# Vivek Singhal v. Smt. Vijaya Rani Singhal

- **Citation:** (2025) 9 ILRA 1311
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-09-22
- **Case number:** First Appeal From Order No. 279 of 2011
- **Bench:** Chandra Kumar Rai
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/vivek-singhal-v-smt-vijaya-rani-singhal-53878
- **Pages:** 12

## Headnote

Section 57(c) of the Indian Succession Act,
1925, and whether the Additional District Judge
erred
in
rejecting
the
petition
as
nonmaintainable.

HEADNOTES
Civil Law - Indian Succession Act, 1925 -
Section 57, 57(a), 57(b), 57(c), 213 (2) -
First Appeal from Order - challenging the
rejection of probate case - and for remanded
back the matter before court below to decide
the probate case afresh - Will - executed in
favour of the Appellant regarding property in
Rajasthan - appellant sought probate of Will
field Probate Case - respondent filed no
objection - The Additional District Judge,
dismissed the probate case, holding that the Will
fell under Section 57(c) of the Act, 1925 and
thus probate could not be granted - hence the
instant
Appeal
-
appellant
arguing
misinterpretation of Section 57 and relying on
several precedents to show that probate should
not be refused when the Will is duly proved,
especially as Section 213(2) permits Hindus to
establish rights under a Will without probate -
the core issue as whether the lower court erred
in denying probate despite the Will being validly
executed and uncontested - the Court, after
considering arguments and precedents, held
that the Will was valid and that the Additional
District Judge erred in rejecting the probate
petition on the basis of Section 57 of the Indian
Succession Act, 1925 - Referring to rulings in
Triloki Nath, Kanta Yadav, and Clarence Pais, it
was clarified that probate petitions for Wills
under Section 57(c) are maintainable and
optional, and cannot be dismissed as nonmaintainable - hence, the impugned order is set
aside, Probate Case is restored to its original
number, and the lower court is directed to
decide the matter on its merits expeditiously -
First Appeal From Order is accordingly, allowed.
(Para - 14, 15, 16)
Appeal allowed. (E-11)
1312 INDIAN LAW REPORTS ALLAHABAD SERIES
CASE LAW CITED

## Text

9 All. Vivek Singhal Vs. Smt. Vijaya Rani Singhal
1311
13. In these circumstances, the
finding recorded by the learned trial Court
that the revisionist was dis-entitled for the
maintenance as she was covered by the bar
to grant of maintenance under 125(4)
Cr.P.C. is patently illegal and perverse and
is liable to be set aside. Consequently, the
matter is remanded back to the learned
Principal Judge, Family Court, Chandauli
for passing a fresh order in the light of the
observations made herein before only with
respect to the claim of the maintenance of
the revisionist without disturbing the
maintenance,
awarded
to
the
minor
daughter.

14. Let a copy of this order be
communicated to the learned Principal
Judge, Family Court, Chandauli and the
learned counsel for the revisionist may also
file a copy of this order before him within a
period of one month from today.

15.
Learned
Principal
Judge,
Family Court, Chandauli shall on receipt of
this order and after due notice to the
parties, proceed to decide the case within a
further period of three months. 16. With the
above directions, the instant criminal
revision stands allowed.
----------
(2025) 9 ILRA 1311
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 22.09.2025

BEFORE

THE HON'BLE CHANDRA KUMAR RAI, J.

First Appeal From Order No. 279 of 2011

Vivek Singhal ...Appellant
Versus
Smt. Vijaya Rani Singhal ...Respondent

Counsel for the Appellant:
K.M. Garg

Counsel for the Respondent:
Manoj Kumar Tiwari

ISSUE FOR CONSIDERATION
Whether the probate petition filed by the
appellant for the Will is maintainable under
Section 57(c) of the Indian Succession Act,
1925, and whether the Additional District Judge
erred
in
rejecting
the
petition
as
nonmaintainable.

