Case: RAVINDER NATH AGARWAL Vs. YOGENDER NATH AGARWAL &amp; ORS

3. One Shri Badri Nath Agarwal, who was ordinarily a resident of Village Bithoriya No.1, Tehsil Haldwani, District Nainital, Uttarakhand, died on 07.05.2011, at the ripe old age of 91 years, leaving behind him surviving, five sons and a daughter. They were (1) Major Ravinder Nath Agarwal, (2) Surender Nath, (3) Narender Nath, (4) Virender Nath Agarwal, (5) Lily Nath (daughter) and (6) Yogender Nath Agarwal. Out of these six children, Shri Narender Nath is now no more. He died on 06.09.2019 leaving behind his wife Smt. Ira Joshi and two sons by name Nikhil Nath and Aditya Nath.4. Claiming that his father Late Badri Nath executed his last Will and Testament on 06.04.2011, cancelling and revoking his previous Will dated 26.06.2005 and that under the last Will dated 06.04.2011, a vast extent of agricultural land in Village Bithoriya No.1, Tehsil Haldwani, District Nainital, was bequeathed to him, the eldest son Major Ravinder Nath Agarwal got mutation effected in his favour in the revenue records, but the same became the subject matter of a writ petition filed by Lily Nath on the file of the High Court of Uttarakhand. Apart from filing a writ petition challenging the mutation effected in favour of her eldest brother, Lily Nath also filed a civil suit in Suit No.57 of 2011 on the file of Civil Judge, Senior Division, Nainital seeking a decree of permanent injunction. As a counter blast, Major Ravinder Nath, who claims to be the legatee under the Will and who got mutation effected in his favour in respect of one property, also filed civil suit in Suit No.72 of 2011 on the file of the Civil Judge, Senior Division seeking a decree of permanent injunction.5. Thereafter the last son Shri Yogender Nath, filed a suit in C.S No.2745 of 2012 on the file of High Court of Delhi, for a partition of all the properties left behind by Shri Badri Nath. The suit was filed in September-2012. But in the year 2016, presumably after the filing of the written statements, the said suit was transferred to the file of the Additional District Judge, Saket Court, New Delhi and re- numbered as C.S No.126 of 2016.6. Immediately thereafter, Major Ravinder Nath Agarwal filed the first of these transfer petitions namely T.P (C) No. 970 of 2016, seeking the transfer of the partition suit pending on the file of the Additional District Judge, Saket, New Delhi to the Court of District Judge at Nainital, Uttarakhand. On 08.07.2016, this Court ordered notice in the transfer petition and also granted stay of further proceedings in the partition suit.7. But a few days before this Court ordered notice and granted stay, the plaintiff in the partition suit namely Sh. Yogender Nath (last son) abandoned the suit and hence the only daughter Lily Nath got herself transposed as the plaintiff, by moving an application under Order XXIII Rule 1-A. The original plaintiff Yogender Nath was transposed as defendant No.5.8. On 09.10.2018, this Court passed an order in T.P (C) No. 970 of 2016, vacating the stay of further proceedings in the partition suit earlier granted on 08.07.2016. Thereafter the eldest son Major Ravinder Nath filed a petition in Testamentary Case No.01 of 2019 on the file of the High Court of Uttarakhand at Nainital, seeking the grant of letters of administration with the Will dated 06.04.2011 annexed thereto, under Section 276 read with Sections 250 and 273(b) of the Indian Succession Act, 1925. Upon receipt of summons in the said testamentary case, the daughter Lily Nath came up with the second transfer petition namely T.P (C) No.2779 of 2019, praying for the transfer of the testamentary case from Uttarakhand High Court to the District Court, Saket, New Delhi where her partition suit is now pending, so that both could be tried together.10. Before I proceed further, it should be brought on record that the earliest of the civil suits namely C.S No.57 of 2011 filed by the daughter Lily Nath for a decree of permanent injunction, on the file of the Civil Judge, Senior Division, Nainital was dismissed for non- prosecution on 27.11.2015

Reasoning:
