12 Feb 2121

Probate proceedings, although in rem cannot be given preference over partition suit if it makes the Supreme Court a fait accompli

Case : Ravinder Nath Agarwal v. Yogender Nath Agarwal & Ors. Transfer Petition (Civil) No. 970 of 2016

Court : Supreme Court of India

Bench : Justice V. Ramasubramanian

Decided on : 12 Feb 2121

Relevant Statutes

Section 57, 213, 273(b) and 264 of the Indian Succession Act, 1925

Brief Facts and Procedural History

1. One Shri Badri Nath Agarwal, who was a resident of Village Bithoriya No.1, Tehsil Haldwani, District Nainital, Uttarakhand, died on 07.05.2011, at the age of 91 years, leaving behind him surviving a daughter and five sons, namely Lily Nath, Major Ravinder Nath Agarwal (eldest son), Surender Nath, Virender Nath Agarwal, Yogender Nath Agarwal, and Narender Nath (deceased, died on 06.09.2019 leaving behind his wife Smt. Ira Joshi and two sons by name Nikhil Nath and Aditya Nath).

2. Major Ravinder Nath Agarwal claimed that his father Late Badri Nath executed his last will on 06.04.2011, cancelling and revoking his previous Will dated 26.06.2005 and that under the last Will dated 06.04.2011, a vast extent of agricultural land in Village Bithoriya No.1 was bequeathed to him and got mutation affected in his favour.

3. Lily Nath filed a writ petition before the High Court of Uttarakhand challenging the mutation affected in favour of her eldest brother, and also filed a civil suit before the Civil Judge, Senior Division, Nainital seeking a decree of a permanent injunction. It was dismissed for non-prosecution on 27.11.2015.

4. As a counterblast, Major Ravinder Nath also filed a civil suit before the Civil Judge, Senior Division seeking a decree of the permanent injunction which is pending.

5. Thereafter the last son Yogender Nath, filed a suit in 2012 before the High Court of Delhi, for a partition of all the properties left behind by deceased Badri Nath. In 2016, presumably after the filing of the written statements, the said suit was transferred before the Additional District Judge, Saket Court, New Delhi.

6. Immediately thereafter, Major Ravinder Nath Agarwal filed the 1st transfer petition, seeking the transfer of the partition suit pending on the file of the Additional District Judge, Saket, New Delhi to the Court of District Judge at Nainital, Uttarakhand. On 08.07.2016, this Court ordered notice in the transfer petition and also granted a stay of further proceedings in the partition suit.

7. But a few days before the Supreme Court ordered notice and granted stay, Yogender Nath abandoned the partition suit and hence only Lily Nath got herself transposed as the plaintiff. The original plaintiff Yogender Nath was transposed as a defendant.

8. On 09.10.2018, this Court passed an order in the 1st transfer petition, vacating the stay of further proceedings in the partition suit. Thereafter Major Ravinder Nath filed a petition in Testamentary Case before the High Court of Uttarakhand at Nainital, seeking the grant of letters of administration with the Will dated 06.04.2011 annexed thereto, under Section 276 read with Sections 250 and 273(b) of the Indian Succession Act, 1925. Upon receipt of summons in the said testamentary case, the daughter Lily Nath came up with the 2nd transfer petition praying for the transfer of the testamentary case from Uttarakhand High Court to the District Court, Saket, New Delhi where her partition suit is now pending, so that both could be tried together.

Issue of the Case

Whether the partition suit pending before the District Court at Saket, New Delhi should be transferred to the District Court, Nainital, Uttarakhand or whether the testamentary case pending on the file of the High Court of Uttarakhand should be transferred to the District Court, Saket, so that it could be tried along with the partition suit already pending there?

