Andhra HC (Pre-Telangana)
Masimukkula Narayana And Others vs Masimukkula Suryakantham on 22 August, 1997
Equivalent citations: 1999(2)ALD132, 1997(5)ALT459
ORDER
1. The defendants in OS No.550 of 1992 on the file of the 11 Additional District Munsif at Kakinada are the petitioners herein. They have preferred this revision petition against the order refusing to receive and mark in evidence a Will dated 13-2-1992 on their behalf. The suit filed by the respondent is one for bare injunction against the petitioners in respect of plaint schedule properties. The main defence of the petitioners is that they are the absolute owners of the suit properties by virtue of the Will dated 13-2-1992 said to have been executed by one Veerraju, the husband of the respondent, bequeathing the suit properties in their favour and no injunction can be granted against true owners. When the petitioners sought to mark the said Will during the course of trial the respondent objected to the same on the ground that the Will has to be proved only by way of Probate and a suit for injunction cannot be converted into one for probate. The learned District Munsif, having upheld the respondent's objection, refused to receive and mark the will dated 13-2-1992. Hence, this revision petition.
2. It is apparent from the impugned order that the learned District Munsif rested her decision solely on the basis of the following observations made by the Supreme Court in T. Venkala Narayana v. Smt. Venkatii Subbamma, .
"The mere suit for injunction cannot be converted into a suit for probation of a Will whereat the Will is to be proved. If the Will is to be proved according to law, it has to be by way of probate in the Court having competency and jurisdiction according to the procedure provided under the Succession Act. That procedure cannot be converted in a suit for mere injunction as a probate suit and direct the parties to adduce evidence, be it primary or secondary evidence as the circumstances may warrant".
3. Execution of Wills, grant of probate therefor, legal obligation of the legatee to obtain probate and the Court competent to grant probate etc., are governed by the provisions of the Indian Succession Act, 1925 (for short 'the Act'). Section 2(h) of the Act defines 'Will' as "the legal declaration of the intention of the testator with respect to bis property which lie desires to be carried into effect after bis death." Section 59 provides that "every person of sound mind not being a minor may dispose of his property by Will". Section 213, which prescribes procedure for establishment of right as executor or legatee under a will, reads as:
"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 and, shall only apply-
(i) in the case of Wills made by any Hindu, Buddhist, Sikh or Jain where such Wills are of 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, where such Wills are made within the local limits of the ordinary civil jurisdiction of the High Courts at Calcutta, Madras and Bombay, and where such Wills are made outside those limits, insofar as they relate to immovable property situate within those limits."
4. A plain reading of sub-section (1) of Section 213 would definitely indicate that it prohibits any executor or legatee under a Will from establishing his or her right under the Will in any Court of justice without obtaining a probate of the Wilt or letters of administration. But, it is clear from sub-section (2) of Section 213 that Section 213 shall not at all apply to the Wills made by Muhammadans and shall apply only to the wills made by any Hindu, Buddhist, Sikh or Jain w:here such Wills are of the classes specified in clauses (a) and (b) of 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-
(a) to all Wills and codicils made by any Hindu, Buddhist, Sikh or Jain, 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; 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) ..."
It is abundantly clear therefrom that the prohibition contained in sub-section (I) of Section 213 applies to Wills by Hindus on or after 1 st day of September, 1870 within the territories which at the said date were subject to the jurisdiction of 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.
5. It is unfortunate that none of the above statutory provisions which are of utmost relevance have been brought to the notice of the Supreme Court in T. Venkata Narayana 's case (supra). Moreover, in that case there was no occasion for the Supreme Court to consider, directly or indirectly, the question whether the prohibition contained in sub-section (1) of Section 213 of the Act would apply to the Wills executed by Hindus residing in the State of Andhra Pradesh in respect of properties situate in Andhra Pradesh. Viewed in this perspective, in my humble opinion, the above referred observations of the Supreme Court have no application to the facts of the present case.
6. An identical question arose for consideration before a Division Bench of this Court in A.S. Murthy v. D.V.S. Murthy, 1979 (2) ALT 347. Therein, Madhava Reddy, J, as he then was, on an exhaustive survey of law on the subject held:
"...As discussed above, Section 213(2) excludes Wills executed by persons residing in the State of Andhra Pradesh in respect of properties situate in Andhra Pradesh from the prohibition contained in Section 213(1) of the Act. Hence even without obtaining probate or letters of administration the legatees are entitled to establish their right to the properties...." (para 11)
7. It is well settled that even in a suit for mere injunction the question of title may have to be incidentally gone into. In A.L. V.R.Ct. Veerappa Chettiar v. Arunachalam Chelti and others, AIR 1936 Mad. 200, it was held that:
"The fact that the question of title also may have to be incidentally gone into in deciding whether an injunction can be given or not is not any justification for holding that the suit is for a declaration of title and for injunction."
In Nagar Palika, Jind v. Jagat Singh, , it has been held by the Supreme Court that even in a suit for injunction based on title, it is incumbent on the part of the Court to record a finding on the claim of title to the suit land. Learned Counsel for the respondent/plaintiff is fair enough to state that there is catena of decisions supporting this proposition of law.
8. For the aforesaid reasons, I find it difficult to sustain the impugned order. It is, accordingly, set aside and the learned District Munsif is directed to receive the Will dated 13-9-1992 sought to be adduced in evidence by the petitioners/defendants and give them an opportunity to prove the same in accordance with law.
9. In the result, the revision petition is allowed. No costs.