10. Before I proceed further, it should be brought on record that the earliest of the civil suits namely C.S No.57 of 2011 filed by the daughter Lily Nath for a decree of permanent injunction, on the file of the Civil Judge, Senior Division, Nainital was dismissed for non- prosecution on 27.11.However, the second suit in C.S No.72 of 2011 filed by Major Ravinder Nath, seeking a decree of permanent injunction is still pending on the file of the Civil Judge, Senior Division, Nainital. I am not concerned with this civil suit, as it is not the subject matter of any transfer petition.12. Before I take up for consideration, the rival contentions, three important aspects have to be borne in mind. They are:-(i) The High Court of Uttarakhand at Nainital does not have ordinary original civil jurisdiction, though it has jurisdiction to entertain a testamentary case for the grant of probate or letters of administration. Therefore, the partition suit pending in the District Court, Saket cannot be transferred to the High Court of Uttarakhand, but can be transferred only to a District Court in Nainital. The District court, Nainital will not have jurisdiction to grant probate/letters of administration in respect of a property located outside its territorial limits, if its value exceeds Rs.10,000/-. Per contra, both the High Court of Delhi as well as the District Court, Saket, have jurisdiction to entertain an application for the grant of probate/letters of administration subject to certain conditions/restrictions;(ii) The last Will and Testament dated 06.04.2011 set up by the eldest son Major Ravinder Nath, covers two properties, one of which is a MIG flat promoted by the Delhi Development Authority at Saket, New Delhi. The other property is a bhumidhari land lying in Khata No.741 measuring an extent of 6.8550 hectares in Village Bithoriya No.1, Tehsil Haldwani, District Nainital, Uttarakhand, along with a residential house, service quarters and sheds. Therefore by virtue of Section 264(1) of the Indian Succession Act, 1925, the District Judge, Saket has jurisdiction to entertain a petition for the grant letters of administration, at least in respect of the property at Delhi; and(iii) The partition suit was filed in the year 2012 on the file of the High Court of Delhi and was transferred to the District Court, Saket in the year 2016. At the time when the eldest son Major Ravinder Nath came up with T.P (C) No.970 of 2016, no proceeding for the grant of letters of administration was pending in the High Court of Uttarakhand. Actually the petitioner in T.P (C) No.970 of 2016 chose to file a testamentary case in the High Court of Uttarakhand only in January 2019, after the stay of partition suit granted in T.P (C) No.970 of 2016 was vacated on 09.10.2018. Therefore it must be remembered that the petitioner in T.P (C) No.970 of 2016 created a situation that could be taken advantage of by him.17. As can be seen from the rival contentions, most of them are on factual foundation. However, one contention advanced on behalf of the petitioner, is purely legal and deserves a deeper scrutiny.18. According to the petitioner, who is eldest of the siblings and who has set up a Will, the proceedings in a testamentary case are proceedings in rem and that, therefore, they will have primacy and that, irrespective of the fact that the testamentary proceedings were initiated much after the institution of the partition suit, the partition suit and not the testamentary case, is liable to be transferred. In support of these contentions, the learned counsel appearing for the petitioner has relied upon certain decisions. The first of these decisions is that of this Court in Ishwardeo Narain Singh (supra). This Judgment is relied upon only for the limited purpose of showing that a Court of probate is concerned only with the question whether the document put forward as the last Will and Testament was duly executed and attested in accordance with law and whether at the time of execution, the testator was in a sound and disposing state of mind. We are not concerned in this case with the question as to the nature of the proceedings for probate or letters of administration. Therefore, the said decision is of no assistance for deciding the question on hand.19. In Chiranjilal Shrilal Goenka (supra), the primary question that arose was as to whether an arbitrator appointed by this Court, by consent of parties, would have jurisdiction to deal even with the proceedings for probate. Answering the question in the negative, this Court held that the probate Court alone has been conferred with the exclusive jurisdiction to grant probate or letters of administration and that even by consent, the parties cannot confer jurisdiction upon an arbitrator to adjudicate upon the proof or validity of the Will. Obviously this decision is only on the question of jurisdiction of an arbitral tribunal relating to testamentary proceedings and not about the right of a party to seek transfer of a proceeding, from one Court to another, when both Courts are claimed to have jurisdiction.20. In T. Venkata Narayana (supra), the question before this Court was whether secondary evidence could be led, in a suit