Mukesh Ramchandra Bhardwaj vs Usha Vasantrao Kathale
2005 Latest Caselaw 497 Bom

JUDGMENT

D.D. Sinha, J.

1. Heard Mr. Samarth, learned Counsel for the Applicant and Mr. Jibhkate, learned Counsel for the non-applicant-respondent.

2. Civil Revision Application is directed against the Order, dated 16th December, 2000, passed below Exh.79 by Trial Court, whereby the application moved by the non-applicant-respondent under Order 22 of the Civil Procedure Code came to be allowed and the respondent is allowed to contest Regular Civil Suit No. 222 of 19992, as prayed.

3. Mr. Samarth, the learned Counsel for the applicant, submitted that the original plaintiff - Umabai widow of Mahadevrao Hirde filed Regular Civil Suit No. 222 of 1992 against the applicant and during the pendency of the suit, on 22nd October, 1996, Smt. Umabai expired. Mr. Samarth, the learned Counsel for the applicant, submitted that it is the case of the non-applicant-respondent that Umabai executed the alleged registered Will, dated 25th August, 1992 in favour of the non-applicant-respondent and as per the alleged Will, after the death of Umabai, the respondent would become the legal heir. It is submitted that on the basis of the above referred Will, the respondent made an application (Exh.79) under Order 22 of the Civil Procedure Code, which was allowed by the Trial Court, though the respondent did not obtain a probate of the Will as required by Sub-section (1) of Section 213 of the Indian Succession Act, 1925 as well as as per the law laid down by this Court in the case of Babasaheb Yeshwant Anandrao Patil v. Smt. Manjulabai Balwant Gaikwad, 2001 (2) Mh.L.J. 945 = 2001(2) ALL MR 574. Mr. Samarth, the learned Counsel for the applicant, therefore, submitted that the impugned Order is violative of the provisions of Section 213 of the Indian Succession Act as well as the above referred law laid down by this Court and, therefore, cannot be sustained in law.

4. Mr. Jibhkate, the learned Counsel for the non-applicant-respondent, on the other hand, supported the impugned order passed by the Trial Court and contended that in the instant case the provisions of Sub-section (1) of Section 213 of the Indian Succession Act, 1925, are not attracted, since the Will, dated 25th August, 1992, executed by Umabai is in respect of movable property only, namely the deposits in the Bank at Bhandara and, therefore, it does not fall within the ambit of Sub-clauses (a) and (b) of Section 57 of the Indian Succession Act and, therefore, in view of provisions of Sub-clause (c) of Section 57 of the said Act, the respondent is not required to obtain the Probate of the Will, dated 25th August, 1992. In order to substantiate this contention, reliance is placed on the judgment of this Court in the case of Jyoti wife of Jagdish Singhai v. State of Maharashtra, 1979 Mh.L.J. 308.

5. I have considered the contentions canvassed by the respective counsel, perused the provisions of Sections 213 and 57 of the Indian Succession Act, 1925 as well as the Judgments relied and cited by the respective counsel. In the instant case, the following facts are not disputed :--

(1) Smt. Umabai Mahadevrao Hirde filed a Regular Civil Suit bearing No. 22 of 1992 against the present applicant.

(2) She died on 22nd October, 1996 during the pendency of the suit.

(3) The respondent made an application (Exh.79) under Order 22 of the Civil Procedure Code on 10th November, 1996 for getting impleaded in the suit in place of original plaintiff - Umabai as her legal representative to prosecute the suit and the Trial Court, vide impugned Order, dated 16th December, 2000, allowed the said application and the respondent was permitted to prosecute the Regular Civil Suit.

