48 FAO N0185 of 1990 4 INTHE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Rk4r4 FAO Nol85 of 1990 DATE OF DECISION 0012011 kk Pritam Singhand others Appellants j Vs General Public and others 0 0 I t5 ol 511 1 CORAM HONBLE MRJUSTICE RAKESH KUMAR JAIN Z kkRk Present MrHarnek SinghAdvocate for Q MGurnam SinghAdvocate for the appellants None for the respondents 0 tkRR 7 r 1 RAKESH KUMAR JAIN J The questionof Iaw involved in this appealis as to whether it is necessary for a person claimingsuccession under the Will either as an executor or a Iegatee to obtain probateor Iettersof administration before a succession cenificate is granted if the executant of the Will is a Hindu Buddhist Sikh or Jaina has not made it within the territon mentioned under Section 571 of the India Succession Act 192for short the Act7 and if the personfollowing any of the aforesaid religionhas made the Will outside the territories mentioned under Section 5al of the Act anci the propertybequeathedby way of Will is also not within the territoriesmentioned under Section 571 of the Act2 In order to unfold the controversyfew facts are requiredto be noticed One LaI Singhhad five sons and three daughtersHe had 227651 paise Iyingdepositedin the Punjaband Sind Bank . uma 2012.09.05 16: 07 Scanned True Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 15:57 I attest to the accuracy and integrity of this document 49 AO Nol85 of 1990 2 1 Naushera MajjaSinghin savingaccount N02916 He purponedto have executed a Will dated 161 11975 in favour of his sons namely Sewa Singhand AjitSinghand had died on 191986 Afterthe death of Lal SinghSewa Singhand AjitSinghfiled a petitionunder Section 372 of the Act by generalpubiicand their brothers and sisters for the grantof succession certificate Initially were proceededagainstex partebut on an application moved on behalf of respondentsNo2 to 4 8 5 the ex parteproceedings were set aside In their reply respondentshad chaliengedthe validityof the WiII 0 0 issues were framedon 151 988 to the following eHectl 1 Whether Lal Singlleceasedexecuted 0 a valid Will dated 261 1 1975 in favour I ofthe OPA Z 2 Whether the Civil Court has no to ttythis OPP 3 Whether the presentapplication is not I maintainable2OPR 4 Relief Z Both the partiesIedtheir respective evidence While dealing m with issue Nol Iearned Court below upheldthe Will ExllAl on the 7 basis of the statement of the scribe Sardari Lal 64W21and attesting Z witness Parduman Singh 4W31While dealingwith issue No2 it was r held that in order to obtain succession certificate probateunder Section 2130f the Act is not requirecl Issue No was decided againstthe as it was not pressed While decidingissue No successloll certificatewas grantedin respectof the amount deposited Ill the Bank along with interest on furnishing of indemnitybonds of 300001 Aggrievedagainstthe order of the Iearned Court below had preferred the presentappealalongwith an for stayin which the following order was passed Notice Notice regarding CV1 for 151990 . uma 2012.09.05 16: 07 Scanned True Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 15:57 I attest to the accuracy and integrity of this document SO AO N0185 of 1990 n3e e Respondent Nos and 3 are allowed to withdraw the amount in questionon their fumishing adequatesecurityto the satisfaction of the Sub Judge First Class Gurdaspur The securitybe accepted after notice to the appellants 11 1 On 121991 while dealingwith the for stay namelyCM No916eCIIe1 990 followingorder was passedby this 0 Courtl 0 Counsel for the I 0 states that No2 and 3 I have sincelNithdrawnthe amount l This being the position Civil Z Miscellaneous N691 6Cllm1990 has become infructuous The same is dimissed as having become I infructuous Il Z Mr4arnek SinghIearned counsei appearingon behalf of CO the appellants has raised the onlyargumentthat Iearned Coun below has committed an error of Iaw in the petitionfor grantof 7 Z succession ceitificate on the basis of Wili which was not probated and 0 has thus committeda violationof Section 2131 1of the Act1 support of his argumenthe has referredto Section 21 l I of the Act and has 1 relied upon a decision of this Court in the case of Kesar SinghSant Singhandothers Vs Smt TejKaurAlR 1961Punjab509 No one has putin appearance on behalf of the respondents 5 despiteservice have heard Iearnedcounsel for the appellants and perused the record with his assistance Lal Singhwho had made the Will Ex1IAI 9 is a resident of Gurdaspur and the propertyregardingwhich grantof 4 succession certificateis prayedfor bythe iegateeis also situated within the Districtof Gurdaspur . uma 2012.09.05 16: 07 Scanned True Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 15:57 I attest to the accuracy and integrity of this document 51 AO No85 of 1990 e4 J In order to appreciatethe argumentsraised by Iearned counsel for the appeliants that the succession certificate cannot be grantedunless the Will is probatedit would be relevant to refer to Sections 213 and 57 ofthe Act which reads tht 213 Right as executor or Iegatee when established 11 No rightas executor or Iegateecan be established m in anyCourt ofjusticeunless a Court of competent in India has 0 0 grantedprobateof the Will under which I the rightIS claimed or has granted 0 Iettersof administrationwith the Will or I with a copy of an authenticatedcopy of Z the Will annexed 21 This section shall not applyin the case of Wiils made by Muhammadans