Thressiamma and Another vs Joseph and Others

P. Shanmugam, J.—Fifth and sixth Defendants in the suit are the revision Petitioners herein. Originally the 1st Respondent herein filed a petition u/s 278 of the Indian Succession Act, to grant Letters of Administration of the Will. As the matter was contested as per Section 295 of the Act, the Original Petition was converted into a regular suit. Thereafter, a preliminary question was raised by the Petitioner contending that in the light of the amendment to Sub-section (2) to Section 213 holding that Sub-section (1) to Section 213 shall not apply to Christians, the proceeding are unnecessary and the proper course is to file a regular suit. By invoking the summary procedure, the Petitioners are deprived of their regular contest in the matter. In that context, learned Counsel for the Petitioner referred to the decision in Hajira Khatoon v. Mustafa Hussain AIR 1941 (28) Ou 474. Learned Counsel appearing on behalf of the 1st Respondent submitted that there is no bar u/s 213 of the Act to get the Will probated and in case of contest, the O.P. is converted into a regular suit and, therefore, there is no prejudice for the Petitioner.

I have heard the counsel.

There cannot be any dispute that there is no bar for a Mohammedan or Christian to get the Will probated if they choose. The bar under Sub-section (1) to Section 213 is to the effect that unless a Will is probated, no rights as an executor or legatee can be established. In other words, without probating a Will, the legatee is not entitled to claim the benefits under the Will. This restriction is now lifted to Christians. There is no need for a legatee to get the Will probated. However, this provision does not bar a legatee to get a Will probated if he desires. By reading Sub-section (2), no inference can be drawn to the effect that there is a bar for Mohammedans or Christians from getting a Will probated.

Section 295 of the Act provides that in case of contentious cases, the procedure is to make a regular suit, according to the provisions of the Code of Civil Procedure. Therefore, the stand of the learned Counsel for the Petitioners that this is a summary procedure cannot be accepted. It will be summary only if it is not a contentious suit, otherwise it will be tried as a regular suit. Therefore, the Petitioners grievance that the Respondents can walk away by probing the Will in a summary procedure, cannot be correct. The learned District Judge referred to a passage in "Law of Wills" by Mantha Ramamoorthi, IV Edition, page 773 wherein it is observed that "the court will not be justified in declining to grant a probate on the ground that it does not require probate in accordance with Section 213(2) read with Section 54(c) of the Act".

The decision cited in Hajira Khatoon''s case AIR 1941 (28) Ou 474 would not be of any help to the present case. There, the Division Bench was concerned with intricate questions of personal law involving question of title to estate. In that context, the Division Bench held that the proper course is regular suit and not application for letters of administration. In any event the Division Bench did not consider the scope of Section 213.

For all these reasons, I do not find any reason to interfere with the order. The revision is accordingly dismissed.