will of 1978 was a forged and fabricated document.
29. The fact that the Will of 1978 revokes the earlier Will including the Will in question in the present case is not in dispute. There are specific wordings in the Will of 1978 to this effect. It is not even a case where some part of the properties can be said to be dealt with by the Will of 1978 while the others of 1974 so that they may operate in different fields. The Will of 1978 clearly revokes the earlier Will of 1974. The response to the present application by the petitioners is based on the plea that the Will of 1978 is fabricated, which, as stated above, cannot be accepted. There would be no requirement of conformity with the provisions of Section 68 of the Evidence Act in view of this clear admission as held by the Kerala and Andra Pradesh High Courts in Thayyullathil Kunhikannan and Ors. case (supra) and Valluri Jaganmohini Seetharama Lakshmi and Anr. case (supra) respectively.
30. A reference to the provisions of the said Act would show that Section 53 and Section 213 would have material bearing on this issue which are as under :
"53. Division of share of predeceased child of intestate leaving lineal descendants - In all cases where a Parsi dies leaving any lineal descendant, if any child of such intestate has died in the lifetime of the intestate, the division of the share of the property of which the intestate has died intestate which such child would have taken if living at the intestate's death shall be in accordance with the following rules, namely:
(a) If such deceased child was a son, his widow and children shall take shares in accordance with the provisions of this Chapter as if he had died immediately after the intestate's death:
Provided that where such deceased son has left a widow or a widower of a lineal descendant but no lineal descendant, the residue of his share after such distribution has been made shall be divided in accordance with the provisions of this Chapter as property of which the intestate has died intestate, and in making the division of such residue the said deceased son of the intestate shall not be taken into account.
(b) If such deceased child was a daughter, her share shall be divided equally among her children.
(c) If any child of such deceased child has also died during the lifetime of the intestate, the share which he or she would have taken if living at the intestate's death, shall be divided in like manner in accordance with clause (a) or clause (b) as the case may be.
Page 2430
(d) Where a remote lineal descendant of the intestate has died during the lifetime of the intestate, the provisions of clause (c) shall apply mutates mutants to the division of any share to which he or she would have been entitled if living at the intestate's death by reason of the pre-decease of all the intestate's lineal descendants directly between him or her and the intestate."
213. Rights 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, or and shall only apply -
(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 (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 immoveable property situated within those limits."
31. It is thus apparent that no right as executor can be established in any Court unless probate or letters of administration have been obtained of the Will in view of the provisions of Section 213 of the said Act. However, the said Section 213 would have no applicability in Delhi and it is not necessary to obtain probate of a Will in Delhi before any claim is based on that Will. A person has a right to set up a Will even in collateral proceedings and there is no need of obtaining probate thereof. In this behalf, reference may be made to the judgment in Behari Lal Ram Charan v. Karam Chand Sahni, AIR 1968 Punjab 108 which has been followed by this Court in Sardar Prithipal Singh Sabharwal v. Jagjit Singh Sabharwal 1996 III AD (Delhi) 281. It was observed in Behari Lal Ram Charan case (supra) as under :
"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 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 purpose. therefore, where both the person and property of any Hindu, Budhist, Sikh or Jaina are outside the territories mentioned above, the rigour of Section 213, sub-section (1) is not attracted Page 2431
32. A similar view was also taken by the learned Single Judge in Murlidhar Dua and Ors. v. Shashi Mohan, and Santosh Kakkar and Ors. v. Ram Prasad and Ors., 71 (1998) DLT 147. It was held that the provisions contained in Section 213 of the said Act requiring probate do not apply to Wills made outside Bengal and the local limits of ordinary original jurisdiction of High Courts of Madras and Bombay except where such Wills relate to property situated in territories of Bengal of within the aforesaid local limits. In a recent judgment of the learned Single Judge of this Court in Mrs. Winifred Nora Theophilus v. Mrs. Lila Deane and Ors., . It was observed in para 10 as under :
"10. On interpretation of Section 213 read with Section 57(a) and (b), the Courts have opined that where the Willis made by Hindu, 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 Court 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 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 Delhi by Hindu, Buddhist, Sikh or Jaina, no probate is required."
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.
34. The question is if the subsequent Will has been admitted between the parties including by the petitioners, then can probate be granted of an earlier Will, assuming it to be an admitted Will? The answer to this question is in the negative in view of the clear provisions of Section 276 of the said Act which mandates that a probate can be granted only of the last Will and testament of the deceased. This last Will and testament is of the year 1978 and thus the petition for grant of the probate of an earlier Will cannot be entertained. Such a petition would be clearly barred by law.
35. There are situations which arise where different wills are propounded by the parties. The grant of the probate of an earlier Will is dependent on whether the subsequent Will is proved in accordance with law. In the present case the subsequent Will has been unequivocally admitted by the parties. It is not a mere case of recital of this document being the Will in the partnership deed and thus the principles in Purna Bai and Ors. case (supra) of the Division Bench of the Andhra Pradesh would have no application in the facts of the present case. An adjudication about the rights flowing from a Will in a Civil Court as distinct from the admission of the parties in this civil proceedings Page 2432 about the validity and execution of the Will must be kept in mind. It is the admission of the petitioners in respect of the suit proceedings about the Will which stands against the petitioners.
36. It cannot be ignored that the petitioners in their wisdom did file an application for recall of the preliminary decree fled in a civil suit on the basis of the discovery of the present Will in question. This was not an application merely under the provisions of Sections 151, 152 of the Code but an application under Sections 151, 152 and 153 of the Code which makes it clear that the principles of State of Punjab v. Darshan Singh case (supra) would not apply. The petitioners invoked the inherent jurisdiction of this Court to remedy what they felt was injustice. This plea was subsequently declined by the learned Single Judge. The learned Single Judge held that it was too late in the day to cast doubts on the Will of 1978 and this judgment of the learned Single Judge has been affirmed by the Division Bench by dismissing the appeal in liming. Thus the issue of admission of the execution and validity of the Will of 1978 by the petitioners Will stands.
37. I am thus of the considered view that the petition filed by the petitioners would be barred by the provisions of Section 276 of the said Act inasmuch as the Will in question is not the last Will and testament of the deceased testator.
38. The result is that the application of respondent No. 2 is liable to be allowed leaving the parties to bear their own costs.
Test. Cas. 17/2002
39. In view of the application under Order VII Rule 11 of the Code being allowed, the probate petition is liable to be dismissed leaving the parties to bear their own cost.