JUDGMENT
A.M. Khanwilkar, J.
1. Rule.
2. Rule made returnable forthwith by consent.
3. As short question is involved, matter taken up for final disposal forthwith by consent.
4. This writ petition takes exception to the Judgement and order passed by the 8th Additional District Judge, Pune dated 7th March, 2002 in Civil Appeal No. 51 of 2002. The Petitioner claims to be owner of suit flat consisting of six rooms with attached W.C. and bath room in Building known as Shrikrishna Apartment situated at S. No. 557/8 final plot No. 473/30 Gultekdi, Pune. The Petitioner’s father instituted a suit for possession against Respondent being Civil Suit No. 1044 of 1986. This suit was decreed against respondent and respondent was ordered to deliver possession of the suit premises. Against that decision, Respondent unsuccessfully carried the matter in appeal and latter before this court by way of writ Petition as well as appeal before Apex Court. To put it differently, decree for possession against Respondent came to be confirmed right upto the Apex Court. During the pendency of the suit, Petitioner’s father, who had instituted the suit expired and, Petitioner was substituted as heir and legal representative of the Plaintiff and also being co-owner. Be that as it may, the Petitioner took out Execution proceedings for obtaining possession as per the decree passed by the trial court and confirmed upto the Apex Court. In the execution proceedings, Respondent took objection that the petitioner was incompetent to pursue the execution proceedings to its logical end – so long as the Petitioner has not obtained probate in respect of the Will executed by his father in his favour. However, that objection was overruled and the execution proceedings taken out by the petitioner was allowed. The Respondent carried the matter in appeal before the 8th Additional District Judge, Pune being Civil Appeal No. 51 of 2002. In appeal, District Court has accepted that argument of the Respondent relying on the decision of this court reported in 2001 (2) Mh.L.J. 945 in the case of Babasaheb Yeshwant Anandrao Patil v. Smt. Manjulabai Balwant Gaikwad. The appellate court has found that it was imperative for the Petitioner to obtain probate so as to become entitled to take execution proceedings to its logical end. This decision is subject matter of the present petition.
5. The learned counsel for the Petitioner contends that the appellate court has misdirected itself in placing reliance on the decision of Babasaheb Patil (supra). The learned counsel contends that in the present case, it is not in dispute that the suit property is situated outside the ordinary original civil jurisdiction of the High Court of Judicature at Bombay and it is also not in dispute that the Will has been executed by the Petitioner’s father in Pune which is also outside the ordinary original civil jurisdiction of the High Court of Judicature at Bombay. On this premise the learned counsel contends that in such a situation, requirement of obtaining probate is not necessary in view of the plain language of Section 213 read with section 57 of the Indian Succession Act 1925. If that argument was to be accepted then, obviously there was no other ground which has been held against the petitioner and therefore, petitioner was entitled to pursue the execution proceedings and succeed in getting back the possession of the suit property. The learned counsel has also placed reliance on the decision of our High Court in AIR (32) 1945 Nagpur 237 in the case of Ahemad s/o. Abdul Latif and another v. Ghisia Hira Teli and Anr., as also on case reported in 1979 Mh.LJ 308 in Jyoti w/o. Jagdish Singhai v. State of Maharashtra to support the above contention. The learned counsel has distinguished the decision in the case of Babasaheb Patil (supra) by contending that there is nothing to show that in that case the property or the execution of the Will was excluded by virtue of Section 213 read with Section 57 of the Act, as in the present case.
6. On the other hand, learned counsel for the Respondent has placed reliance on the decision of the Division Bench of this court in the case of Ramniklal Amnritlal Shah v. Bhupendara Impex Pvt. Ltd. and Ors in addition to the case of Babasaheb Patil (supra) to support the conclusion reached by the appellate court that in the absence of probate obtained by the petitioner, petitioner was not competent to pursue the execution proceedings to its logical end. Learned Counsel fairly submits that this is the only objection that would arise for consideration and if the Petitioner succeeds on this count, then the execution of the decree cannot be resisted on any other count.
7. Having considered the rival submissions, the only question which falls for consideration is whether it was imperative for the Petitioner to obtain probate so as to be entitled to purse execution proceedings to its logical end? This question can be answered with reference to Section 213 read with Section 57 of the Act. Section 213 reads thus:
“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 immoveable property situated within those limits.”
Section 57 reads thus :
“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 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 clause (a) and (b).
provided that marriage shall not revoke any such will or codicil.”
8. On conjoint reading of the above provisions, it would appear that only Wills specified in Clause (a) and (b) of Section 57 of the Act would require the executor or legatee to obtain probate/letters of Administration from the court of competent jurisdiction so as to pursue the right arising under the will to its logical end. This legal position is reinforced from the exposition of our High Court in Ahmed’s case (supra) as well as Jyoti’s case (supra). Therefore, the first question that needs to be considered is; whether the subject will is covered by Section 57, Clause (a) and (b) of the Act? As mentioned earlier, it is not in dispute that the suit property is situated at Pune and the will was also executed at Pune. If that is so, it is not possible to countenance the submission that Section 57(a) and (b) of the Act would apply. Understood thus, it was not necessary for the Petitioner to obtain probate so as to proceed with the execution proceedings.
9. To my mind the appellate court has misapplied the decision in Babasaheb’s case (supra) to the fact situation of the present case. As mentioned earlier, in Babasaheb’s case, there is nothing to show that the will was executed or the property referred to in the will was outside the ordinary original civil jurisdiction of the High Court of Judicature at Bombay. Similar situation obtains in the case of Ramniklal (supra). In Ramniklal’s case, the appeal before the Division Bench emanated from the suit instituted in the Bombay High Court, which presupposes that the property was situated in Bombay or the will was executed in Bombay.
10. In this view of the matter, the conclusion reached by the appellate court cannot be sustained, whereas the order passed by the Executing court will have to be restored.
11. Accordingly, petition succeeds. The impugned Judgment and order is set aside and instead the order passed by the first court is restored. No order as to costs.
12. At this stage, Mr. Kulkarni counsel for the Respondent prays that Respondent may consider of preferring an appeal before the Apex Court against the present order and, therefore, prays for time. The Petitioner not to give effect to this order for a period of four weeks from today.
All concerned to act on ordinary copy of this order duly authenticated by the Personal Secretary/Court Sheristedar.
