Andhra HC (Pre-Telangana)
Inkollu Sasikala @ Shayamala And Anr. vs Inkollu Venkata Ratnamma And Ors. on 3 August, 2004
Equivalent citations: 2004(6)ALT18
Author: L. Narasimha Reddy
Bench: L. Narasimha Reddy
JUDGMENT L. Narasimha Reddy, J.
1. This civil miscellaneous appeal is filed under Section 384 of the Indian Succession Act, 1925 ('the Act' for brevity) against the Judgment and decree dated 06.03.2003 passed by the learned I Additional District Judge, Ongole in O.P. No. 134 of 1996.
2. Respondents 2 and 3 in the O.P. are the appellants. For the sake of convenience, the parties are referred to as they are arrayed in the O.P.
3. Petitioner is the wife of the first respondent. The second respondent is said to be the divorced wife of late Umamaheswara Rao, who is the son of the petitioner and first respondent. The third respondent is the minor daughter of late Umamaheswara Rao. The deceased was in Government service. The fourth respondent is the appointing authority and the fifth respondent is the sub-post Master, Singarayakonda, where certain deposits are said to have been made by late Umamaheswara Rao.
4. The petitioner pleaded that her eldest son Umamaheswara Rao was married to the second respondent. According to her, the deceased filed O.P. No. 43 of 1989 in the Court of Principal Subordinate Judge, Ongole for dissolution of his marriage with the second respondent and that the same was granted on 18.10.1989. The legal custody of the third respondent was said to have been granted to the deceased. She stated that thereafter her son married one Nagavardhini on 01.08.1990 and they too were not able to live together. This marriage also was said to have been dissolved through the order dated 06.09.1991 in O.P. No. 66 of 1991 on the file of the Subordinate Judge, Ongole. It was her case that her son executed a Will dated 05.01.1992 bequeathing his properties in favour of his daughter, the third respondent, his parents, the petitioner and the first respondent and his brothers and sisters. Umamaheswara Rao is said to have died on 29.01.1992. With these and other allegations, she filed O.P. No. 134 of 1996 for grant of probate.
5. The O.P. was mainly contested by the third respondent on behalf of herself and the second respondent also. They disputed the execution of the Will. It was alleged that the Will was brought into existence with a view to deny the succession to properties left by late Umamaheswara Rao.
6. In support of her claim, the petitioner examined P.Ws. 1 to 4 and filed documents Exs. A1 to A13. The second respondent was examined as R.W.1. The trial Court framed only one point namely, whether the Will dated 05.01.1992 executed by late Inkollu Umamaheswara Rao is genuine one and whether the petitioner in the O.P. is entitled for grant of probate in accordance with the Will. Through the Judgment under appeal, the trial Court decreed the O.P.
7. Learned counsel for the appellants, Sri Satyanarayana Nimmagadda, submits that the O.P. filed for grant of probate was not maintainable at all in view of clear prohibition contained under sub-section (2) of Section 264 of the Act. He contends that despite the clear prohibition, the trial Court entertained the O.P. and proceeded to grant probate. Learned counsel submits that the trial Court did not have jurisdiction to deal with the immovable properties covered by a Will, in an application filed under the provisions of the Act. He also made several submissions touching the merits of the matter.
8. Sri Srinivas, learned counsel for the respondents, on the other hand, submits that the O.P. for grant of probate is certainly maintainable under Section 270 of the Act, particularly having regard to the purport of Sections 57 and 257 of the Act. He contends that even otherwise the O.P. can be treated as the one under Section 370 of the Act, and that there is nothing in law which prohibits the declaration of rights under a Will in an application filed under Section 270 of the Act.
9. The relationship of the parties and the facts referred to above are not in dispute. The O.P. was filed under Section 270 of the Act for grant of probate in respect of the Will, which is marked as Ex. A1. The first and foremost question that needs to be considered in this appeal is, as to whether it was competent for the trial Court to entertain an application under Section 270 of the Act for grant of probate. In this connection, it needs to be seen that Section 270 of the Act empowers the District Judge, under seal of his Court, to grant probate of a Will or letters of administration in favour of a person, on being satisfied that the testator had a fixed place of abode, or any properties covered by the Will are situated within the territorial jurisdiction of that Court. If this is the only provision conferring the powers on the Court to grant probate or letters of administration, no exception can be taken to the application filed by the petitioner for grant of relief by the trial Court. However, under the scheme of Chapter IV of the Act, Section 270 figures at a subsequent stage. The chapter begins with Section 264, which reads as under:
"Jurisdiction of District Judge in granting and revoking probates, etc.:
(1) The District Judge shall have jurisdiction in granting and revoking probates and letters of administration in all cases within his district.
(2) Except in cases to which Section 57 applies, no Court in any local area beyond the limits of the towns of Calcutta, Madras and Bombay, shall, where the deceased is a Hindu, Muhammadan, Buddhist, Sikh or Jaina or an exempted person, receive applications for probate or letters of administration until the State Government has, by a notification in the Official Gazette, authorized it so to do."
