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REPORTABLE    

IN THE SUPREME COURT OF INDIA    

CIVIL APPELLATE JURISDICTION    

CIVIL APPEAL NO. 5823 OF 2019  (ARISING OUT OF SLP (CIVIL) NO. 19096 OF 2017)  

KANTA YADAV    

.....APPELLANT(S)  

VERSUS    

OM PRAKASH YADAV & ORS. .....RESPONDENT(S)  

J U D G M E N T    

HEMANT GUPTA, J.  

  Leave granted.  

2) Challenge in the present appeal is to an order passed by the  

Division Bench of Delhi High Court on February 13, 2017 whereby  

an intra court appeal against the order dated March 14, 2016  

passed by the learned Single Bench was accepted.  The learned  

Single Bench allowed an application under Order 7 Rule 11 of the  

Code of Civil Procedure, 1908 holding that the suit for declaration  

and permanent injunction is not maintainable in view of Section  

213 of the Indian Succession Act, 19251.      

                                                 1  for short, ‘Act’

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3) The brief facts leading to the present appeal are that one Zorawar  

Singh was owner of certain immoveable property in New Delhi.  He  

executed a Will dated June 16, 1985 and codicil dated October 21,  

1995 bequeathing a self-acquired property in favour of both the  

parties.  Zorawar Singh died on January 4, 1986.  Two suits came  

to be filed; one by the present respondents bearing CS (OS) No.  

3310 of 2012 claiming declaration and permanent injunction in  

respect of the Will and codicil executed by Zorawar Singh and also  

will dated June 18, 2009 executed by Smt. Ram Pyari, wife of  

Zorawar Singh; and the other suit filed by the present appellant  

bearing CS (OS) No. 430 of 2012 claiming natural succession.    

4) The Division Bench of the High Court held that the bar under  

Section 213 of the Act is not applicable and, therefore, set aside  

the order of rejection of plaint and directed that both the suits be  

clubbed and common evidence be led together.    

5) The short question to be examined is whether it is necessary to  

seek probate or letter of administration in respect of a Will in  

terms of Section 213 of the Act in the National Capital Region of  

Delhi.  

6) It is undisputed that the present National Capital Region Delhi was  

part of erstwhile State of Punjab prior to November 1, 1966.  The  

argument raised by the respondents is that Section 57 of the Act is  

applicable where the properties and parties are situated in the

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territories of Bengal, Madras or Bombay, therefore, it is not  

necessary to seek probate or letter of administration in respect of  

properties or the persons when they are not located in the States  

of Bengal, Madras or Bombay.  To examine the said question,  

certain statutory provisions are relevant to quote hereunder:  

“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 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 (16 of 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 situated within those limits.]  

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

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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; and   

(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 are not  

applied by clauses (a) and (b):  

Provided that marriage shall not revoke any such Will or  

codicil.”  

7) The said provisions have been examined and come up for  

consideration time and again before the Punjab and Haryana High  

Court and Delhi High Court.  In Ram Chand v. Sardara Singh &  

Ors.2, the Punjab High Court held as under:  

“4.  …The clear effect of these provisions appears to  

be that the provisions of section 213(1) requiring  

probate do not apply to wills made outside Bengal and  

the local original jurisdictional limits of the High Courts  

at Madras and Bombay except where such wills relate to  

immovable property situated within those territories.  

5.  There remains to be considered the decision of  

Shamsher Bahadur, J., in the case mentioned above,  

which is apparently based on the decision of a Full Bench  

in Ganshamdoss Narayandoss v. Gulab Bi Bai, [ I.L.R. 50  

Mad. 927.] . I find, however, on perusing this judgment  

that what has been held is that a defendant resisting a  

claim made by the plaintiff as heir-at-law cannot rely in  

defence on a will executed in his favour at Madras in  

respect of property situate in Madras, when the will is  

not probated and no letters of administration with the  

will annexed have been granted. This is clearly in  

accordance with the provisions of sections 213 and 57(a)  

of the Act, and the only point on which the matter was  

referred to the Full Bench was whether a will could be  

set up in defence in a suit without probate.  

