1 sa442-09.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO.442 OF 2009 WITH CIVIL APPLICATION NO.1578 OF 2009 Chandrabai Vithu Havale ..Appellant Vs Jagutai Dyani Havale @ Jagutai Ganesh Kadam and ors. ..Respondents -- Mr.R.N.Kachre, for appellant. -- CORAM : R.G.KETKAR, J. DATE : 3 rd MARCH, 2011 P.C: Heard Mr.R.N.Kachre, learned counsel for the appellant – original plaintiff. 2] This appeal is directed against the judgment and decree dated 11 th August, 2009 passed by the learned District Judge-3, Karad in Regular Civil Appeal No.95 of 2003. By that judgment, learned District Judge allowed the appeal and set aside the judgment and decree dated 18 th August, 2003 passed by the learned Civil Judge Junior Division, Patan in Regular Civil Suit No.152 of 1994. The learned District Judge directed that the executor/legatee – Tanaji Shripati Hawale shall obtain necessary probate from the concerned competent Court of law and thereafter, the 2 sa442-09.sxw learned trial Judge shall decide the suit on the basis of the earlier evidence led by the parties and till that time the suit was stayed. 3] By judgment and decree dated 18 th August, 2003, the learned trial Judge decreed the suit instituted by the plaintiff for partition and separate possession. The learned trial Judge declared that the legal representatives of the plaintiff Chandraba Vithu Hawale, since deceased, namely Tanaji Shripati Hawale has 4/9 th share, defendant no.1 Shripati Vithu Hawale has 3/9 th share and the defendant nos.2 and 3 namely Smt.Savitrabai Dnyanu Havale and Jabutai Dnyanu Havale, respectively, have 1/9 th share each in the suit property as more particularly described in paragraph no.1 of the plaint. The learned trial Judge further held that the plaintiff is entitled to partition and separate possession of his 4/9 th share and the defendants are also entitled to partition and separate possession of their share after payment of requisite fee on their shares. The suit land bearing Gat 302 was sold by the defendant nos.2 and 3 to the defendant no.4. The learned trial Judge directed that the said Gat No.302 be allotted to the share of the defendant nos.2 and 3 as the defendant no.4 acquired valid title of the said land. Aggrieved by this decision, the defendant no.3 preferred Regular Civil Appeal No.95 of 2003. By the impugned judgment, the learned District Judge set aside the trial Court’s judgment and decree. 4] The above Appeal was heard for admission on 10 th November, 2009. By order dated 10 th November, 2009, this Court issued notice to the respondents, returnable after three weeks i.e.on 1 st December, 2003. It was expressly made clear that the notice to mention that the appeal may 3 sa442-09.sxw be decided finally at the stage of admission. Office remark shows that the learned Advocate for the appellant has filed affidavit of service to the effect that the respondent no.1 (original defendant no.3) and the defendant no.2 (original defendant no.1) are served. In so far as respondent no.3 – Laxmibai Ganpat Havale is concerned, by order dated 6 th December, 2010 passed by the Registrar (Judl-I), the Appeal stood abated against her. 5] In view of the provisions of Order 41 Rule 17(2) of the Code of Civil Procedure, 1908 I proceed to hear the appeal as despite of service to the respondent nos.1 and 2 they failed to remain present. The Second Appeal raises following substantial questions of law:- (i) Whether the learned District Judge has properly interpreted and applied provisions of Section 57(a), (b) and Section 213 of the Indian Succession Act, 1925 (for short “the Act”) to the facts and circumstances of the case? (ii) Whether the probate is necessary in respect of Will dated 23 rd December, 1994 made by Chandrabai? 6] The appellant – plaintiff instituted Regular Civil Suit No.152 of 1994 for partition and separate possession of agricultural lands as more particularly described in paragraph nos.1(a) and 1(b) of the plaint and house properties, as more particularly described in paragraph nos.1(c) and 1(d) of the plaint. During the pendency of the suit, Chandrabai expired and Tanaji Sripati Havale was brought on record as her heir and legal 4 sa442-09.sxw representative. Pursuant to this, plaint was amended and paragraph no. 6(a) was added wherein it was set out that Chandrabai had executed Will on 23 rd December, 1994 and bequeathed her share in the suit properties in favour of Tanaji. From the perusal of Will dated 23 rd December, 1994 (exhibit 85) it is evident that it was made at Patan as also it is further evident that the suit properties are situate in Taluka Patan, District Satara. 7] The learned District Judge framed points for determination and the learned District Judge during the course of the judgment came to the conclusion that the Will in question falls within the category of the Wills mentioned in Section 57(b) of the Act. 8] In support of this Appeal, Mr.Kachre has invited my attention to Section 57(a) and (b) as also Section 213 of the Act. He also relied upon the decisions in the case of [1] Jyoti w/o. Jagdish Singhai Vs. State of Maharashtra, 1979 Mh.L.J. 308, [2] Bhagwanji Karsanbhai Rathod Vs. Surajmal Anandraj Mehta, 2004(1)Mh.L.J.62 and [3] Kantabai Mahipat Sonavane Vs. Nimba Onkar Patil, 2000(1) BCR 417. 