Smt. Roopa Bai and Others vs Hukum Singh

Guman Mal Lodha, J.—This revision petition has raised new dimension and controversy about the constitutional validity of Section 213 Sub-clause (2) and Section 57(a) and (b) of the Hindu Succession Act.

So far as the present case is concerned, this revision petition is directed against the order deciding the issue regarding requirement of obtaining of probate or a Will against the plaintiff. The lower court observed that unless a probate is obtained the suit cannot proceed on the basis of the Will.

The petitioners counsel submits that this is directly against series of judgments of this court. The last one is Mst. Jadev v. Ram Swarup RLW 1960 SC 685 and the earliest being Bal Kishan v. Prabha RLW 1950 SC 258. The earlier decision of Bal Kishan v. Prabha (supra) was based on the Marwar Succession Act which stood repealed after formation of Rajasthan, Para 5 of Mst. Jadev v. Ram Swaroop (supra) judgment reads as under:

A perusal of els. (a) & (b) of the said section will show that Clause (a) relates to these Wills and codicils which are made by any Hindu, Budhist, Sikh or Jain on or after the first day of September, 1870 with in the territories which at the said date were subject to Lieutenant-Governor of Bengal or within the local limits of the ordinary civil jurisdiction of the High Court of Judicature at Madras and Bombay. Clause (b) refers to these Wills and codicils relate to immovable property situated within the territories or limits mentioned in Clause (a), but which are executed beyond the limits of those territories. In the present case, it is not alleged by the respondent that the Will was executed within the territories mentioned in Clause (a) or that the Will relates to property situated within the territories mentioned in Clause (b). Thus, it is clear that the provisions of Sub-section (1) of Section 213 of the Indian Succession Act were not attracted. This view finds support from Sunderlal and Teeja v. Nena D.B. Civil Regular First Appeal No. 83 of 1952 decided on 16-11-1954 by a division bench of this Court. The District Judge has committed a mistake in relying upon the decision in Bal Kishan''s case (1), since that decision was given on the basis of the provisions of the Marwar Succession Act and not of the Indian Succession Act. He was obviously in error in throwing out the Will merely on the ground of its inadmissibility by applying Section 213(1) of the Indian Succession Act.

It would be seen therefore, that so far as this Single Bench is concerned there is a Division Bench judgment of Sunder Lal and Teeja v. Nena D.B. Civil Regular First Appeal No. 83 of 1952 decided on 16-11-1954 referred to in the above para 5 of the above judgment, which is binding.

However, the learned Counsel for the non-petitioner has invited my attention to the judgment of the Hon''ble Supreme Court in Mrs. Hem Nolini Judah (since deceased) and after her Legal Representative Mr. Marlean Wilkinson Vs. Isolyne Sarojbashini Bose and Others, in which Section 213 of Indian Succession Act has been interpreted and a suit without probate has been held to be not maintainable. At Page 1474 in Para 6; Clause ((sic)) of Section 213 has been discussed and it has been observed that the law is well settled that the right under the Will claimed by a party either as plaintiff or defendant, will not be entertained unless the bar u/s 213 is cleared by obtaining probate or letter of administration Reliance was placed on a Full Bench Judgment of Ghanshamdass Narayandass v. Gulabi Bai AIR 1927 Mad)

Now before this court the learned Counsel for the petitioner submits that so far as the above judgment of the Hon''ble Supreme Court is concerned, it is between Christians and not Hindus, and further this point has been clarified by the Punjab and Haryana High Court in Behari Lal Ram Charan Vs. Karam Chand Sahni and Others, wherein it has been held as under:

Succession Act (1925), Sections 213 and 57 Scope and applicability-Probate of Will, not necessary in case where both the persons and property of any Hindu, Budhist. Sikh or Jain are outside the territories specified in Section 57(a)-Suit instituted at Dehil for recovery of certain sum on the basis of unprobated Will-Suit was held to be competent in view of Section 213(1) read with Section 57(a) and (b) exempting such a case from its rigour. Kesar Singh Sant Singh and Others Vs. Smt. Tej Kaur, Overruled; Ram Chand Ganesh Dass Vs. Sardara Singh and Another, and AIR 1934 Lab. 599 and C.R. No. 340-D/24-8-1965 (Punj.), Followed.

The contention of the petitioners'' counsel is that the Hon''ble Supreme Court''s Judgment in Mrs. Hem Nolini Judah (since deceased) and after her Legal Representative Mr. Marlean Wilkinson Vs. Isolyne Sarojbashini Bose and Others, should be confined to the case of Christians only as it has not discussed the cases of Hindus where Section 57 and 57B come into picture by Clause (2) of Section 213. The learned Counsel for the non-petitioner confronted with the above submitted that firstly in Kanhialal Sarda and Another Vs. State of Orissa and Others, a Division Bench in a case of Hindu has held that in view of the Supreme Court judgment, the preemptory rule of law would apply and the executor cannot establish its right on the basis of the Will unless he obtains a probate as contemplated by Sections 211 & 213 of the Succession Act.