for injunction, to prove an alleged Will. This Court held that a suit for injunction cannot be converted into a suit for probation of a Will and that if the Will is to be proved according to law, it has to be by way of a probate proceeding in the Court having competency and jurisdiction according to the procedure prescribed in the Indian Succession Act. But this decision does not lay down (and could not have laid down) any proposition that all Wills executed by all classes of persons in all areas throughout the country require probate/letters of administration, as we shall see later.21. Balbir Singh Wasu (supra) is the only case where this Court was concerned with the question whether the proceedings for probate initiated later in point of time than a suit for declaration and injunction could proceed further or not. In this case, the party who had first filed a suit for declaration and injunction before the Court of a Civil Judge, sought stay of the probate proceedings initiated by the opposite party in the High Court, later in point of time, on the basis of Section 10 of the Code of Civil Procedure. The High Court rejected the prayer for stay on the ground that the pendency of the suit for declaration will not bar the High Court from entertaining probate proceedings. Without answering the question revolving around section 10, CPC directly, this Court held in Balbir Singh Wasu: (i) that a decision on the appellants civil suit would not conclude the probate proceedings; (ii) that the question whether probate should be granted or not would still be left to be determined by the High Court, though the decision of the civil Court may be relevant even in those proceedings; and (iii) that though the requirement of Section 213 of the Indian Succession Act, for an executor to obtain probate, may not apply to all the areas outside the presidency towns (or the notified areas), there is no prohibition for an executor to apply for probate as a matter of prudence or convenience, even in cases where they are not covered by Section 213.22. There are two interesting aspects to the decision in Balbir Singh (supra). They are: (i) Without deciding the question whether an application under Section 10 CPC would lie or not, this Court transferred the probate proceedings from the High Court to a District Court which was competent to entertain probate proceedings and transferred the suit for declaration also to the same Court so that both of them could be clubbed and heard together. Unfortunately, this Court omitted to take note of the fact that in cases where no probate is mandatorily required by law, the Will could be relied upon in any civil action, even without getting it probated. (ii) Balbir Singh followed another decision of this court in Nirmala Devi vs. Arun Kumar Gupta (2005) 12 SCC 505.  It was a case where probate proceedings were initiated in 1997 with respect to a Will of the year 1984. A civil suit was already pending from 1987, but this Court merely ordered the transfer of the civil suit pending on the file of the sub-Judge to the Court of the District Judge where probate proceedings were pending, so that both could be clubbed together and disposed of.23. This Court did not consider or did not have an occasion to consider in any of the above decisions, the difference between cases where a party is entitled to rely upon a Will in a judicial proceeding even without getting probate/letters of administration and cases where there is a bar for the production of a Will in a judicial proceeding without first getting probate/letters of administration. The primacy to be accorded to probate proceedings would depend upon the category to which the case belongs.28. It may be seen from Sub-section (2) of Section 264, that it imposes a bar upon the Courts in any local area beyond the limits of the towns of Calcutta, Madras and Bombay, from receiving applications for probate or letters of administration, until the State Government, by a notification in the Official Gazette, authorized them so to do, wherever the deceased is a Hindu, Muhammadan, Buddhist, Sikh or Jaina or an exempted person. But the bar under Sub-section (2) has no application to cases, to which Section 57 applies.31. The jurisdiction conferred upon the District Judge in Chapter IV of Part IX, is also exercisable by the High Court, by virtue of the concurrent jurisdiction conferred under Section 300.31. The jurisdiction conferred upon the District Judge in Chapter IV of Part IX, is also exercisable by the High Court, by virtue of the concurrent jurisdiction conferred under Section 300The bar under sub-Section (2) of Section 264 is found also in sub-Section (2) of Section 300.33. While Section 212 deals with the right to intestates property, Section 213 deals with the establishment of the right as executor or legatee under a Will. In simple terms these two Rules can be stated as follows:(i) without first obtaining letters of administration from a Court of competent jurisdiction, no right to any property of a person other than a Hindu, Muhammadan, Buddhist, Sikh, Jaina, Indian Christian or Parsi, who has died intestate, can be established in any court of justice; (ii) no right as executor or legatee under a Will (other than a Will made by a Muhammadan or Indian Christian) can be established in any Court of justice unless probate of the Will or letters of administration with the Will annexed, has been granted by a court of competent jurisdiction.34. But the second Rule stated above which is found in Section 213, is applicable only: (i) in the case of Wills made by any Hindu, Buddhist, Sikh or Jaina, if those Wills are of the 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 Amendment Act 16 of 1962, if such Wills are made within the local limits of the ordinary original civil jurisdiction of the High Courts at Calcutta, Madras and Bombay and in case such Wills have been made outside those limits, in so far as they relate to immovable property situate within those limits.35. A cumulative reading of Sections 57, 213 and 264 would show: (i) that a person claiming to be an executor or legatee under a Will cannot rely upon the Will, in any proceeding before a Court of justice, unless he has obtained probate (if an executor has been appointed) or letters of administration with the Will annexed, if such a Will has been executed by certain classes of persons; and (ii) that the jurisdiction to grant probate or letters of administration vests only in courts located within the towns of Calcutta, Madras or Bombay and the Courts in any local area notified by the State Government in the Official Gazette.36. Therefore, what follows is that: (i) unless the testator belongs to any of the classes of persons specified in the Act; and (ii) unless the Will is made or some of the properties covered by the Will are located, within the local limits of a notified area, there is no necessity for an executor or a legatee under a Will to seek probate or letters of administration. In fact, the decision in Balbir Singh Wasu (supra) did not take note of the bar under Section 264(2) when it opined in general terms in Paragraph 5 of the judgment that We do not read Section 213 as prohibiting the executor for applying for probate as a matter of prudence or convenience to the courts in other parts of the country not covered by Section 213.37. By virtue of Section 213(2)(i) read with Clauses (a) and (b) of Section 57, the mandatory requirement to seek probate or letters of administration for establishing a right as executor or legatee under a Will, is applicable only to Wills made by a Hindu, Buddhist, Sikh or Jaina within the local limits of the ordinary original civil jurisdiction of certain High Courts and to Wills made outside those territories, to the extent they cover immovable property situate within those territories. Therefore, there is no prohibition for a person whose case falls outside the purview of these provisions, from producing, relying upon and claiming a right under a Will, in any proceeding instituted by others including the other legal heirs for partition or other reliefs.38. In the case on hand, the petitioner Ravinder Nath himself proceeded (i) first to have mutation effected in the revenue records and (ii) then to file a suit in O.S.No.72 of 2011 on the file of the Civil Judge, Senior Division, Nainital, for a decree of permanent injunction, on the basis of the very same last Will and Testament dated 06.04.2011 of his father, without seeking letters of administration. He did not think that Section 213(1) was a bar for him to establish his right as a legatee under the Will, without obtaining letters of administration.39. After having done so, the petitioner in T.P (C) No.970 of 2016 chose to file Testamentary Case No.01 of 2019 after 8 years of first shooting a claim under the Will and that too after the vacation of the stay of further proceedings in the partition suit by order dated 09.10.2018. Therefore, I cannot allow the petitioner in T.P (C) No. 970 of 2016 to make this Court a fait accompli.40. The partition suit, which is pending on the file of the District Court, Saket is actually 8 years old, as it was instituted on the file of the High Court of Delhi in September, 2012 and was transferred to the District Court in 2016. The written statement in the said