I Ior Indian Christiansland shall only apply Z i in the case of Wills made by any 00 Hindu Buddhist Sikh or Jaina where such Wills are of the 7 Z classes specNiedIn clauses al and bl of Section 577d iil In the case of Wills made by any Parsi dymg after the commencement of the Indian Succession 4mendmenoAct 4 1962 where such Wills are made within the Iocal Iimits of the ordinatyotiginalcivil jutisdictionl of the High Coutts at CaIcutta Madras and Bombay and where C 1 such Wills are made outside those Iimits in so far as they . uma 2012.09.05 16: 07 Scanned True Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 15:57 I attest to the accuracy and integrity of this document 52 AO Nol85 of 1990 e5m relate to immoveable property situatedwithinthoseIimits 2J 57 Appiicationof cettain provisions of Part to a class of Wills made by Hindus etc The provisionsof this part which are set out in Schedule Ill shall subjectto the restrictions and 1 rnodificationsspecifiedtherein apply al to all Wills and codicils made by 0 0 any Hindu Buddhist Sikh or I Jaina on or after the first dayof C5 September1870 within the I territorieswhich at the said date Z were subjectto the Lieutenant Governor of Bengalor within the Iocal Iimits of the ordinary I originalcivil jurisdictionof the t High Courts of Judicature at Z Madras and Bombay7d m 101 to all such Wills and codicils made outside those territories Z and 117nits so far as relates to Om immovable propetty situate within those territoIies or li7nits 1 and cl toaIIWillsandcodicilsmadeby 1 any Hindu Buddhist Sikh or C Jaina on or after the first dayof January 1927 to which those provisionsare not applied by clauses al and Provided that marriage shall not revoke anysuch Will or codicil . uma 2012.09.05 16: 07 Scanned True Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 15:57 I attest to the accuracy and integrity of this document 53 FAO No85 of 1990 e6e No doubt that Section 213 l I of the Act providesthat an executor or the Iegatee of the Will cannot claim a rightunless a Court of in India has grantedprobateof the said Will or has grantedIettersof administrationbecause an provided under Section21321of the Act says that Section 2131 1 would not applyin the case where the Will is made by Muhammadans or indian Christians but would applyin the case of a Will made by a Hindu 1l Buddhist Sikh or Jaina if such Wills are of the clauses specifiedin clauses al and ol of Section 57 of the Act Whereas the provisions of 0 0 Section 57al 8 bl are applicable to all Wills and codicils made by Hindu Buddhist Sikh or Jaina on or after the first day of September C5 1870 within the territorieswhich at the said date were subjectto the I Lieutenant Governor of Bengalor withinthe Iocal Iimitsof the ordinary Z originalcivil of the HighCourts of Judicature at Madras and Bombayand Section 5701of the Act appliesto ail such Wills and 2 codicils made outside those territoriesand Iimitsbut to the propenies situatedwithinthose territoriesor Iimits mentioned under Section 57 L2 of the Act Z However in the presentcase the Will was admittedly CO made at Gurdaspurby Lal Singhwith respectto the propenysituated vvithinthe territories of the State of Punjab In view thereof neither 7 Z Section 57a1of the Act nor Section 5701of the Act are applicableand Slnce both provisionsof Section 57al 8 5701 of the Act are not applicablethe provisions of Section 21321l of the Act is also not applicableIn this regardreliance could be placedupon the decision 1 rendered in the case of Sohan Singhand Ors I BhagSinghand Ors AlR 1934 Lahore 599 Ram Chand Ganesh Dass Vs Sardara 6 Singhand another AlR 1962Punjab382 Dr MrJoginder Kaur C Malik and another Vs Malik Anup Singh AlR 1966Punjab385 and 4 W a Division Bench of this Court in the case of 9Ws Behari Lal Ram Charan Vs Karam Chand Sahni and others AlR 1968 Punjaband 9 Haryana 108 It would also be pertinent to mention here that judgment 4 reliedupon by Iearned counsel for the appellantsin the case of Kesar SinghSant Singhand others pral has been specifically overruled . uma 2012.09.05 16: 07 Scanned True Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 15:57 I attest to the accuracy and integrity of this document 54 FAO No85 of 1990 a bythe Division Bench of this Couit in the case of Mls Behari Lal Ram Charan Supraland in a similar case to Gurdaspurthe judgmentrendered in the case of Sohan Singhand OrsSupral IS fullyapplicable as it also pertains to a case where the Wili was made by a person from Gurdaspur in respectof the propertywhich was situated withinthe territoriesof Gurdaspurin the State of Punjab In view of the above discussion the questionposedin the 1 0 beginning of the judgment is answered in favour of the and againstthe appellants and it is held that in case of grantof succession 0 C3 ceitificate the Wiil is not requiredto be probatedif the person who had made the Will is not covered by Section 57al of the Act and the C5 propertyin questionis also not covered by Section 5701 of the Act I because Section 213210lof the Act shall not applyto such typeof Z cases the presentappealis found to be without any meritas no questionof Iaw is found to be involvedand hence the same 2 1 IS herebydismissecl No costs I C Z 0401011 JUDGE Vive CO 7 Z Om ee7 1r 11 71 Il 1 Il 5 . uma 2012.09.05 16: 07 Scanned True Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 15:57 I attest to the accuracy and integrity of this document