SEC 213 ISA

RAVINDER NATH AGARWAL  vs. YOGENDER NATH AGARWAL

FACTS – One Shri Badri Nath Agarwal, who was ordinarily a resident of Village Bithoriya No.1, Tehsil Haldwani, District Nainital, Uttarakhand, died on 07.05.2011, at the ripe old age of 91 years, leaving behind him surviving, five sons and a daughter. They were (1) Major Ravinder Nath Agarwal, (2) Surender Nath, (3) Narender Nath, (4) Virender Nath Agarwal, (5) Lily Nath (daughter) and (6) Yogender Nath Agarwal. Out of these six children, Shri Narender Nath is now no more. He died on 06.09.2019 leaving behind his wife Smt. Ira Joshi and two sons by name Nikhil Nath and Aditya Nath.

Claiming that his father Late Badri Nath executed his last Will and Testament 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, Tehsil Haldwani, District Nainital, was bequeathed to him, the eldest son Major Ravinder Nath Agarwal got mutation effected in his favour in the revenue records, but the same became the subject matter of a writ petition filed by Lily Nath on the file of the HighCourt of Uttarakhand. Apart from filing a writ petition challenging the mutation effected in favour of her eldest brother, Lily Nath also filed a civil suit in Suit No.57 of 2011 on the file of Civil Judge, Senior Division, Nainital seeking a decree of permanent injunction. As a counter blast, Major Ravinder Nath, who claims to be the legatee under the Will and who got mutation effected in his favour in respect of one property, also filed civil suit in Suit No.72 of 2011 on the file of the Civil Judge, Senior Division seeking a decree of permanent injunction.

Thereafter the last son Shri Yogender Nath, filed a suit in C.S No.2745 of 2012 on the file of High Court of Delhi, for a partition of all the properties left behind by Shri Badri Nath. The suit was filed in September­2012. But in the year 2016, presumably after the filing of the written statements, the said suit was transferred to the file of the Additional District Judge, Saket Court, New Delhi and re- numbered as C.S No.126 of 2016.

Immediately thereafter, Major Ravinder Nath Agarwal filed the first of these transfer petitions namely T.P (C) No. 970 of 2016, seeking the transfer of the partition suit pending on the file of theAdditional 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 stay of further proceedings in the partition suit.

But a few days before this Court ordered notice and granted stay, the plaintiff in the partition suit namely Sh. Yogender Nath (last son) abandoned the suit and hence the only daughter Lily Nath got herself transposed as the plaintiff, by moving an application under Order XXIII Rule 1­A. The original plaintiff Yogender Nath was transposed as defendant No.5.

On 09.10.2018, this Court passed an order in T.P (C) No. 970 of 2016, vacating the stay of further proceedings in the partition suit earlier granted on 08.07.2016. Thereafter the eldest son Major Ravinder Nath filed a petition in Testamentary Case No.01 of 2019 on the file of 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 second transfer petition namely T.P (C) No.2779 of 2019, 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.

CAUSE- Two transfer petitions, one of the year 2016, filed by the eldest son seeking a transfer of the partition suit from the District Court, Saket, New Delhi to the District Court, Nainital, Uttarakhand and another of the year 2019 filed by the plaintiff in the partition suit seeking the transfer of the testamentary case pending on the file of the High Court of Uttarakhand to the District Court at Saket, to be tried together with her partition suit.

ISSUE – Whether testamentary proceedings, being proceedings in rem, will have primacy over other proceedings and, hence, the partition suit is liable to be transferred; and that by virtue of Proviso (b) of Section 273 of the Indian Succession Act, any probate/letters of administration granted by the District Court at Saket will not have effect in other States, unless the value of the property and estate affected beyond the limits of the State does not exceed Rs.10,000/­.

ARGUMENT – Learned counsel for the petitioner that testamentary proceedings, being proceedings in rem, will have primacy over other proceedings and, hence, the partition suit is liable to be transferred; and that by virtue of Proviso (b) of Section 273 of the Indian Succession Act, any probate/ letters of administration granted by the District Court at Saket will not have effect in other States, unless the value of the property and estate affected beyond the limits of the State does not exceed Rs.10,000/­. Learned counsel appearing for the respondents contended that the testamentary proceedings were initiated deliberately in Uttarakhand after seven years of the institution of the partition suit in Delhi and that the petitioner in the first transfer petition is guilty of abuse of the process of Court. According to the petitioner, who is eldest of the siblings and who has set up a Will, the proceedings in a testamentary case are proceedings in rem and that, therefore, they will have primacy and that, irrespective of the fact that the testamentary proceedings were initiated much after the institution of the partition suit, the partition suit and not the testamentary case, is liable to be transferred.

DECISION – A cumulative reading of Sections 57, 213 and 264 would show: (i) 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(ii) 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. Therefore, what follows is that: (i) unless the testator belongs to any of the classes of persons specified in the Act; and (ii) 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. By virtue of 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, is applicable 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.Major Ravinder Nath 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 by virtue of Section 213(1), from relying upon a Will in any proceeding, without first obtaining probate/letters of administration. Therefore, the legal contention raised on behalf of the petitioner in T.P (C) No.970 of 2016 that the partition suit should follow the testamentary case, is liable to be rejected in the facts and circumstances of this case.

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