HEADNOTES
Civil Law - Indian Succession Act, 1925 -
Section 57, 57(a), 57(b), 57(c), 213 (2) -
First Appeal from Order - challenging the
rejection of probate case - and for remanded
back the matter before court below to decide
the probate case afresh - Will - executed in
favour of the Appellant regarding property in
Rajasthan - appellant sought probate of Will
field Probate Case - respondent filed no
objection - The Additional District Judge,
dismissed the probate case, holding that the Will
fell under Section 57(c) of the Act, 1925 and
thus probate could not be granted - hence the
instant
Appeal
-
appellant
arguing
misinterpretation of Section 57 and relying on
several precedents to show that probate should
not be refused when the Will is duly proved,
especially as Section 213(2) permits Hindus to
establish rights under a Will without probate -
the core issue as whether the lower court erred
in denying probate despite the Will being validly
executed and uncontested - the Court, after
considering arguments and precedents, held
that the Will was valid and that the Additional
District Judge erred in rejecting the probate
petition on the basis of Section 57 of the Indian
Succession Act, 1925 - Referring to rulings in
Triloki Nath, Kanta Yadav, and Clarence Pais, it
was clarified that probate petitions for Wills
under Section 57(c) are maintainable and
optional, and cannot be dismissed as nonmaintainable - hence, the impugned order is set
aside, Probate Case is restored to its original
number, and the lower court is directed to
decide the matter on its merits expeditiously -
First Appeal From Order is accordingly, allowed.
(Para - 14, 15, 16)
Appeal allowed. (E-11)
1312 INDIAN LAW REPORTS ALLAHABAD SERIES
CASE LAW CITED
1. Surya Prakash Agarwal vs. Ajay Kumar
Agarwal (2008 (3) AWC 3004)
2. Smt. Bimla Gaindhar vs. Usha Gaindher (AIR
2004 Allahabad 329)
3. Smt. Usha Mohan vs. Property of late Sri
Mehr Chand Mohan (Testamentary Case No.1 of
1993, 13.8.2018)
4. Tiloki Nath vs. Kanhiya Lal (AIR 1978
Allahabad 297)
5. Nirmala Devi vs. Arun Kumar Gupta ((2005)
12 SCC 505)
6. Balbir Singh Wasu vs. Lakhbir Singh (2005
(12) SCC 503)
7. Ravinder Nath Agarwal vs. Yogender Nath
Agarwal ((2021) 15 SCC 282)
8. Kanta Yadav vs. Om Prakash Yadav ((2020)
14 SCC 102)
9. Behari Lal Ram Charan vs. Karam Chand
Sahni (1966 SCC Online Punj 226)
10. Dr. Sunil Kumar vs. Chaitanya Prakash
(2014 (10) ADJ 642)
11. Clarence Pais vs. Union of India (AIR 2001
SC 1151)
12. Binapani Kar Chowdhury vs. Satyabrata
Basu (2006 (3) AWC 3121 SC)

LIST OF ACTS
Indian Succession Act, 1925.

LIST OF KEYWORDS
Probate petition - Will deed - Maintainability -
Hindu Will - Ghaziabad jurisdiction - Probate
optional - Appeal from order.

CASE ARISING FROM
Probate Case No. 50 of 2007 filed before
Additional
District
Judge,
Court
No.5,
Ghaziabad. - Impugned order dated 26.11.2010
rejecting probate petition.

APPEARANCE OF PARTIES
Counsel for Appellant(s): Shri K M Garg.
Counsel for Respondent(s): Shri Manoj Kumar
Tiwari.

(Delivered by Hon'ble Chandra Kumar
Rai, J.)

1. Heard Mr. K.M. Garg, learned
counsel for the appellant and Mr. Manoj
Kumar Tiwari, learned counsel for the
respondent.

2. Brief facts of the case are that
the appellant has filed probate case in the
Court of District Judge, Ghaziabad seeking
probate of Will deed dated 11.12.1974
executed at District- Ghaziabad by one
Kulveer Singh son of Raghunath Singh in
favour of appellant/ Vivek Singhal in
respect to immovable property situated at
Village- Balkund, Tahsil- Ladpur, District-
Kota, State-Rjasthan. The aforementioned
case was registered as probate case no.50
of 2007. In the aforementioned probate
case specific and general citation has been
issued as well as published in Hindi Daily
Aaj. The appellant has filed an application
seeking the valuation of the property and
proforma of schedule III. The appellant has
also filed an affidavit in his examination in
Chief. Respondent has filed her no
objection and her own affidavit stating that
she has no objection for granting probate in
favour
of
the
appellant.
In
the
aforementioned probate case one Rajkumar
Samsun, Notary Advocate, Ghaziabad has
filed his own affidavit proving execution
and attestation of Will. One Vandana, sister
of the appellant has filed an amendment
application seeking her right in the property
in dispute. The amendment application has
been rejected by the Court vide order dated
26.11.2007 on the ground that Will has
been executed in favour of appellant only,
as
such,
applicant
of
amendment
application is neither necessary nor proper
party in the probate case. Additional
District Judge, Court No.5, Ghaziabad vide
order dated 26.11.2010 rejected the probate
case merely on the ground that Will is not
covered by the Clause (a) & (b) of Section
57 of the Indian Succession Act, 1925 but it
is covered by the Clause (c) of Section 57
of Indian Succession Act, 1925, as such,
9 All. Vivek Singhal Vs. Smt. Vijaya Rani Singhal
1313
probate could not be granted. Hence this
first appeal from order on behalf of the
appellant for the following relief:

 " The relief sought by means of
the present First Appeal From Order is that
this Hon'ble Court may graciously be
pleased to allow the present First Appeal
From Order in toto, set aside the impugned
order dated 26.11.2010 passed by the
learned Additional District Judge, Court
No.5, Ghaziabad in Probate Case No.50 of
2007 and Probate Case be remanded back
to the learned Court below to decide the
same on merits or to allow the Probate
Case No.50 of 2007 with cost and / or pass
such other further order which this Hon'ble
Court may deem fit and proper in the facts
and circumstances of the case. "

3. This Court on 3.2.2017, issued
notice to respondent.

4. In pursuance of the order of this
Court dated 3.2.2017, respondent has put in
appearance through counsel.

5. Learned counsel for the appellant
submitted that the learned Additional District
Judge has committed manifest error of law in
misreading and misinterpreting the provisions
of Section 57 of the Indian Succession Act,
1925.
He
further
submitted
that
the
provisions contained under Section 57 of
Indian Succession Act, 1925 does not
prohibit to grant probate of Will. He further
submitted that respondent has filed an
affidavit to the effect that she has no
objection in granting probate in favour of
applicant / appellant, as such, learned
Additional
District
Judge
was
under
obligation to grant probate to the Will-deed
dated 11.12.1974 executed at Ghaziabad
itself. He further submitted that according to
the provisions contained under Section 213
(2) read with Section 57 of Indian Succession
Act, 1925, it is fully demonstrated that so long
as particular Will executed by Hindu even if is
not covered by the clause (a) and clause (b) of
Section 57 of Indian Succession Act, 1925 can
establish his right as legatee in any Court of law
without obtaining probate. He further submitted
that the Court cannot refuse to grant probate
when the Will has been duly proved and last
Will of testator. He further submitted that the
impugned order is against the law, facts and
evidence on record, as such, the same is liable
to be set aside. He placed reliance upon the
following judgements of Apex Court as well as
this Court:

 i. 2008 (3) AWC 3004, Surya
Prakash Agarwal vs. Ajay Kumar Agarwal
and others.

 ii. AIR 2004 ALLAHABAD 329,
Smt. Bimla Gaindhar vs. Usha Gaindher
and another.

 iii. Testamentary Case No.1 of
1993 dated 13.8.2018, Smt. Usha Mohan
vs. Property of late Sri Mehr Chand
Mohan Saraswati Bhawan, Chandganj
Extension.

 iv. AIR 1978 ALLAHABAD 297,
Tiloki Nath vs. Kanhiya Lal and others.

 v. (2005) 12 SCC 505, Nirmala
Devi vs. Arun Kumar Gupta and others.

 vi. 2005 (12) SCC 503, Balbir
Singh Wasu vs. Lakhbir Singh.

 vii. (2021) 15 SCC 282, Ravinder
Nath Agarwal vs. Yogender Nath Agarwal
and others.

 viii. (2020) 14 SCC 102, Kanta
Yadav vs. Om Prakash Yadav and others.
1314 INDIAN LAW REPORTS ALLAHABAD SERIES
 ix. 1966 SCC Online Punj 226,
Behari Lal Ram Charan vs. Karam Chand
Sahni and others.

 x. 2014 (10) ADJ 642, Dr. Sunil
Kumar vs. Chaitanya Prakash and others.

 xi. AIR 2001 SC 1151, Clarence
Pais and others vs. Union of India.

 xii. 2006 (3) AWC 3121 (SC),
Binapani Kar Chowdhury vs. Satyabrata
Basu and another.