6. It will be appropriate, at this stage, to consider the relevant provisions of the Indian Succession Act before I adjudicate upon the issue in the instant Revision Application. Section 213 of the Indian Succession Act contemplates that no right as executor or legatee can be established in the Court of Justice, unless a Court of competent jurisdiction has granted probate of the Will under which the right is claimed, or has granted letters of administration with the Will. It is, therefore, evident that till such time a Court of competent jurisdiction grants probate of the Will, no right as executor or legatee can be said to accrue to such person. In other words, a person can be said to be a legatee or legal representative only after the probate of Will is granted by the Court of competent jurisdiction. However, the scheme of provisions of Section 213 of the Act needs to be understood in its right perspective and, therefore, Sub-section (1) of Section 213 cannot be read in isolation and will have to be considered in the backdrop of Sub-section (2)(i) of Section 213 of the Act.

7. Sub-section (2) of Section 213 postulates that this Section 213 shall apply only in the case of Wills made by any Hindu, Buddhist, Sikh or Jaina where such Will are of the classes specified in Clauses (a) and (b) of Section 57 and as well as in the case of Wills made by Parsi etc. In the instant case, this Court is not concerned with Sub-clause (ii) of Sub-section (2) of Section 213 of the Indian Succession Act, and is concerned with Sub-clause (i) of Sub-section (2), which demonstrates that provisions of Section 213 of the Act shall apply only in respect of the cases specified in Clauses (a) and (b) of Section 57 of the Indian Succession Act and, therefore, it will be appropriate to refer to and consider these clauses of Section 57, Clause (a) of Section 57 applies to the Wills executed by Hindu, amongst others, on or after the first day of September, 1870, within the territories mentioned therein. The provisions of this clause demonstrate that they would apply to the Wills relating to movable as well as immovable properties situated within the territories mentioned in that clause, provided the Will is executed by Hindu, Budhist, Sikh or Jaina after the first day of September, 1870. Similarly, Clause (b) will apply in regard to the Wills executed by Hindu, Buddhist, Sikh or Jaina on or after first day of September, 1870 outside the territories mentioned in Clause (a), but only if such a Will relates to immovable property situated within those territories. Similarly, Clause (c) will apply to the Wills executed by Hindu, Buddhist, Sikh or Jaina on or after the first day of January, 1927, provided such Will is not covered under Clauses (a) and (b).

8. In the instant case, as the Will, dated 25th August, 1992, executed by original plaintiff - Umabai is in respect of the movable property, i.e. the Bank deposits lying in the Bank at Bhandara, which is not within the territories mentioned in Clause (a) of Section 57 of the Act and, therefore, Clause (a) of Section 57 is not attracted. Similarly, in the case in hand, though the property is situated outside the territories mentioned in Clause (a) of Section 57 of the Act, however, the property under the Will not being the immovable property, the provision of Clause (b) of Section 57 is also not attracted. In the instant case, the Will, dated 25th August, 1992, executed by Umabai being a Hindu and is admittedly executed after first day of January, 1927 and since the provisions of Clauses (a) and (b) are not applicable to the Will in question and, therefore, as per the scheme of Sub-clause (i) of Sub-section (2) of Section 213 of the Act, Sub-section (1) of Section 213 is not at all attracted and, therefore, it is not necessary for the non-applicant to obtain a probate of the Will in order to establish her right as legatee for submitting an application under Order 22 of the Civil Procedure Code. I concur with the view expressed by this Court in the case of Jyoti Jagdish Singhai (cited supra).

9. So far as the case of Babasaheb Yeshwant Anandrao Patil (cited supra) is concerned, this Court did not take into consideration the entire scheme of Section 213 of the Indian Succession Act enumerated in Sub-sections (1) and (2) of Section 213 of the Act and interpreted Sub-section (1) of Section 213 individually by ignoring the mandate of Sub-section (2)(i) of Section 213 of the Act, which is impermissible under the scheme of Section 213 of the Act, since the application of provisions of Sub-section (1) of Section 213 is restricted only to the contingencies mentioned in Sub-clause (i) of Sub-section (2) of Section 213 of the Act and, therefore, it does not demonstrate correct interpretation of the scheme of Section 213 of the Act and, therefore, in the facts and circumstances of the present case, it is of no help to the applicant.

For the reasons stated hereinabove, the order impugned is just and proper. Revision suffers from lack of merit. The same is dismissed. No order as to costs.