Mrs. Winifred Nora Theophilus vs Mr. Lila Deane & Others
2001 Latest Caselaw 852 Del

ORDER

A.K. Sikri, J.

1. Both these applications can be disposed of by this common order inasmuch as IA.8120/98 is filed by the plaintiff under Order XXXIX Rules 1 and 2 read with Section 151 CPC for an ex-parte ad-interim injunction and IA. 9965/98 is filed by the defendant Nos. 1, 3, 4 and 5 under Order XXXIX Rule 4 CPC for vacating ex-parte injunction order dated 17-9-98 passed in IA.8120/98. Briefly stated that the suit is filed by the plaintiff for partition and injunction. It is mentioned in the plaint that parties are Indian Christians as defined in Section 2(d) of the Indian Succession Act, 1925. The pedigree table of the family of the parties is shown in para-1 of the plaint.

2. The dispute is about the inheritance of the property of Ms. Pricilla Violet Mukha who according to the plaintiff was a spinster and died on 26-11-1995 by intestate i.e. without executing any will. The plaint avers that as per the provision of Section 47 of the Indian Succession Act, 1925, the property is to be divided in the following manner:

a) Mrs. Winifred Nora Theophilus           -        1/3
   (Plaintiff)

b) Mrs. Lila Deane              1/5 out of 1/3 i.e. 1/15
   (Defendant No. 1)

c) Mrs. Bimla Dwyer                -do-             1/15)
   (Defendant No. 2))

d) Mr. Raju Mukha                  -do-             1/15) 1/3
   (Defendant No. 3))

e) Miss. Miracle Mukha             -do-             1/15)
   (Defendant No. 4))

f) Wing Commander Regional         -do-             1/15)
   (Defendant No. 5)

g) Mrs. Roomily Empanel             -                1/3
   (Defendant No. 6)   
 

 3. 

Some portion of the property in question, namely, 18, Sampan Bazaar, Ganger, Boggle, New Delhi is in possession of the plaintiff and other different portions are in possession of defendants 1 to 5. The plaintiff claims to be in actual physical possession, use and occupation of three rooms, kitchen, bath room and terrace on the first floor of the said property as a co-sharer/joint owner which has been shown in yellow colour denoted by words E F G H I J K L in the plan filed by the plaintiff along with the plaint. In this portion previously the husband of the plaintiff was residing as tenant of Ms. Pricilla Violet Mukha at a monthly rent of RPS. 350/- and after his death the plaintiff became the tenant under Ms. Pricilla Violet Mukha now deceased. IA. 8120/98 was filed along with the plaint for ad-interim injunction from restraining the defendants from alienating, transferring, disposing of or creating any charge in the said suit property. On 17-9-1998 while issuing summons in the suit, ex-parte order was passed to the effect that no third party interest shall be created by the defendants on any specific portion of the property in dispute and possession shall not be handed over to any third person in respect of any specific portion of the property.

4. The stand of defendants 1, 3, 4 and 5 in IA. 9965/98 filed under Order XXXIX Rule 4 CPC is that the deceased had left behind a will executed by her on 24-5-1993 in respect of suit property. This will was duly registered with the Sub-Registrar as No. 2587 in Additional Book No. III, Volume 732 at Pages 150 to 152 and registered on 24-5-1993. According to the said will she had bequeathed the said property in the following manner:

1. The portion of the suit property (i.e. Half Portion) built on Chaser Nos. 316 and 289 in favor of the Defendant No. 5 i.e. Wg. Cdr. Reginald Mukha:

2. The portion of the Suit property built on Khasra No. 315 on the side of Samman Bazar Road, jointly in favor of the Defendant Nos. 1 and 4: and

3. The remaining portion of the suit property built on Khasra No. 290 on Church Lane side in favor of Mr. Ronald Mukha described in the suit by the name of Raju Mukha, as defendant No. 3 in the suit.

5. Thus according to the defendants different portions of the property have been bequeathed by the deceased in favor of defendants 1, 3, 4 and 5 only and nothing is given to the plaintiff. The plaintiff has, therefore, no right, title or interest in the property as deceased has not inherited any property.

6. It may be stated at this stage that the plaintiff had also filed IA. 1376/99 seeking direction that defendants may place on record the original will alleged to have been executed by the deceased and supply the photostat copies thereof to the plaintiff. In reply to this application, it is stated that when the cupboard of the deceased Testator was opened in the presence of the defendant No. 5, it was found that the document of will in the custody of the deceased Testator had been completely damaged by white ants. However, the defendants have obtained certified copy of the said will from the Office of the Sub-Registrar which has bene filed as Annexure-1 to the said reply. Along with that affidavits of both the attesting witnesses have been filed as Annexures 2 and 3. Therefore, no further orders in this application are required which stands disposed of.

7. No reply to IA. 9965/98 has been filed on behalf of the plaintiff. The argument of the plaintiff is that the will is not probated. The submission of learned counsel for the plaintiff is that the parties were Christian and, therefore, as per the provision of Section 213 of the Indian Succession Act, 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. Therefore, in the absence of there being a probate of the will, no right is accrued in favor of the executor or the legatee as held in the case of Gandabhai Ranchhodji Gandhi Vs. Noshir Ka Vasji Sabowa's and others and in the case of Dwarka Nath Singh and others Vs. Mt. Raj Rani and others AIR 1932 Oudh 85.

8. On the other hand learned counsel for the defendants submitted that in Delhi no probate was required in respect of a will to administer the property. In support of his submission he relied upon the following judgments:

1. Murli Dhar Dua & Others Vs. Shashi Mohan, .

2. Arjan Dass Vs. Madan Lal 1970 RCR Vol.2 (Delhi) 785.

3. Didar Singh Cheeda Vs. Sohan Singh Ram Singh .

4. Behari Lal Ram Charan Vs. Karam Chand Sahni & Others .

9. In order to appreciate the controversy, let us first scan through the provision of Section 213 of the Indian Succession Act, 1925. This section reads as under:

"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 Jaina where such wills are of the classes specified in clauses (a) an d(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 immovable property situated within those limits".