6. On the other hand, Mr. Manoj
Kumar Tiwari, learned counsel for the
respondent submitted that the respondent
has no objection to the prayer made in the
probate case for grant of probate on the
basis of Will-deed dated 11.12.1974
executed by Kulveer Singh in favour of the
appellant.

7. I have considered the argument
advanced by learned counsel for the parties
and perused the records.

8. There is no dispute about the fact
that the Will-deed has been executed on
11.12.1974 at the Ghaziabad by one Kulveer
Singh in favour of appellant- Vivek Singhal.
There is also no dispute about the fact that
Additional District Judge under the impugned
order dated 26.11.2010 has held that the
probate cannot be issued in view of the
provisions contained under Section 57 (a) (b)
(c) of Indian Succession Act, 1925.

9. In order to appreciate the
controversy involved in the matter, perusal
of Section 57 (a) (b) (c) will be relevant,
which are as under:

 "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 Ill 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 immovable 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."

10. Perusal of Section 213 of
Indian Succession Act, 1925 will be also
relevant, which is as under:

 "Section 213. No 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 1[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 or
Indian Christians], and shall only apply?
9 All. Vivek Singhal Vs. Smt. Vijaya Rani Singhal
1315
 (i) in the case of wills made by
any Hindu, Buddhist, Sikh or Jaina where
such wills are of 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 4[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."

11. In order to appreciate the
controversy involved in the matter, perusal
of paragraph nos.3 & 4 of the judgement
rendered by Allahabad High Court in the
case of Triloki Nath (supra) will be
relevant, which are as under:

 "3. I have heard the learned
counsel for the parties and in my opinion,
the contention raised by the learned
counsel is wholly misconceived. Section
264(1) of the Act makes it clear that the
District Judge has jurisdiction in granting
and revoking probates and letters of
administration in all cases within his
district. Section 264(2) of the Act makes
it clear that except in cases to which
section 57 of the Act applies, no court
shall (apart from local limits of the towns
of Calcutta, Madras and Bombay) receive
applications or probate or letters of
administration
until
the
State
Government has by notification in the
official Gazette authorised it so to do. It
is evident that where section 57 applies,
notification is not necessary. Section 57
of the Act has three sub-clauses. Subclause (c) is relevant. Section 57 read
with sub-clause (c) reads as follows:
 "Section 57(c): The provisions of
this part which are set out in Schedule III
shall, subject to the ??? and notifications
specified therein, apply?

 (c) to all wills and codicils made
by any Hindu, Budhist, Sikh or Jaina on or
after the first day of January, 1927, to
which those provisions are not applied by
clauses (a) and (b)."

 4. It is apparent from a perusal of
the above that where a will has been made
by a Hindu, Budhist, Sikh or Jaina on or
after the 1st day of January, 1927, and to
which sub-clauses (a) and (b) do not apply,
the provisions of part VI of the Act would
apply subject to the restrictions and
modifications specified in Schedule III.
Schedule III lays down five restrictions and
modifications. There is no dispute that none
of these five clauses have any application
in the present case. Admittedly, in the
present case, the date of the execution of
the will is after the 1st January, 1927, and
the deceased was a Hindu. Consequently
the provisions of section 57 are attracted
and in view of the language of section
264(2) of the Act, there was no necessity of
a notification in the official Gazette
empowering the District Judge to entertain
petitions for probates and letters of
administration and grant the same. It
therefore follows that the District Judge
has jurisdiction to entertain petitions and
grant letters of administration."

12. Perusal of Paragraph nos.6 to
12 of the judgement passed in Kanta Yadav
(supra) will be relevant, which are as
under:

 "6. The said provisions have been
examined and come up for consideration
time and again before the Punjab and
1316 INDIAN LAW REPORTS ALLAHABAD SERIES
Haryana High Court and the Delhi High
Court. In Ram Chand v. Sardara Singh
[Ram Chand v. Sardara Singh, 1961 SCC
OnLine P&H 233 : AIR 1962 P&H 382 :
PLR (1962) 64 P&H 265] , the Punjab
High Court held as under : (SCC OnLine
P&H : AIR p. 388, paras 5-7)

 "5. 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.

 6. There remains to be considered
the decision [Kesar Singh v. Tej Kaur,
1961 SCC OnLine P&H 71 : PLR (1961)
63 P&H 473] 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 [Ganshamdoss Narayandoss
v. Gulab Bi Bai, 1927 SCC OnLine Mad
158 : ILR (1927) 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.

