1. Malik Kirpal Singh, the brother of Malik Anup Singh plaintiff, died on 18-1-1959. The petitioners in this Court are his widow, son, the defendants in the suit filed by Malik Anup Singh for a declaration, out of which the present revision petition has arisen. The plaintiff in the suit claimed that Malik Kirpal Singh made a will, dated 7-1-1959, whereby he disinherited the defendants and gave all the property to his younger brother Malik Inder Singh. It is further said that Malik Inder Singh applied for grant of succession certificate to collect the assets of Malik Kirpal Singh.
2. The defendants also made a similar application and when both the applications were pending, Malik Inder Singh died on 11-12-1963. The plaintiff has claimed that he is entitled to all the assets left by Malik Inder Singh, who appointed him as the sole legatee under a registered will, dated 7-12-1963. That property, according to the plaintiff, would also include the property inherited by Malik Inder Singh from Malik Kirpal Singh. In these circumstances, the plaintiff has prayed for a declaration that, “It be declared that Malik Kirpal Singh did execute a will, dated 7-1-1959, in favour of Malik Inder Singh and that Malik Inder Singh did execute a will, dated 7-12-1963, in favour of the plaintiff and by this derivative title, the plaintiff is entitled to collect the debts and dues as mentioned in Para No. 3 of the plaint.”’ The defendants raised various objections, which resulted in framing of seven issues. Issues Nos. 1, 2, 3 and 4 were treated as preliminary issues and all decided against the defendants.
3. Mr. G.S Vohra, learned counsel for the petitioners, has challenged the correctness of the said judgment, dated 24-7-1965. First, he says that the suit is barred by Teason of the provisions of the Indian Succession Act, 1925, and the only remedy available to the plaintiff was to obtain letters of administration or probate to the alleged will. He has mainly relied on Ss. 213, 214, 227, 263, 264 and 273. According to him, the scheme of the whole Act shows that the only remedy for a person placed in the position of the plaintiff could be to obtain a probate and the filing of the suit is excluded. Placing particular emphasis on Ss. 213 and 214,. Mr. Vonra says that no right as executor or legatee can be established in any Court, unless a Court of competent jurisdiction has granted probate of the will, which Court, according to Mr. Vohra, is the Court of he District Judge. It is further said that by virtue of S. 214 no decree can be passed against a debtor of a deceased person for payment of his debt to a person claiming on succession to be entitled to-the effects of the deceased person or to any part thereof except on production of probate or letters of administration evidencing the grant to him of administration to the estate or the deceased. Reliance has been placed on Ganshamdoss Narayandoss v. Gulab Bi Bai, AIR 1927 Mad 1054 (FB) and Kesar Singh v. Smt. Tej Kaur, (1961) 63 Pun LR 473 : (AIR 1961 Punj 509). In Ganshamdoss's case, it was held that even a defendant cannot use an unprobatedi will as a defence.
4. That decision was based on Section 187 of the Indian Succession Act of 1865, which corresponds to Section 213 of the present Act. That judgment can have no applicability to the present case inasmuch as sub-s. (2) of S. 213 excludes the applicability of S. 213(1) in the case of wills made by Muhammadans and wills made by any Hindu, Buddhist, Sikh or Jain where such wills as are of the classes specified in Cls. (a) and (b) of S. 57. Reference to Cls. (a) and (d) of S. 57 would show that S. 213 will only apply (a) to wills made within the territories which on the first day of September 1870, were subject to Lieutenant Governor of Bengal or within the local limits of the ordinary original civil jurisdiction of the High Courts of Judicature of Madras and Bombay, and (b) to all such wills and codicils made outside those territories and limits as relate to immovable property situate within those territories or limits. Section 213 of the said Act being not applicable to the present will, it is no bar to a plaintiff to establish his right as executor or legatee by a regular suit.
5. So far as Kesar Singh's case, 63 Pun LR 473 : (AIR 1961 Punj 509), is concerned, sub-s. (2) of S. 213 does not appear to have been brought to the notice of Shamsher Bahadur, J. and, therefore, does not carry the matter any further. Shamsher Bahadur, J. placed reliance on a judgment of the Patna High Court in Babulal Mandal v. Abala Bala, (S) AIR 1955 Pat 126. The above distinction would obtain even with respect to the said Patna decision. The provisions of S. 213 are made applicable to territories subject to the Lieutenant Governor of Bengal on first day of September 1870. Patna being subject to the Lieutenant Governor of Bengal on that day, S. 213 would be applicable. So far as S. 214 is concerned, it only operates as a bar against passing of a decree against a debtor of a deceased person for payment of his debt. In the present suit, no debtor of the deceased person has been sued and consequently the said bar would not be operative.
6. It is then argued on behalf of the petitioners that the respondent is not entitled to a declaration simpliciter by reason of Section 34 of the Specific Relief Act.
7. Mr. Vohra says that probate is a judgment in rem while the decree passed in the present suit would only operate as a judgment in personam, with the result that the debtors of the deceased would not be obliged to pay by reason of this decree. It is said that in these circumstances the only appropriate procedure to be adopted ought to have been for the plaintiff to apply for a probate of the will. Mr. Vohra has also placed reliance on Thakurji Maharaj v. Kamta Prasad, AIR 1929 All 974; Suryanarayanmurti v. Tammanna, (1902) ILR 25 Mad 504; and The Maharaja of Benaras v. Ramji Khan, (1904) ILR 27 All 138, as cases illustrative of the circumstances, in which the Courts have declined to decree a mere declaration on the ground that the plaintiff could ask for a further relief which he had failed to do. I am not impressed by this argument at all. In my opinion, having regard to the circumstances, the plaintiff was entitled to sue for a mere declaration against the persons denying or interested in denying his right to the property in the hands of third parties.
8. Lastly, Mr. Vohra, referring to Section 9 of the CPC, said that the present suit ought to be held barred by implication. This argument is really another branch or facet of Mr. Vohra's first argument. He says that the Indian Succession Act being exhaustive on the subject the resort to ordinary civil suit ought to be held excluded by implication from the jurisdiction of the civil Courts. As I have already said, no provision of the Indian Succession Act being a bar to the present suit, the question of exclusion of jurisdiction by implication cannot arise.
9. In the result, this petition fails and is dismissed, but the parties will bear their own costs.
10. The parties will appear before the trial Court on 10-1-1966.
EJ/RKC/G.G.M
11. Petition dismissed.