10. A reading of sub-section (2) clearly discloses that Courts, outside the limits of the towns of Calcutta, Madras and Bombay, do not have the power to receive application for grant of probate or letters of administration unless the State Government confers such power by a notification published in the official Gazette. It is not in dispute that such a notification has not been issued by the Government of Andhra Pradesh. This question was specifically dealt with by a Division Bench of this Court in A.S. Murthy v. D.V.S.S. Murthy, 1979(2) ALT 347 and it was held that the Courts in the State of Andhra Pradesh do not have the power to grant probate. It is also beneficial to refer to the Judgment of this Court in Gangavath Lalu v. Gangavathi Tulsi, in this regard, wherein, it was summed up as under.
"A plain reading of Sections 213(2) and 57 of the Act would make it clear that whatever prohibition contained in sub-section (1) of Section 213 has no application in respect of Wills executed by Hindus within the State of Andhra Pradesh in respect of immovable properties situated within the territorial limits of the State of Andhra Pradesh. It is not necessary to obtain probate of a Will or letters of administration. The Wills upon which reliance is sought to be placed can always be permitted to be proved in any civil proceeding."
11. Learned counsel for the respondents attempted to persuade this Court to sustain the jurisdiction of the trial Court in receiving the application by making reference to sections 57 and 214 of the Act. Section 57 of the Act is a general provision dealing with testamentary succession. It mainly deals with the applicability of the provisions set out in Schedule III of the Act, to a Will or codicil that may be made by any Hindu, Buddhist, Sikh or Jain. It is in the form of extension of the concept of testamentary successions to the persons belonging to communities referred to above. To appreciate the real purport of Section 214, it is necessary to refer to Section 213. The former deals with the Wills in general, and the latter, with the succession to debts and securities. Section 213 of the Act prescribes the procedure for establishing the rights arising out of a Will in respect of the immovable properties (see K. Laxminarayan v. V. Gopala Swami . Section 214 of the Act deals with the rights in respect of the debts relatable to such disposition. Section 213 clearly bars recognition of the rights in respect of the immovable properties under a Will except on the strength of a probate. It is not as if the persons residing outside the limits of the cities of Calcutta, Madras and Bombay are without any relief since the Courts in most of the other places are not conferred with the jurisdiction to receive applications for grant of probate. The validity of a Will or the rights flowing out of it can certainly constitute the subject matter of a suit and other related proceedings. The section does not preclude the parties to reap the benefits under a Will through other remedies (see Clarence Pais v. Union of India and Arjun Prasad v. Biteshwar Singh .
12. So far as Section 214 of the Act is concerned, the grant of probate is enlisted as one of the methods to recognize the title over a debt referred in a Will. The section itself provides for recognition of such right on the basis of certificate granted under Sections 31 and 32 of the Administrator General's Act, 1913 or a succession certificate granted under part X of the Act. Several other methods are also enlisted. This provision in fact supports the contention of the learned counsel for the appellants. Section 370 of the Act prescribes the procedure for grant of succession certificates in respect of any debt or security. A succession certificate, by its very nature, does not take in its fold the right to succession in relation to any immovable property. The Act does not insist that adjudication of claims arising under a Will in relation to immovable properties shall be only through grant of probate. The parties claiming succession to debts or securities under a Will can have recourse to Section 370 of the Act. This is provided under Section 214(1)(a)(iii)..
13. From the forgoing discussion, it is evident that O.P. filed by the petitioner for grant of probate was not maintainable and the decree granted by the trial Court to that extent is without jurisdiction. As for the adjudication of rights in relation to securities and debts, under a Will, the trial Court is specifically conferred with the power. While adjudicating the claims, in an application filed under Section 370 of the Act for grant of succession certificate, the trial Court can certainly take into account the contents of a Will, if it is otherwise proved. However, any finding recorded in relation to the Will in an O.P. filed under Section 370 of the Act cannot hold good insofar as it relates to immovable properties. Though the O.P. filed by the petitioner was not maintainable in law, the adjudication undertaken by the trial Court, with the participation of the parties, cannot be permitted to go waste. Further, respondents 2 and 3, the appellants herein, did not raise any objection as to the maintainability of the O.P. before the trial Court. This Court is of the view that the adjudication undertaken by the trial Court can be restricted to the one for grant of succession certificate, duly protecting the rights of the parties in relation to the other properties.
14. The trial Court has undertaken extensive discussion in relation to the validity of the Will and the entitlement of the various persons to receive the benefits under it. The Will was held to have been proved. The findings can be restricted to the limited purpose of granting succession certificate. Learned counsel for the appellants is not able to persuade this Court to set aside the findings recorded by the trial Court, if restricted to the securities and debts referred to in the Will.
15. For the foregoing reasons, the Judgment under appeal is modified and the civil miscellaneous appeal is partly allowed to the following effect.
a) The O.P. shall be treated as the one filed under Section 370 of the Indian Succession Act, 1925 and the same shall stand ordered only in relation to the service benefits and other securities and debts referred to in the will;
b) The findings recorded by the trial Court as to the genuinty and validity of the Will shall not apply in relation to the immovable properties covered by the Will, Ex. A1;
c) It shall be open to the parties to work out their remedies in relation to such properties in accordance with law.
d) There shall be no order as to costs.