 7. 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 412-1961. The parties will bear their own
costs in this Court."

 7. The said view was affirmed by
the Division Bench of the Punjab and
Haryana High Court in Behari Lal Ram
Charan v. Karam Chand Sahni [Behari Lal
Ram Charan v. Karam Chand Sahni, 1966
SCC OnLine P&H 226 : AIR 1968 P&H
108] : (SCC OnLine P&H)

 "3. From a bare perusal of these
two sections it is apparent that the
objection
of
Defendant
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, Buddhist, 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 Hem
Nolini Judah v. Isolyne Sarojbashini Bose
9 All. Vivek Singhal Vs. Smt. Vijaya Rani Singhal
1317
[Hem Nolini Judah v. Isolyne Sarojbashini
Bose, AIR 1962 SC 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 of the view taken by
Shamsher Bahadur, J. In Kesar Singh v.
Tej Kaur [Kesar Singh v. Tej Kaur, 1961
SCC OnLine P&H 71 : PLR (1961) 63
P&H 473] , but that judgment was
considered by Falshaw, J. (as he then was)
in Ram Chand v. Sardara Singh [Ram
Chand v. Sardara Singh, 1961 SCC OnLine
P&H 233 : AIR 1962 P&H 382 : PLR
(1962) 64 P&H 265] , who differed from
the view taken by Shamsher Bahadur, J., in
the abovementioned 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 case [Kesar Singh v. Tej Kaur,
1961 SCC OnLine P&H 71 : PLR (1961)
63 P&H 473] , Falshaw, J., observed that
the view taken by Shamsher Bahadur, J.,
was apparently based on the decision of a
Full Bench in Ganshamdoss Narayandoss
v.
Gulab
Bi
Bai
[Ganshamdoss
Narayandoss v. Gulab Bi Bai, 1927 SCC
OnLine Mad 158 : ILR (1927) 50 Mad 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
case [Ram Chand v. Sardara Singh, 1961
SCC OnLine P&H 233 : AIR 1962 P&H
382 : PLR (1962) 64 P&H 265] . A similar
view was expressed by Jai Lal, J., in Sohan
Singh v. Bhag Singh [Sohan Singh v. Bhag
Singh, 1934 SCC OnLine Lah 183 : AIR
1934 Lah 599] , and by me in Radhe Lal v.
Ladli Parshad [Radhe Lal v. Ladli
Parshad, CR No. 340-D of 1965, order
dated 24-8-1965 (P&H)] . 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
[Sohan Singh v. Bhag Singh, 1934 SCC
OnLine Lah 183 : AIR 1934 Lah 599] ,
referred to above, was not brought to his
notice.?

 8. In Winifred Nora Theophilus v.
Lila Deane [Winifred Nora Theophilus v.
Lila Deane, 2001 SCC OnLine Del 644 :
AIR 2002 Del 6] , a Single Bench of the
Delhi High Court held as under : (SCC
OnLine Del para 11)

 "11. On interpretation of Section
213 read with Sections 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
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
1318 INDIAN LAW REPORTS ALLAHABAD SERIES
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."

 9. The Division Bench of the
Delhi High Court in Rajan Suri v. State
[Rajan Suri v. State, 2005 SCC OnLine
Del 1290 : AIR 2006 Del 148] referred
to the Division Bench judgment in
Behari Lal [Behari Lal Ram Charan v.
Karam Chand Sahni, 1966 SCC OnLine
P&H 226 : AIR 1968 P&H 108] case
and
certain
other
Single
Bench
judgments of the Delhi High Court to
conclude as under : (Rajan Suri case
[Rajan Suri v. State, 2005 SCC OnLine
Del 1290 : AIR 2006 Del 148] , SCC
OnLine Del para 33)

 "33. The result of the aforesaid is
that complete line of judgments 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."

 10. The learned counsel for the
respondents also referred to the Supreme
Court judgment in Clarence Pais v. Union
of India [Clarence Pais v. Union of India,
(2001) 4 SCC 325] wherein, validity of
Section 213 of the Act was challenged as
unconstitutional and discriminatory against
the Christians. This Court held as under :
(SCC p. 332, para 6)

 "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 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.'