                                                 2  AIR 1962 P&H 382

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6.  As I have said the clear reading of the  

provisions of the Act leave no doubt whatever that no  

probate is necessary in order to set up a claim regarding  

property either movable or immovable on the basis of a  

will executed in the Punjab and not relating to property  

situated in the territories mentioned in section 57(a). I  

accordingly accept the revision petition and set aside the  

order of the lower Court requiring the petitioner to obtain  

probate. The matter may now be disposed of by the  

lower Court, where the parties have been directed to  

appear on the 4th of December, 1961. The parties will  

bear their own costs in this Court.”  

8) The said view was affirmed by the Division Bench of Punjab and  

Haryana High Court in M/s. Behari Lal Ram Charan v. Karam  

Chand Sahni & Ors.3:  

“3.  From a bare perusal of these two sections it is  

apparent that the objection of defendant No. 1 on the  

preliminary issue raised by him in the trial Court was  

without any substance. Clause (a) of section 57 read  

with sub-section (2) of section 213, it would appear,  

applies to those cases where the property and parties  

are situate in the territories of Bengal, Madras and  

Bombay, while clause (b) applies to those cases where  

the parties are not residing in those territories but the  

property involved is situate within those territories.  

Clause (c) of section 57, however, is not relevant for the  

present purposes. Therefore, where both the person and  

property of any Hindu, Budhist, Sikh or Jaina, are  

outside the territories mentioned above, the rigour of  

section 213, sub-section (1), is not attracted. Reference  

was made by the learned referring Judge to a decision of  

the Supreme Court in Mrs. Hem Nolini v. Mrs. Isolve  

Sarojbashini Bose, AIR 1962 Supreme Court 1471,  but  

the parties in that case were Christians (to whom it is  

agreed section 57 does not apply) and their Lordships  

only considered the implications of sub-section (1) of  

section 213 of the Act and not of sub-section (2) of that  

section read with section 57 clauses (a) and (b). The  

learned Single Judge probably felt the difficulty because  

                                                 3  1968 AIR (Punjab) 108

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of the view taken by Shamsher Bahadur, J. In Kesar  

Singh and others v. Tej Kaur, 1961 P.L.R. 473, but that  

judgment was considered by Falshaw, J. (as he then  

was) in Ram Chand v. Sardara Singh, 1962 P.L.R. 265,  

who differed from the view taken by Shamsher Bahadur,  

J., in the above-mentioned case, holding that no probate  

was necessary in order to set up a claim regarding  

property either movable or immovable on the basis of a  

will executed in the Punjab and a succession certificate  

could be granted on the ground of a will without  

obtaining probate. While referring to the decision of  

Shamsher Bahadur, J., in Kesar Singh's case, Falshaw, J.,  

observed that the view taken by Shamsher Bahadur, J.,  

was apparently based on the decision of a Full Bench  

in Ganshomdass v. Gulab Bi Rai, ILR 50 Madras 927  

where it was held that a defendant resisting a claim  

made by the plaintiff as heir-at-law could not rely in  

defence on a will executed in his favour at Madras in  

respect of property situate in Madras, when the will was  

not probated and no letters of administration with the  

will annexed had been granted. The Madras case was  

clearly in accordance with section 213 read with section  

57 of the Act. We agree with the view taken by Falshaw,  

J., in Ram Chand's case. A similar view was expressed by  

Jai Lal, J., in Sohan Singh v. Bhag Singh, AIR 1934  

Lahore 599, and by me in C.R. 340-D/1965 (Radhe  

Lal v. Ladli Parshad) decided on 24th August, 1965. Even  

a cursory glance at sections 213 and 57 of the Act leaves  

no room for doubt that the view taken by Shamsher  

Bahadur, J., in the case mentioned above was erroneous.  

It appears that the case of Sohan Singh v. Bhag Singh  

(supra), referred to above, was not brought to his  

notice.”  

