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Latest news March 19, 2019 557

Hon'ble Supreme Court of India has held that probate of Will is not mandatory in Delhi. It was held that a person has a right to set up a Will even in collateral proceedings and there is no need of obtaining probate thereof:





Case Title: Rajan Suri and Anr. v. The State and Anr.



Citation: AIR 2006 Delhi, 148b



Relevant poriton of Judgement is as under:-





"31. It is thus apparent that no right as executor can be established in any Court unless probate or letters of administration have been obtained of the Will in view of the provisions of Section 213 of the said Act. However, the said Section 213 would have no applicability in Delhi and it is not necessary to obtain probate of a Will in Delhi before any claim is based on that Will. A person has a right to set up a Will even in collateral proceedings and there is no need of obtaining probate thereof. In this behalf, reference may be made to the judgment in Behari Lal Ram Charan v. Karam Chand Sahni, AIR 1968 Punjab 108 which has been followed by this Court in Sardar Prithipal Singh Sabharwal v. Jagjit Singh Sabharwal 1996 III AD (Delhi) 281. It was observed in Behari Lal Ram Charan case (supra) as under :



From a bare perusal of these two sections it is apparent that the objection of defendant No. 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 purpose. therefore, where both the person and property of any Hindu, Budhist, Sikh or Jaina are outside the territories mentioned above, the rigour of Section 213, sub-section (1) is not attracted.



32. A similar view was also taken by the learned Single Judge in Murlidhar Dua and Ors. v. Shashi Mohan, and Santosh Kakkar and Ors. v. Ram Prasad and Ors., MANU/DE/0769/1998 : 71 (1998) DLT 147. It was held that the provisions contained in Section 213 of the said Act requiring probate do not apply to Wills made outside Bengal and the local limits of ordinary original jurisdiction of High Courts of Madras and Bombay except where such Wills relate to property situated in territories of Bengal of within the aforesaid local limits. In a recent judgment of the learned Single Judge of this Court in Mrs. Winifred Nora Theophilus v. Mrs. Lila Deane and Ors.,. It was observed in para 10 as under :



10. On interpretation of Section 213 read with Section 57(a) and (b), the Courts have opined that where the Willis 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 Court 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 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.



Chetan Dayal vs. Aruna Malhotra and Ors. (14.08.2012 - DELHC) : MANU/DE/3893/2012


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