(1) This revision petition has arisen in the following circumstances. Sardara Singh respondent had applied for the grant of succession certificate regarding a sum of about Rs. 3,000/- lying in a Savings Bank account of Shrimati Bhag Bhari deceased, claiming to be her heir as nephew of here late husband. The present petitioner Ram Chand opposed the application and claimed that he should be given the succession certificate on the ground of a will made by the deceased in his favour on the 28th of August 1958. He is apparently the brother of the deceased.
(2) After the parties had led evidence the point was apparently raised that Ram Chand could not claim the property on the basis of a will without having obtained probate, reliance on this point being placed on the decision of Shamsher Bahadur, J. in Kesar Singh v. Smt. Tej Kaur, 63 Pun LR 473: (AIR 1961 Punj 509). This contention prevailed and the lower Court passed an order staying proceedings for two months for the purpose of allowing Ram Chand to obtain probate from the appropriate Court.
(3) This order is challenged in the present petition by Ram Chand who claims that no probate is necessary. On this point he relies on the decision in Sohan Singh v. Bhag Singh, AIR 1934 Lah 599, and Ahemad v. Ghisia Hira, AIR 1945 Nag 237. In both these cases it was held even regarding immovable property that it was not necessary for probate to be obtained in order in set up a title based on a will.
(4) The relevant provisions of Law are contained in Secs. 213 and 57 of the Succession Act of 1925. Section 213 reads:
"(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 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."
The relevant part of Section 57 reads:
"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 immovable property situate within those territories or limits."
(5) 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 relate to immovable property situated within those territories.
(6) 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, ILR 50 Mad 927: (AIR 1927 Mad 1054)(FB). I find, 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 have been granted. This is clearly in accordance with the provisions of Secs. 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.
(7) 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 set up a claim regarding property either moveable 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 parties have been directed to appear on the 4th of December, 1961. The parties will bear their own costs in this Court.
CF/R.G.D.
(8) Revision allowed.