The Observations of the Court

The Honourable Supreme Court observed that:

1. The High Court of Uttarakhand at Nainital does not have ordinary original civil jurisdiction, though it has jurisdiction to entertain a testamentary case for the grant of probate or letters of administration. Therefore, the partition suit pending in the District Court, Saket cannot be transferred to the High Court of Uttarakhand but can be transferred only to a District Court in Nainital. The District Court, Nainital will not have jurisdiction to grant probate/letters of administration in respect of a property located outside its territorial limits, if its value exceeds Rs.10,000/. Per contra, both the High Court of Delhi as well as the District Court, Saket, have jurisdiction to entertain an application for the grant of probate/letters of administration subject to certain conditions/restrictions.

2. The last will, dated 06.04.2011 set up by the eldest son Major Ravinder Nath, covered two properties, one of which is a MIG flat promoted by the Delhi Development Authority at Saket, New Delhi. The other property is a bhumidhari land of approximately 6.8550 hectares in Village Bithoriya No.1, along with a residential house, service quarters and sheds. Therefore under Section 264(1) of the Indian Succession Act, 1925, the District Judge, Saket has jurisdiction to entertain a petition for the grant letters of administration, at least in respect of the property at Delhi.

3. The partition suit was filed in 2012 before the High Court of Delhi and was transferred to the District Court, Saket in 2016. When Major Ravinder Nath came up with the 1st transfer petition, no proceeding for the grant of letters of administration was pending in the High Court of Uttarakhand. Major Ravinder Nath filed a testamentary case in the High Court of Uttarakhand only in January 2019, after the stay of partition suit granted in the 1sttransfer petition was vacated on 09.10.2018. Therefore, he created a situation in the 1st transfer petition that could be taken advantage of by him.

4. A cumulative reading of Sections 57, 213 and 264 of the Indian Succession Act, 1925 would show that a person claiming to be an executor or legatee under a Will cannot rely upon the Will, in any proceeding before a Court of justice, unless he has obtained probate (if an executor has been appointed) or letters of administration with the Will annexed if such a Will has been executed by certain classes of persons; and that the jurisdiction to grant probate or letters of administration vests only in courts located within the towns of Calcutta, Madras or Bombay and the Courts in any local area notified by the State Government in the Official Gazette.

5. Therefore, unless the testator belongs to any of the classes of persons specified in the Act; and unless the Will is made or some of the properties covered by the Will are located, within the local limits of a notified area, there is no necessity for an executor or a legatee under a Will to seek probate or letters of administration. The decision in Balbir Singh Wasu v. Lakhbir Singh & Others, (2005) 12 SCC 503 did not take note of the bar under Section 264(2) when it opined that Section 213 is not read as prohibiting the executor from applying for probate as a matter of prudence or convenience to the courts in other parts of the country not covered by Section 213.

6. Under Section 213(2)(i) read with Clauses (a) and (b) of Section 57, the mandatory requirement to seek probate or letters of administration for establishing a right as executor or legatee under a Will, applies only to Wills made by a Hindu, Buddhist, Sikh or Jaina within the local limits of the ordinary original civil jurisdiction of certain High Courts and to Wills made outside those territories, to the extent they cover immovable property situate within those territories. Therefore, there is no prohibition for a person whose case falls outside the purview of these provisions, from producing, relying upon and claiming a right under a Will, in any proceeding instituted by others including the other legal heirs for partition or other reliefs.

7. In the case on hand, Major Ravinder Nath himself proceeded first to have mutation effected in the revenue records and then to file a suit before Civil Judge, Senior Division, Nainital, for a decree of permanent injunction, based on the very same last will be dated 06.04.2011 of his father, without seeking letters of administration. He did not think that Section 213(1) was a bar for him to establish his right as a legatee under the Will, without obtaining letters of administration.

8. After having done so, in the 1st transfer petition, he chose to file Testamentary Case after 8 years of first shooting a claim under the Will and that too after the vacation of the stay of further proceedings in the partition suit by order dated 09.10.2018. Therefore, the 1st transfer petition could not be allowed to make the Supreme Court a fait accompli (a thing that gas already happened or been decided before those affected hear about it, leaving them with no option but to accept it.

