probate is necessary in uttar poardesh ?

Bench: S .u.Khan

Sri Shayam Lal vs Sri Satya Narain Son Of Sri Sarjoo Pd. And State Of Uttar Pradesh Through The Collector

on 6/9/2007

JUDGMENT

S.U. Khan, J.

1. Heard learned Counsel for the parties.

2. Second revision is withdrawn/treated to be withdrawn to this court under Section 24 C.P.C.

3. The question involved in these revisions is as to whether it is essential to obtain probate of a Will before

claiming a right based thereupon in U.P. for Hindus or not.

4. First revision is directed against order dated 4/5.2.1987 passed by Nagar Maha Palika, Tribunal Kanpur in

reference case No. 24 of 1985 under Section 18 of the Land Acquisition Act. In the reference instituted by

Smt. Bhagana, substitution application Was filed. After the death of Smt. Bhagana, Shyam Lal claimed

substitution on the basis of succession while Satya Narain claimed to be the legatee under the alleged Will

executed by Smt. Bhagana on 1.9.1982. Smt. Bhagana died on 8.9.1982. Shyam Lal filed an application that

as Will was not probated, hence, substitution could not be ordered on the basis of the said Will. The said

question was decided against Shyam Lal and it was held that merely on the ground that probate was not

obtained claim on the basis of Will if proved could not be rejected. Before the court below an authority of the

Supreme Court reported in Mrs. H.N.Judah v. I.S. Bose was cited on behalf of Shyam Lal, however, the court

below placed reliance upon Bhaiya Ji v. Jageshwar Dayal cited on behalf of alleged legatee. Court below held

that by virtue of Section 57 read with Section 213 of Succession Act it was not necessary to obtain probate for

Hindu in respect of Will relating to properties situate outside the provinces of Bombay, Bengal and Madras.

5. The second revision is directed against order dated 13.5.1985 passed by I Additional Civil Judge, Kanpur in

O.S. No. 190 of 1983 in between the same parties involving the same question. The said case was instituted

under Section 370 of Succession Act for obtaining succession certificate. In the said case also learned Civil

Judge held that in view of Smt. Pitmo v. Shyam Singh probate was not necessary, hence, petition for grant of

succession certificate under Section 370 on the basis of Will was maintainable.

6. The matter has recently been considered by the Supreme Court in the authority reported in Clarence Pais v.

Union of India AIR 2001 SC 115. In the said case, Supreme Court has held that if a Will is executed by a

Hindu in respect of properties situate out side the provinces of Bengal, Bombay and Madras i.e. the territories

which on 1.9.1870 were not subject to Lieutenant Governor of Bengal or within the local limit of ordinary

Original Civil Jurisdiction of the High Court of Judicature at Madras and Bombay then probate is not

necessary in accordance with section 57 of Succession Act. The authority of Mrs. H.N. Judah v. I.S.Bose

(Supra) has also been mentioned in the said authority.

7. Learned Counsel for the! applicants placed reliance upon the aforesaid Supreme Court authority of 1962 as

well as the authority of Rakesh Sharma v. Civil Judge 2002 (2) ACJ 819. In the authority of Rakesh Sharma

placing reliance upon the Supreme Court authority of 1962 it has been held that probate is essential. The said

authority is by Single Judge. However, in a later division bench authority reported in Smt. Bimla Gaindhar v.

Smt. Uma Gaindhar and Anr. , it has been held that probate is not necessary for a Will executed in U.P. by a

Hindu.

8. It appears that in 1962 authority of Supreme Court parties were Christians. The names Mitter, Momin and

Judah indicate towards that direction. Probably it was for this reason that Supreme Court did not consider

Sri Shayam Lal vs Sri Satya Narain Son Of Sri Sarjoo ... on 6 September, 2007

Indian Kanoon - https://indiankanoon.org/doc/313786/ 1Section 57 of the Act. As held by the Supreme Court authority of 2001 probate is necessary if the Will is

executed by a Christian in respect of properties situated In U.P.

9. By virtue of Section 57 of the Act probate is necessary for a will executed by a Hindu provided that will is

made within the territories of Bengal, Madras and Bombay even though the properties may be situated outside

those territories or to the wills made outside such territories in respect of properties situate within those

territories. In the aforesaid authority of the Supreme Court of 1962 Will was made in Calcutta, hence, probate

was necessary.

10. Accordingly there is no merit in the revisions, hence, they are dismissed.

Sri Shayam Lal vs Sri Satya Narain Son Of Sri Sarjoo ... on 6 September, 2007

                                                                                                                        Thanking you