10. The provision of sub-Section 1 of Section 213 clearly put a complete embargo on the right as execution or legatee under the will unless the Court of competent jurisdiction in India has granted probate of the will. Sub-Section 2 of Section 213 specifies that this Section would not apply to wills by Muhammadans. Thus so far as will executed by a Muhammadan is concerned, it is not necessary to obtain any probate from the court to establish the right as executor or legatee under the will. Sub-Section 2 further carves out the category to which this Section shall apply. Clause (ii) thereof relates to the wills made by any Parsi dying, after the commencement of Indian Succession Act, 1962 where such wills are made within the local limitation of the High Courts of Calcutta, Madras and Bombay. In first category are included the wills made by any Hindu, Buddhist, Sikh or Jaina where such wills are of classes specified in Classes (a) & (b) of Section 57. Clauses (a) and (b) of Section 57 read as under:

"[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 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

(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".

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, Buddhist, Sikh and Jaina and were subject to that 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 immoveable property within the aforesaid territories that embargo contained in Section 213 shall apply. From this it stands concluded that if will is made by Hindu, 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 leaned 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 immoveable property in Delhi by Hindu, Buddhist, Sikh or Jaina, no probate is required.

12. The question, however, to be determined in this case is as to what would be the position if the will is executed by a Christian. Sub-Section 1 of Section 213 states in general terms that no right accrues in favor of executor or legatee unless the will is probated. Sub-Section 2 carves out certain exceptions. Insofar as Muhammadans are concerned this Section does not apply all. However, insofar as Hindu, Buddhist, Sikhs, Jaina or Parsi are concerned, it is mentioned that this Section 213 shall apply when the conditions specified in Sub-Section 2 in relation to the wills executed are specified. There is no mention about Christian at all in sub-Section 2. This omission is significant. Thus combined reading of sub-Section 1 and sub-Section 2 of Section 213 would show that the embargo contained in Section 213 shall apply except in those cases which are exclusively excluded by sub-Section 2. Since there is no mention at all of Christian in sub-Section 2 it naturally follows that in respect of Christians the general rule contained in sub-Section 1 would apply in all circumstances and, therefore, unless the will is probated no right as executor or legatee can be established in any Court of Justice. Simply put the matter can be summarised as under:

1. No right as executor or legatee can be established in any Court unless the probate to the will has been granted by the Court of competent jurisdiction.

2. This section/provision has no application in cases of wills made by Muhammadans.

3. In case of wills made by Hindu, Buddhist, Sikh, Jaina and Parsi it shall only apply if conditions stated in sub-Section 2 (i) & (ii) are fulfillled.

4. In case of will executed by a person of all other religions which would include Christian, provision of Section 213 shall fully apply.

13. Indication to this effect can be found in the following observations in the case of Dwarka Nath Singh and others Vs. Mt. Raj Rani and others AIR 1932 Oudh 85:

"As Thakur Shankar Bakhush Singh has admittedly embraced Christianity and was a Christian at the time of his death, succession to his estate was governed by the Succession Act, and as the plaintiffs based their title on the will alleged to have been executed by him they could not establish their claim before obtaining probate of the alleged will under S.213, Succession Act".

14. Another case which comes close to the aforesaid proposition is Mrs. Hem Nolini Judah (since deceased) and after her legal representative Mrs. Marlean Wilkinson Vs. Mrs. Isolyne Sarojbashini Bose and others . Although this issue was not decided by Supreme Court in clear terms, that case related to the will executed by the Christians and interpreting the provision of Section 213 of the Indian Succession Act, the Court held as under:

"Whosoever wishes to establish that right whether it be a legatee or an executor himself or somebody else who might find it necessary in order to establish his right to establish the right of some legatee or executor from who he might have derived title he cannot do so unless the will under which the right as a legatee or executor is claimed has resulted in the grant of a probate or letters of administration".

15. Interestingly in Behari Lal Ram Charan Vs. Karam Chand Sahni & Others (supra) the Court while holding that probate of will not necessary in case where both the person and property of any Hindu, Buddhist, Sikh or Jaina are outside the territories specified in S.57(a) and, therefore, in Delhi probate was not required, the aforesaid judgment of Supreme Court in the case of Mrs. Hem Judah (since deceased) and after her legal representative Mrs. Marlean Wilkinson Vs. Mrs. Isolyne Sarojbashini Bose and others (supra) was distinguished in the following manner:

"Reference was made by the learned referring Judge to a decision of the Supreme Court in Mrs. Hem Nalini Vs. Mrs. Isolyne Sarojbashini Bose, but the parties in that case were christians (to whom it is agreed Section 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)".

16. Thus even these observations are pointer towards the view I am taking.

17. In view of the aforesaid, it is necessary for the defendants to obtain the probate of the will from the Court of competent jurisdiction before any right can be established in their favor. The judgments cited by learned counsel for the defendants are not applicable as in those cases it is held that in Delhi no probate is required but the cases relate to the wills executed by Hindu, Buddhist, Sikh, etc.

18. As the will allegedly executed by the deceased has not been probated yet, no right stands established on the basis of this will. The interim injunction passed in this case, therefore, needs to be confirmed. The application i.e. IA. 8120/98 is accordingly allowed and the I.A. 9965/98 is dismissed. The interim order dated 17-9-1998 is confirmed till the disposal of the suit. However, it would be open to the defendant to apply for variation of the order in case the probate of the will is granted by the competent court.