9. The partition suit pending before the District Court, Saket was 8 years old, as it was instituted before the High Court of Delhi in September 2012 and was transferred to the District Court in 2016. The written statement in the said suit was filed by Major Ravinder Nath way back in November 2012, when the suit was pending in the High Court of Delhi. He had pleaded the execution of the disputed Will. The true copy of the Will was annexed to the written statement. Therefore, he was convinced that there was no bar for him to establish his right as a legatee under the will, even without first obtaining letters of administration. Hence, his subsequent act of filing a testamentary case before the High Court of Uttarakhand is nothing but a ruse to take advantage of the general proposition of law that probate proceedings are proceedings in rem and that they should have primacy. This argument is available only to a person who is disabled under Section 213(1), from relying upon a Will in any proceeding, without first obtaining probate/letters of administration. Therefore, the legal contention that the partition suit should follow the testamentary case is liable to be rejected in the facts and circumstances of this case.

10. Major Ravinder Nath did not even help himself by resorting to a transfer petition. After having claimed way back in November 2012 that there was a Will, he chose to file the testamentary proceedings only in January 2019, overlooking Article 137 of the Limitation Act, 1963 and certain decisions of the Supreme Court.

11. Nothing prevented the petitioner from filing the testamentary proceedings in the High Court of Delhi by taking advantage of Proviso (a) of Section 273 and seeking the withdrawal of the suit for partition from the District Court, Saket to the High Court to be tried together.

12. Therefore, the petitioner, taking advantage of the pendency of the partition suit from 2012 to 2016, could have filed the testamentary proceeding in the High Court of Delhi itself and relied upon Proviso (a) of section 273, instead of later relying upon Proviso (b) of Section 273.

13. In these days of virtual hearings, the location of the parties is hardly a matter of concern. An application was moved by Major Ravinder Nath seeking a direction to examine one of the attesters either through video conferencing or through the court-appointed commissioner, as he was 74 years of age, having a lot of medical issues and has also tested positive for Covid-19. Even according to him, the attester could be examined through video conference or court-appointed commissioner showed that the place where the proceedings are pending was immaterial.

14. The fact that 3 out of the surviving 5 children are citizens of other countries residing out of India and that therefore they cannot have any objection to the proceedings being tried in Uttarakhand would have been acceptable, had he chosen to make the first strike by filing the testamentary proceedings in 2011 or 2012. He did not do so. Therefore, there was no ground to order the transfer of the partition suit to the District Court, Nainital.

15. The second transfer petition sought transfer of the testamentary case pending in the High Court of Uttarakhand to the District Court, Saket, Delhi. Since the Will set up by the petitioner covers properties located both in Nainital and Delhi, both these courts have concurrent jurisdiction. But because of Proviso (b) to Section 273, letters of administration granted by a District Court cannot have validity in respect of a property located outside the State, if its value exceeds ₹10,000/-. However, this problem can be resolved by ordering the transfer of the testamentary case to the High Court of Delhi and ordering the transfer of the partition suit from the District Court, Saket back to the High Court of Delhi.

The Decision Held by the Court

The Honourable Supreme Court dismissed the 1st transfer petition, allowed the 2nd transfer petition, and held that:

1. The Testamentary Case pending before the High Court of Uttarakhand was ordered to be transferred to the High Court of Delhi.

2. The partition suit pending before the Additional District Court, Saket at Delhi shall be transferred to the High Court of Delhi and clubbed along with the testamentary proceeding and taken up together for disposal. Considering that the partition suit is about 8 years old, the High Court of Delhi may consider giving priority to the listing.

3. The parties were given liberty to move applications for the examination of the witnesses including the attesters of the Will, either through Video Conference or through Court-appointed Commissioners and applications for such reliefs may be considered by the High Court favourably.

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