9] In order to appreciate the controversy raised in the Second Appeal, it will be worthwhile to refer Section 57 of the Act which reads 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- 5 sa442-09.sxw (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 Court 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; and (c)to all Wills and codicils made by any Hindu, Buddhist, Sikh or Jaina on or after the first day of January, 1927, to which those provisions are not applied by clause (a) and (b); Provided that marriage shall not revoke any such Will or codicil. Section 213 of the Act reads as under:- Section 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 [or Indian Christians], and shall only apply- (i) in the case of Wills made by any Hindu, Buddhist, Sikh or Jaina where such Wills are of the 6 sa442-09.sxw classes specified in clauses (a) and (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] As noted earlier, the learned District Judge came to the conclusion that the Will in question is covered by clause (b) of Section 57 of the Act. Whether the learned District Judge was right in coming to that conclusion is the short point involved in this Second Appeal. As indicated earlier, the Will was made at Patan and the properties are also situate in Taluka Patan, District Satara. The learned District Judge has also recorded findings to that effect in the judgment. Perusal of Section 213 of the Act would indicate that 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. Section 213(2) lays down that Section 213 shall not apply in the case of Wills made by Muhammadans (or Indian Christians) and shall only apply to (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) and (b) of Section 57. 7 sa442-09.sxw 11] Section 57 of the Act provides that the provisions of Part VI which are set out in Schedule III shall, subject to the restrictions and modifications specified therein, apply 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. Clause (b) of the said Section provides the provisions of the said part shall apply to the Wills and codicils made outside the those territories and limits so far as relates to immovable property situate within those territories or limits. In the present case, the controversy is in respect of the immovable properties which are situate beyond the territories and limits of the ordinary original civil jurisdiction of the High Court of Bombay. In the instant case, it is evident that the immovable property is situate in Satara District and consequently, no probate is necessary for establishing the right. I am fortified in taking this view by the judgments referred in Paragraph no.8 of the judgment. In the case of Jyoti (supra) after quoting Section 57 of the Act, the learned Single Judge of this Court observed as under :- “ Now clause (a) applies to the wills executed by Hindus amongst others on or after the first day of September 1870 within the territories mentioned therein. It would appear that clause (a) would apply to wills relating to moveable as well as immoveable properties situated within the territories mentioned in that clause, provided the will is executed by a Hindu, 8 sa442-09.sxw Buddhist, Sikh or Jaina after the first day of September 1870. Clause (b) governs wills executed by a Hindu, Buddhist, Sikh or Jaina on or after first day of September 1870 outside the territories mentioned in clause (a) only if such a will relates to immoveable property situated within those territories. In other words, if a Hindu, Buddhist, Sikh or Jaina executes a will after the first day of September, 1870 at a place outside the territories mentioned in clause (a) but in respect of immoveable property situated within those territories, then such wills would be governed by clause (b). However, if a Hindu, Buddhist, Sikh or Jaina makes a will after the first day of September 1870 outside those territories in respect of properties moveable or immoveable situated outside those territories, then obviously such a will would not be governed by clause (b). Such a will, it appears, would be governed by clause (c), if it is executed on or after the first day of January 1927. This in sum and substance appears to be the scheme of section 57 of the Act and particularly clauses (a) and (b) thereof. 12] In the case of Kantabai (supra), the learned single Judge of this Court held that Section 213(1) of the Act does not apply to the Wills made by Hindus unless the same fall within section 57(a) & (b) of the Act i.e. property must fall within Ordinary Original Civil Jurisdiction of High Courts of Mumbai and Madras. In that case property being situated at Jalgaon, probate of Will under section 213 was not required. 13] In the case of Bhagwanji (supra) the suit property was situated at Pune and the Will was also executed at Pune. Therefore, the learned single Judge of this Court held that the probate was not necessary. 9 sa442-09.sxw 14] In view of the provisions of Section 57 as also clearcut pronouncement of this Court, I have no option but to set aside the impugned judgment and decree passed by the learned District Judge. 15] In the result, Appeal succeeds and the impugned judgment and decree dated 11 th August, 2009 passed by the learned District Judge-3, Karad in Regular Civil Appeal No.95 of 2003 is quashed and set aside. Regular Civil Appeal No.95 of 2003 shall stand restored to the file of the learned District Judge for disposal of the Appeal on merits in accordance with law and in the light of the observations made in the judgment. Before proceeding with the matter, the learned District Judge shall issue notices to the respondents and shall dispose of the Appeal as expeditiously as possible and, at any rate, within six months from the date of receipt of the writ of this Court. In view of the disposal of the Appeal, Civil Application No.1578 of 2009 does not survive and the same shall stand disposed of. [R.G.KETKAR, J.]