 11. 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 Ac].
Secondly, it is applicable to all wills and
codicils made outside those territories and
limits so far as relates to immovable
property
within
the
territories
aforementioned, clause (b) of Section 57.
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
9 All. Vivek Singhal Vs. Smt. Vijaya Rani Singhal
1319
 12. 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 the local limits of
ordinary original civil jurisdiction of the
High Court of Madras or Bombay and in
respect
of
the
immovable
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 [Clarence Pais
v. Union of India, (2001) 4 SCC 325] ."

13.
Perusal
of
Paragraph
nos.Paragraph nos.5 to 8 of the judgement
rendered in the case of Clarence Pais
(supra) will be relevant, which are as
under:

 "5. On several representations
having been made in this regard by the
Christian community in India amendment
was sought to be introduced by way of a
Bill to amend Section 213 of the Act to
bring Christians on a par with other
communities who are not required to obtain
probate. The grievance of the petitioners in
these cases, it is stated, is well brought out
in the ?Statement of Objects and Reasons?
dated 13-5-1942 (sic) in respect of the
proposed amendment of Section 213 which
reads as under:

 "Prior to 1901, Indian Christians
laboured
under
a
serious
grievance,
namely, that they were compelled to obtain
probate
of
wills
and
letters
of
administration with liability to pay death
duties on the death of every owner of
property under the Indian Succession Act
10 of 1865, while Hindus and Muslims
were exempt from the provisions of the
Act. They have since been partially
relieved by being placed practically on the
same
footing
as
their
non-Christian
countrymen in cases of intestacy under the
Indian Christian Estates Administration Act
7 of 1901; but where the deceased has left a
will, they are still bound to obtain probate
and pay probate duty as required by Section
213 of the Indian Succession Act 39 of
1925, a section which does not apply to
will of Hindus, Buddhists, Sikhs or Jains
except where such wills are of the class
specified in clauses (a) and (b) of Section
57 and to all wills of Muhammadans.

 The necessity of making wills has
been imposed upon Indian Christians by
the provisions of the Indian Succession Act
as to intestate succession being made
applicable to them, which are far in
advance of their usages and are derived
from English law. It is felt as a serious
hardship that in such circumstances Indian
Christians should be compelled to obtain
probate and should be made liable to pay
death duties while their non-Christian
countrymen to whom wills are a luxury are
exempt. From this injustice they should be
relieved by placing Indian Christians on the
same footing as Hindus and Muhammadans
in Sections 213 and 370 of the Act."

 Sections 57 and 213 of the Act
provide as follows:

 "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
1320 INDIAN LAW REPORTS ALLAHABAD SERIES
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 immovable 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."

 "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, 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, insofar as they relate to
immovable property situate within those
limits."

 The Hindu Wills Act, 1870 is the
forerunner of Section 57 of the Act. This
section without the proviso together with
Schedule III except Article (5) is Section 2
of the Hindu Wills Act, 1870 as amended
by Section 154 of the Probate and
Administration Act, 1881. The proviso is
proviso to Section 3 of the Hindu Wills
Act. Thus, the scheme of the said
enactment is retained in Section 57 of the
Act.

 6. The scope of Section 213(1) of
the Act is that it prohibits recognition of
rights as an executor or legatee under a will
without production of a probate and sets
down a rule of evidence and forms really a
part of procedural requirement of the law of
forum. Section 213(2) of the Act indicates
that its applicability is limited to cases of
persons mentioned therein. Certain aspects
will have to be borne in mind to understand
the exact scope of this section. The bar that
is imposed by this section is only in respect
of the establishment of the right as an
executor or legatee and not in respect of the
establishment of the right in any other
capacity. The section does not prohibit the
will being looked into for purposes other
than those mentioned in the section. The
bar to the establishment of the right is only
for its establishment in a court of justice
and not its being referred to in other
proceedings before administrative or other
tribunals. The section is a bar to everyone
claiming under a will, whether as a plaintiff
or defendant, if no probate or letters of
administration are granted. The effect of
Section 213(2) of the Act is that the
requirement
of
probate
or
other
9 All. Vivek Singhal Vs. Smt. Vijaya Rani Singhal
1321
representation mentioned in sub-section (1)
for the purpose of establishing the right as
an executor or legatee in a court is made
inapplicable in case of a will made by
Muhammadans and in the case of wills
coming under Section 57(c) of the Act.
Section 57(c) of the Act applies to all wills
and codicils made by any Hindu, Buddhist,
Sikh or Jaina, on or after the first day of
January, 1927 which does not relate to
immovable property situate within the
territory formerly subject to the Lieutenant
Governor of Bengal or within the local
limits of the ordinary civil jurisdiction of
the High Courts of Judicature at Madras
and Bombay, or in respect of property
within those territories. No probate is
necessary in the case of wills by
Muhammadans.
Now
by
the
Indian
Succession (Amendment) Act, 1962, the
section has been made applicable to wills
made
by
Parsis
dying
after
the
commencement of the 1962 Act. 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), subsection (2) of 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.