suit was filed by Major Ravinder Nath way back in November, 2012, when the suit was pending in the High Court of Delhi as C.S No.2745 of 2012. In Paragraph 8g of the written statement, the petitioner has pleaded the execution of the disputed Will. The true copy of the Will is stated to have been annexed as D-1/5, to the written statement. Therefore, obviously Major Ravinder Nath was convinced that there was no bar for him to establish his right as a legatee under the will, even without first obtaining letters of administration. Hence, his subsequent act of filing a testamentary case before the High Court of Uttarakhand, is nothing but a ruse to take advantage of the general proposition of law that probate proceedings are proceedings in rem and that they should have primacy. This argument is available only to a person who is disabled by virtue of Section 213(1), from relying upon a Will in any proceeding, without first obtaining probate/letters of administration. Therefore, the legal contention raised on behalf of the petitioner in T.P (C) No.970 of 2016 that the partition suit should follow the testamentary case, is liable to be rejected in the facts and circumstances of this case.41. In fact, the petitioner in T.P (C) No.970 of 2016 is not even helping himself by resorting to this. After having claimed way back in November, 2012 that there was a Will, he chose to file the testamentary proceedings only in January 2019, overlooking Article 137 of the Limitation Act, 1963 and certain decisions of this Court. I am not going into those details, as it may prejudice his case.42. Relying upon the decision of this Court in Smt. Rukmani Devi and Others vs. Narendra Lal Gupta (1985) 1 SCC 144  , it was contended by Mr. Manish Kumar, learned counsel for the petitioner, that by virtue of Proviso (b) of Section 273 of the Indian Succession Act, 1925, any letters of administration granted by the District Court, Saket cannot have effect in other States unless the value of the property affected by the grant and located beyond the limits of the State, does not exceed Rs.10,000/-.43. But this argument is one of convenience. Nothing prevented the petitioner from filing the testamentary proceedings in the High Court of Delhi by taking advantage of Proviso (a) of Section 273 and seeking the withdrawal of the suit for partition from the District Court, Saket to the High Court to be tried together.Therefore, the petitioner, taking advantage of the pendency of the partition suit from 2012 to 2016, could have filed the testamentary proceeding in the High Court of Delhi itself and relied upon Proviso (a) of section 273, instead of now relying upon Proviso (b) of Section 273.45. But in these days of virtual hearings, the location of the parties is hardly a matter of concern. In fact, an application in I.A.No.130939 of 2020 has been moved by the petitioner, seeking a direction to examine one of the attesters either through video conferencing or through court appointed commissioner, as he is 74 years of age, having a lot of medical issues and has also tested positive for COVID-19.46. The very fact that even according to the petitioner, the attester can be examined through video conference or court appointed commissioner would show that the place where the proceedings are pending, is immaterial.47. The fact that 3 out of the surviving 5 children are citizens of other countries residing out of India and that therefore they cannot have any objection to the proceedings being tried in Uttarakhand, is not acceptable. It would have been open to the petitioner to raise such a contention, had he chosen to make the first strike by filing the testamentary proceedings in 2011 or 2012. He did not do so. Therefore, even on facts, I find no ground to order the transfer of the partition suit to the District Court, Nainital and hence, T.P (C) No. 970 of 2016 is liable to be dismissed.48. In so far as the second transfer petition is concerned, the relief sought therein is to transfer the testamentary case pending in the High Court of Uttarakhand to the District Court, Saket, Delhi. Since the Will set up by the petitioner covers properties located both in Nainital and Delhi, both these courts have concurrent jurisdiction. But in view of Proviso (b) to Section 273, letters of administration granted by a District Court cannot have validity in respect of a property located outside the State, if its value exceeds Rs. 10,000/-. However, this problem can be resolved by ordering the transfer of the testamentary case to the High Court of Delhi and ordering the transfer of the partition suit from the District Court, Saket back to the High Court of Delhi.