Mittal Portfolio Private Limited vs Camac Commercial Company Limited And Ors

Abni Ranjan Kumar Sinha, J

The applicant filed an application praying therein to direct the Respondent's Company to issue a share certificate.

We have heard the Learned Counsel appearing for the applicant and in course of his hearing, a preliminary question was framed.

Since the Petitioner's claim is based on the purchase made by the legal heir of the deceased in whose favour the Will was executed by the deceased, therefore, before considering the main issue, we would like to decide first, "Whether a person can transfer any interest on the basis of Will or not ?

Learned Counsel appearing for the applicant in course of his argument submitted that the Will was executed at the residence of the executor at 81 v.s. Mudali street, Saidapet, Madras, which is not within the territorial original jurisdiction of the Madras High Court.

He further submitted that Section 213 of the Indian Succession Act says 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 but this rule is subject to exception given in sub-section 2 of Section 213. This rule is not applicable in the case of will executed by the Mohammadans or Indian Christian or if the property is outside the jurisdiction of Kolkata, Madras and Mumbai High Court where such wills are made outside those limits.

He further submitted that the Hon'ble Madras High Court in a case of P. Ranganathan and Others Vs. Sai Jagannathan and Others reported in (1995) 2 CTC 181 held that "the property situated at Saidapet is outside the original territorial jurisdiction of the Madras High Court". He further submitted that the Hon'ble Supreme Court in the case of Clarence Pais Vs. Union of India reported in (2001) 1 Supreme 127 held that "if the property is situated outside the territorial jurisdiction of the court referred in Section 213 then Section 213(1) is not applicable, rather Section 213(2) of the Indian Succession Act is applicable."

He further submitted here in this case, the executor executed the will at Saidapet, therefore, it is not necessary to grant probate of the will.

Now, in the light of submissions raised on behalf of the Petitioner, we have gone through the decision referred by the Petitioner as well as the provisions under the Indian Succession Act.

Before considering the submissions made on behalf of the Petitioner, we would like to refer the Section 57 and Section 213 of the Indian Succession Act and same are quoted below: -

"Section 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 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; and

(b) to all such wills and codicils made outside those territories and limits so far as relates to immoveable property situate within those territories or limits;

(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

Provided that marriage shall not revoke any such will or codicil."

"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 3*[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 Jaina where such 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 Indian Succession (Amendment) Act, 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 situate within those limits."

Mere plain reading of the aforesaid provisions shows that Section 213(1) of Indian Succession Act says 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, but sub-section 2 of the Section 213 says that this section is not applicable in case of a Will made by the Mohammadans and shall applicable only in the case of Will made by Hindu, Buddhist, Sikh or Jain, where such Wills are of the class specified in Clause (a) and (b) or Section 57 of Indian Succession Act.

At this juncture, we have gone through the Section 57(a) and (b) of the Indian Succession Act, which we have referred in the aforementioned para and We find that Section 57 gives some restrictions and modifications. Section 57(a) says that it apply to all Wills and codicils made by 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.

At this juncture, we would also like to refer the decision upon which the Petitioner place reliance that is, in the case of Clarence Pais Vs. Union of India reported in (2001) 1 Supreme 127 in which the Hon'ble Supreme Court held that "a combined reading of Sections 213 and 57 of the Act would show that where the parties to the Will are Hindus or the properties in dispute are not in territories falling u/s 57(a) and (b), Sub-section (2) of Section 213 of the Act applies and Sub-section (1) Section 213 of Indian Succession Act has no application. As a consequence, a Probate will not be required to be obtained by a Hindu in respect of a Will made outside those territories or regarding the immovable properties situate outside those territories."

In the light of that decision and provisions, which we have referred in the aforementioned para, when we shall consider the case in hand then we find that the Will, which the Petitioner has enclosed at page 57 to 59 of the paper book was executed at 81 V.S. Mudali Street, Saidapet, Madras.

At this juncture, we would also like to refer the decision of the Hon'ble Madras High Court upon which the Learned Counsel appearing for the Petitioner placed reliance and we find that Hon'ble Madras High Court in a case P. Ranganathan and Others Vs. Sai Jagannathan and Others reported in (1995) 2 CTC 181 considered the territorial jurisdiction of Saidapet and held that the property situated in Saidapet is outside the original territorial jurisdiction of the Madras High Court.

Now in the light of that decision when we shall consider the case in hand then we find that here in the case in hand also the property is situated in Saidapet, which according to the decision of the Hon'ble Madras High Court is outside the original territorial jurisdiction of the Madras High Court.

Therefore, a combined reading of Sections 213 and 57 of the Act would show that where the parties to the Will are Hindus or the properties in dispute are not in territories falling u/s 57(a) and (b), Sub-section (2) of Section 213 of the Act applies and Sub-section (1) Section 213 of Indian Succession Act has no application. As a consequence, a Probate will not be required to be obtained in respect of a Will made outside those territories.

Hence, we are of the considered view that Section 213(1) of the Indian Succession Act is not applicable, it is not necessary to grant a probate of the Will.

Hence, we agree with the contention raised on behalf of the Learned Counsel appearing for Petitioner that since the will is executed outside the original territorial jurisdiction of the Madras High Court, therefore, in view of Section 57(a) of the Indian Succession Act read with Section 213(2) of the Indian Succession Act, it is not required to grant a probate, hence we find and hold that even if the Probate is not granted, a person can transfer any interest on the basis of Will. Hence, the question is decided in affirmative.

The main case is listed for final hearing on 03.07.2020.