- Bookmark
- Share
- CaseIQ
Kesar Singh And Others v. Shrimati Tej Kaur .
Factual and Procedural Background
Kesar Singh and others filed an application for the grant of a succession certificate concerning the estate of Dhan Devi, who died on 31 March 1959. The appellants claimed to be collaterals of Ala Singh, husband of the deceased Dhan Kaur. Their claim, made on 25 July 1959, was rejected by the Subordinate Judge. The trial court also considered a competing claim by Tej Kaur, who propounded a will in her favour executed by Dhan Devi. Before evidence was recorded, Guro and Nimo, daughters of Chattar Singh (a relation of Ala Singh), also applied for the succession certificate. The trial court denied the appellants’ request for an adjournment and rejected their claim for failure to produce a pedigree table proving connection to the common ancestor Ram Singh. The court granted the succession certificate to Tej Kaur without examining or requiring proof of the will. The appellants appealed against this order.
Legal Issues Presented
- Whether a succession certificate can be granted in favour of a claimant relying on a will that has not been probated or for which letters of administration have not been granted.
- Whether the trial court erred in granting a succession certificate without requiring proof of the will’s due execution or probate.
Arguments of the Parties
The opinion does not contain a detailed account of the parties' legal arguments.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Ganeshdoss Narayandoss v. Gulab Bi Bai, I.L.R 50 Mad. 927 | Section 187 of the Indian Succession Act (corresponding to section 213 of the 1925 Act) bars claims under a will unless probate or letters of administration have been granted. | Established that no will can be set up to assert or defeat a claim without probate or letters of administration; the court relied on this to hold that Tej Kaur’s claim was invalid. |
| Babulal Mandal v. Abala Bala, A.I.R 1955 Pat. 126 | Confirmed that rights under a will cannot be established unless the will has been probated or letters of administration with the will annexed have been granted. | Supported the principle that the succession certificate could not be granted based on an unprobated will; cited to reinforce the decision to set aside the trial court’s order. |
Court's Reasoning and Analysis
The court found the trial judge’s order wholly unsupportable because it granted a succession certificate to Tej Kaur based solely on a will that had not been probated nor had letters of administration been granted. The court referred to sub-section (1) of section 370 and section 213 of the Indian Succession Act, which prohibit granting succession certificates in respect of debts or securities where rights under a will require probate or letters of administration. The court relied on binding precedents that clearly establish that no claim can be made under a will without such probate or letters. The trial court’s failure to examine or require proof of the will’s validity or probate was a fundamental error. Consequently, the appellate court set aside the order, emphasizing that parties must establish their rights in accordance with the statutory requirements before a succession certificate can be granted.
Holding and Implications
DISPOSED OF
The appeal was allowed and the order of the Subordinate Judge granting the succession certificate to Tej Kaur was set aside. The direct effect is that no succession certificate shall be granted on the basis of the unprobated will. The parties are free to pursue their rights through appropriate legal channels. No order as to costs was made. The decision does not create any new precedent but reinforces the established legal requirement that probate or letters of administration must precede the grant of a succession certificate when claims are made under a will.
Shamsher Bahadur, J.:— This is an appeal by Kesar Singh and others who had applied for the grant of a succession certificate in respect of the estate of Dhan Devi who died on the 31st of March 1959. The appellants claimed to be the collateral of Ala Singh, husband of the deceased Dhan Kaur. The claim made by the appellants in their application of the 25th of July 1959 did not find favour with the Subordinate Judge who also dealt with the competing claim of Tej Kaur who propounded a will in her favour executed by Dhan Devi. Before the evidence came to be recorded, Guro and Nimo daughters of Chattar Singh a relation of Ala Singh, prayed for the grant of a succession certificate.
2. The claim of the appellants was repelled on the ground that they had not produced any pedigree table to show their connection with the common ancestor Ram Singh. A request on behalf of the appellants for a further adjournment was not granted by the trial Court.
3. The Court further observed that the claim of the appellants as also of Guro and Nimo for the grant of a succession certificate could not be entertained because Tej Kaur had set up a will of Dhan Devi in her favour. Without examining the contents of the will or asking for its proof, the learned Judge proceeded to grant a succession certificate to Tej Kaur. It is against this order that the appellants Kesar Singh and others have come up in this appeal.
4. There can be no manner of doubt that the order passed by the trial Judge is wholly insupportable. The Court has granted a succession certificate in favour of Tej Kaur whose basis for the claim was a will in respect of which no probate has been sought or granted. Under sub-section (1) of section 370 of the Indian Succession Act “A succession ……… shall not be granted under this Part with respect to any debt or security to which a right is required by section 212 or section 213 to be established by letters of administration or probate”. Under section 213 of the Act no legatee can set up a right “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.” Tej Kaur claiming under the will of Dhan Kaur should, therefore, either as an executor or a legatee have obtained a probate or letters of administration before a succession certificate could be granted under section 370. This matter was settled a long time ago by a Full Bench decision of the Madras High Court in Ganeshdoss Narayandoss v. Gulab Bi Bai . I.L.R 50 Mad. 927. It was held therein that section 187 of the Indian Succession Act corresponding to section 213 of the Indian Succession Act, 1925 is a bar to every one claiming under such a will, whether plaintiff or defendant. No will could be set up either to assert or defeat a claim on the basis of a will which is not probated and in respect of which no letters of administration had been granted. This authority was relied upon in a recent Division Bench Judgment of the Patna High Court in Babulal Mandal v. Abala Bala . A.I.R 1955 Pat. 126., where Sinha, J. (now Chief Justice of the Supreme Court) observed thus at page 128:—
“On a plain reading of this section, it is clear that unless the will has been probated or letters of administration, with the will or with a copy of the will annexed, have been granted, no right under the will can be established by an executor or a legatee”.
5. It is indeed a matter of surprise that the trial Court acted on the basis of a will without any proof of its due execution or probate. The order appealed from, therefore, cannot be sustained either in its reasoning or conclusion. The result is that this appeal is allowed and the order of the Subordinate Judge set aside. The parties may hereafter take such action for the assertion of their rights as they are advised. As none of the competing parties has been able to establish his claim, there would be no order as to costs.
6. Appeal allowed.
Alert