He further invited my attention to Section 217 of the Hindu Succession Act, which reads as under:

Save as otherwise provided by this Act or by any other law for time being in force, all grantees of probate and letters of administration with the Will annexed and the administration of the assets of the deceased in cases of intestate succession shall be made or carried out, as the case may be in accordance with the provisions of this part.

Having heard learned Counsel for the parties, I am of the opinion that unless a Division Bench Judgment of this court referred to above is said to have been declared as bad law either expressly or by implication or overruled or reversed; sitting in Single Bench, according to best known principles of precedents, I am bound by it Even otherwise I feel that Punjab view holding that the judgment of the Hon''ble Supreme Court referred to above is limited to the Christians and cannot be applied to the Hindus, in view of Sub-section (i) of Section 213 read with Section 57 clause A & B appears to lay down the correct law and the Orissa High Court has not discussed this aspect of matter at all.

It would thus be seen that there is a conflicting opinion between Punjab view and Orissa view, reading the implications of the judgment of the Hon''ble Supreme Court referred to above.

The learned Counsel for the non-petitioner has given further new dimension to the controversy, by arguing that what ever might have been the position when the Indian Succession Act was enacted or amended, as the case may be in the year 1929 or so when Section 57 clause A & B of Section 231 were introduced but after the Indian Constitution came into force the provisions as Sub-section (2) of Section 213 read with Section 57A & B are violative of Article 14 of the Constitution as whereas the Hindu living in West Bengal or Madras and Bombay is required to obtain probate before asserting his claim either as a plaintiff or defendant, to the property situated in these areas or for which a will was executed in those areas, there is no such requirement for Hindus or Jains or Sikhs who are living in other parts of the country. It has been argued that this is clear discrimination and it cannot be justified on the basis of any reasonable classification because if a person owns property in Punjab or West Bengal or Madras or he executes a Will there he would be treated differently from the other Hindus who executes Will in Haryana or Assam or Bihar or other parts of the country. More over even if they are living in those parts of the country but the property is in those areas, then also probate will be required. Prima facie the submission of the non-petitioner counsel is impressive and plausible as this Branch of law required to be examined so far as its constitutional validity is concerned after enactment of the Article 14 of Constitution.

Confronted with the above submission I am left with two options (i) to dismiss the revision petition and leave it to the non-petitioner to file a writ petition under Article 226 of the Constitution; and (2) to refer the entire case to a larger Bench which should be atleast of three Hon''ble Judges of this court as suggested by the learned Counsel for the non-petitioner.

It is one of the elementary, fundamental requirement of law that it must be certain and uncertainty should be removed as soon as possible.

Inspite of the judgment of the Punjab High Court distinguishing the Supreme Court case. Article 141 still has got its own implication and in such circumstances there is always chance that some of the courts in Rajasthan may follow the Supreme Court judgment and treat the judgment of this court referred to above as having been impliedly overruled although in my view it has not been done so far. It would therefore, be in the interest of justice to make the law certain and to provide clear guidance to all the courts including the various Single Benches deciding cases at Jaipur as well as at Jodhpur, the law is authoritatively laid down by a larger Bench of two or three judges to be constituted by the Hon''ble Chief Justice on the point, whether the judgment of this Court in Mst. Jadev v. Ramswaroop (supra) and all other judgments taking the same view including the Division Bench Judgment referred to above, still holds the field as good law for holding that there is no requirement of obtaining probate u/s 213 Indian Succession Act in Rajasthan for Hindu Jain and Sikhs, inspite of the judgment of the Hon''ble Supreme Court in Mrs. Hem Nolini Judah (since deceased) and after her Legal Representative Mr. Marlean Wilkinson Vs. Isolyne Sarojbashini Bose and Others,

It is also necessary that larger Bench of this court should decide the case after notice to the Attorney General because validity of Section 213, cl. (2) read with Section 57A & B have been challenged as being violative of Article 14 of the Constitution of India on the ground of territorial discrimination and whether these provisions of Section 213 Clause (2) and 57 A & B are violative of Article 14 of the Constitution and that it is not necessary for Hindus Jains Sikhs to obtain probate, and letters of Administration for asserting any right or claim in or under a Will.

In order to avoid delay and repetition of submissions, the entire revision is also referred to the larger Bench.

The learned Counsel for the non-petitioner during the course of arguments while pressing for reference offered that this client would maintain status quo and the injunction granted by the trial court, which has ceased to be effective on account of the impugned order, would continue to be in force till the larger Bench decides the case finally.

Consequently, I further direct that during the pendency of the litigation before the Larger Bench the injunction granted by the trial court in favour of the plaintiff and against the defendants would continue to be effective.

Let this case be put up before Hon''ble the Chief Justice for constituting a larger Bench, preferably of three Judges, under Rule 59, for an authoritative decision on all the points referred to above and farther for the decision of the entire revision petition as a whole also.

The revision is disposed off as above, so far Single Bench is concerned.