ORDER
A.V. Srinivasa Reddy, J.
1. The petitioner-tenant calls in question the validity and correctness of the order dated 6th February, 2003 passed by the XII Additional Judge, Court of Small Causes, Bangalore in H.R.C. No. 1612 of 1997 allowing the eviction petition and directing the petitioner-tenant to vacate the petition premises.
2. The respondent-land lord filed the petition pleading requirement of the premises for her own use. The petitioner was originally the tenant under the father of the landlord B. Shankaraiah. The petition premises was bequeathed by the said Shankaraiah in favour of the respondent. After the death of Shankaraiah the respondent became the owner of the premises by virtue of the Will executed by her father. In the eviction petition presented by her, it was pleaded that she was residing along with her husband and children in a rented premises by paying a rent of Rs. 3,080/- per month and that she has no other immovable property other than the petition premises and, therefore, she requires the premises for her own use and occupation and for the use and occupation of her family members.
3. During the pendency of the proceedings in the Court below the petitioner-tenant filed I.A. No. 5 under Section 65 of the Indian Evidence Act read with Section 151 of the CPC pray ing that the Will be rejected because the respondent-1 and lord had not obtained a succession certificate in pursuance of the Will The said I.A. was rejected by the Court below, The petitioner challenged the said order rejecting the I.A. No. 5, in H.R.R.P. No. 564 of 1999. This Court having dismissed the said revision petition, the Court below proceeded with the eviction proceedings treating the respondent as the landlord of the petition premises and passed the impugned order. The order passed by this Court in H.R.R.P. No. 564 of 1999 having become final, the question of existence of jural relationship of landlord and tenant has become a foregone conclusion and cannot be urged again by the petitioner in the present revision.
4. I have heard the learned Counsels on both sides.
5, Mr. B. Subba Rao, learned Counsel for the petitioner, urged only one point viz., that the petitioner is not entitled to the relief without obtaining the succession certificate which is essential as she got the schedule property from her late father under a Will. In this regard he has relied on the decision in Mrs. Hem Nolini Judah v. Mrs. Isolyne Sarojbashini Bose, AIR 1962 SC 147 : 1962 Supp. (3) SCR 294 wherein the Apex Court has held that Section 213 of the Indian Succession Act of 1925 creates a bar to the establishment of any right under Will by an executor or a legatee unless probate or letters of administration of the Will have been obtained, whether that right is claimed by the person as plaintiff or defendant. The parties to the proceedings in which the Apex Court laid down the said ratio were Christians governed by the provisions of Section 213 of the Indian Succession Act, 1925 under which it is mandatory for all Christian legatees to obtain probate or letter of administration before exercising the right of ownership over the property bequeathed in their favour. But, the parties to the present proceedings are Hindus who come under one of the exceptions carved out in Section 213 of the Act of 1925. Section 213 reads:
“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 Mohammedans, 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, insofar as they relate to immovable property situate within those limits”.
In Mrs. Hem Nolini’s case, supra, the Apex Court laid down the ratio decidendi as above while interpreting Sub-section (1) of Section 213 and it had no occasion in the said case to refer to Sub-section (2) of Section 213 as the parties to the proceedings were Christians. Therefore, the said decision is of no avail to the petitioner herein as the parties in the present proceedings are governed by Sub-section (2) of Section 213 of the said Act. In Clarence Pais and Ors. v. Union of India, (DB) the Apex Court had occasion to deal with Section 213. Laying down the scheme of operation of Sub-section (2) of Section 213 of the 1925 Act, the Apex Court observed at para 6 as follows:
“The effect of Section 213(2) of the Act is that the requirement of probate or other 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 Will made by Mohammedans 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, or after the First day of January, 1927 which does not relate to any 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……… …. ….. ….. 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 Section 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 “.
(emphasis supplied)
The respondent is an Hindu and the Will made by her father is in respect of property which is situate outside the territorial limits of the ordinary civil jurisdiction of the High Courts of Judicature at Madras and Bombay and, therefore, the probate will not be required to be obtained by her in respect of a Will made in her favour. Therefore, the contention of the learned Counsel for the petitioner is devoid of merit and is liable to be rejected and it is, accordingly, rejected.
6. It was pleaded by the respondent-landlord that she herself is staying in a rented premises by paying Rs. 3,080/- per month and she having become the owner of the petition premises she intends to occupy it for her own use. There is nothing on record produced by the petitioner to disprove this case of the respondent-landlord that she is residing in a tenanted premises. The learned Counsel for the petitioner laid more emphasis in this revision on the question of maintainability of the petition by the respondent-landlord. It is his submission that without obtaining a succession certificate the respondent-tenant could not have maintained the eviction petition. This submission cannot be countenanced now, in this revision, because that issue has spent itself and is no more open for debate in the light of the order passed in H.R.R.P. No. 564 of 1999 attaining finality. Besides, the term ‘landlord’ has been defined by Section 3(e) of the Karnataka Rent Act, 1999 (‘the present Act’ for short) to mean not only the owner but also a person who for the time being is receiving or is entitled to receive the rent of the premises whether on his account or on account of any other person who would be entitled to receive the rent. The petitioner having paid the rents to the respondent after the demise of the original owner, recognising her as the landlord, it is not now open to him to contend otherwise. As the landlord of the premises, if not as the owner thereof, the respondent had and continues to have the jurisdical status to present and maintain a petition for eviction against the tenant.
7. The respondent herself stays in arented premises by paying higher rent. Her claim that she requires the petition premises for the use and occupation of herself and her family, therefore, does not brook any denial. In the said circumstances, the impugned order passed by the Court below allowing the eviction petition does not call for any interference in this revision.
8. The revision petition is, accordingly, dismissed. The petitioner is given two months’ time to quit and deliver vacant possession of the petition premises to the respondent-landlord.