9) In Mrs. Winifred Nora Theophilus v. Mr. Lila Deane & Ors.4, a  

Single Bench of Delhi High Court held as under:  

“11. On interpretation of Section 213 read with  

Section 57 (a) and (b), the Courts have opined that  

where the will is made by Hindu, Buddhist, Sikh and  

Jaina and were subject to the Lt. Governor of Bengal or  

within the local limits of ordinary, original civil  

jurisdiction of High Courts of Judicature at Madras and  

                                                 4  AIR 2002 Delhi 6

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Bombay or even made outside but relating to  

immovable property within the aforesaid territories that  

embargo contained in Section 213 shall apply. From  

this it stands concluded that if will is made by Hindu,  

Buddhist, Sikh or Jaina outside Bengal, Madras or  

Bombay then embargo contained in Section 213 shall  

not apply. This is what the various judgments cited by  

the learned counsel for the defendants decide.  

Therefore, there is no problem in arriving at the  

conclusion that if the will is made in Delhi relating to  

immovable property in Delhi by Hindu, Buddhist, Sikh  

or Jaina, no probate is required.”  

10) The Division Bench of Delhi High Court in Shri Rajan Suri & Anr.  

v. The State & Anr.5 referred to the Division Bench judgment in  

Behari Lal’s case and certain other Single Bench judgments of  

Delhi High Court to conclude as under:  

“33. The result of the aforesaid is that complete line  

of judgment referred by the learned counsel for the  

petitioner in support of the submission that probate is  

mandatory would have no application to the facts of the  

present case and thus findings arrived at in the  

collateral proceedings in the suit to which the  

petitioners were parties would bind the petitioners.”  

11) Learned counsel for the respondents also referred to the Supreme  

Court judgment in Clarence Pais & Ors. v. Union of India6  

wherein, validity of Section 213 of the Act was challenged as  

unconstitutional and discriminatory against the Christians. This  

Court held as under:  

“6. … 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 under Sections 57(a) and (b), sub-section (2) of  

                                                 5  AIR 2006 Delhi 48  6  (2001) 4 SCC 325

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Section 213 of the Act applies and sub-section (1) 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.  

The result is that the contention put forth on behalf of  

the petitioners that Section 213(1) of the Act is  

applicable only to Christians and not to any other religion  

is not correct.”  

12) The statutory provisions are clear that the Act is applicable to Wills  

and codicils made by any Hindu, Buddhist, Sikh or Jain, who 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 Madras or Bombay - {clause (a) of Section 57 of the  

Act}.  Secondly, it is applicable to all Wills and codicils made  

outside those territories and limits so far as relates to immoveable  

property within the territories aforementioned - Clause (b) of  

Section 57. The clause (c) of Section 57 of the Act relates to the  

Wills and codicils made by any Hindu, Buddhist, Sikh or Jain on or  

after the first day of January, 1927, to which provisions are not  

applied by clauses (a) and (b).  However, sub-section (2) of  

Section 213 of the Act applies only to Wills made by Hindu,  

Buddhist, Sikh or Jain where such Wills are of the classes specified  

in clauses (a) or (b) of Section 57.  Thus, clause (c) is not  

applicable in view of Section 213(2) of the Act.    

13) In view thereof, the Wills and codicils in respect of the persons who  

are subject to the Lieutenant-Governor of Bengal or who are within

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the local limits of ordinary original civil jurisdiction of High Court of  

Madras or Bombay and in respect of the immoveable properties  

situated in the above three areas.  Such is the view taken in the  

number of judgments referred to above in the States of Punjab and  

Haryana as well as in Delhi as also by this Court in Clarence Pais.   

14) In view of the above, we do not find any error in the judgment  

passed by the Division Bench of the Delhi High Court.   

Consequently, the appeal is dismissed.  

 .............................................J.  

(L. NAGESWARA RAO)    

 .............................................J.  

(HEMANT GUPTA)    

NEW DELHI;  JULY 24, 2019.