 7. We have shown above that it is
applicable to Parsis after the amendment of
the Act in 1962 and to Hindus who reside
within the territories which on 1-9-1870
were subject to the Lt. Governor of Bengal
or to areas covered by original jurisdiction
of the High Courts of Bombay and Madras
and to all wills made outside those
territories and limits so far as they relate to
immovable property situate within those
territories and limits. If that is so, it cannot
be said that the section is exclusively
applicable only to Christians and, therefore,
it is discriminatory. The whole foundation
of the case is thus lost. The differences are
not based on any religion but for historical
reasons that in the British Empire in India,
probate was required to prove the right of a
legatee or an executor but not in Part ?B?
or ?C? States. That position has continued
even after the Constitution has come into
force. Historical reasons may justify
differential
treatment
of
separate
geographical regions provided it bears a
reasonable and just relation to the matter in
respect of which differential treatment is
accorded. Uniformity in law has to be
achieved, but that is a long-drawn process.
Undoubtedly, the States and Union should
be alive to this problem. Only on the basis
that some differences arise in one or the
other States in regard to testamentary
succession, the law does not become
discriminatory so as to be invalid. Such
differences are bound to arise in a federal
set-up.

 8. The learned counsel for the
petitioners relied on the decisions in B.
Venkataramana v. State of Madras [1951
SCC 359 : AIR 1951 SC 229] ,
Sheokaransingh v. Daulatram [AIR 1955
Raj 201 : 1956 Raj LW 81 (FB)] , State of
Rajasthan v. Thakur Pratap Singh [AIR
1960 SC 1208] , Hem Nolini Judah v.
Isolyne Sarojbashini Bose [AIR 1962 SC
1471 : 1962 Supp (3) SCR 294] , Mary
Sonia Zachariah v. Union of India [(1995)
1 KLT 644 (FB)] , Ahmedabad Women
1322 INDIAN LAW REPORTS ALLAHABAD SERIES
Action Group (AWAG) v. Union of India
[(1997) 3 SCC 573] and Preman v. Union
of India [(1998) 2 KLT 1004] . However,
in the light of the above conclusion, it is
unnecessary to refer to those decisions,
though some of them may have a bearing in
analysing and understanding the scope of
the provisions, which are made applicable
exclusively to Christians as it happened in
the case of Section 118 of the Act or in the
case of the Indian Divorce Act. Therefore,
we have not adverted to anyone of these
provisions. If Christians alone had been
discriminated against by treating them as a
separate class, we think the argument could
have
been
understood
and
merited
consideration."

14. Apex Court as well as this
Court in the aforementioned judgements
rendered in Trilokin Nath (supra), Kanta
Yadav (supra) & Clarence Pais (supra) as
quoted above has clearly held that probate
petition is maintainable without notification
and rigour of Section 213 will not be
applicable with regard to Wills falling
under Section 57 (c). It has also been held
that probate petition is optional and the
same
cannot
be
rejected
as
not
maintainable.

15. Considering the ratio of law
laid down by Hon'ble Apex Court and this
Court, the judgement / order dated
26.11.2010 passed by learned Additional
District Judge, Court No.5, Ghaziabad
cannot be sustained in the eye of law.

16. Considering the entire facts and
circumstances of the case, the judgement /
order dated 26.11.2010 passed by learned
Additional District Judge, Court No.5,
Ghaziabad is liable to be set aside and the
same is hereby set aside. The Probate Case
No.50 of 2007 is restored to its original
number and the Court shall decide the
aforementioned Probate Case No.50 of
2007 in accordance with law on merit
expeditiously
after
affording
proper
opportunity of hearing to the parties.

17. The instant First Appeal From
Order is allowed to the extant indicated
above.

18. No order as to costs.
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