Probate is not required for the Will made in Delhi; SC.

Supreme Court of India

Justice Hemant Gupta and Justice L Nageswara Rao

The issue falling for consideration before the Supreme Court was whether the bar under Section 213 of the Indian Succession Act is applicable to the Wills made in Delhi in respect of the property situated in Delhi? In other words, the SC {Kanta Yadav versus Om Prakash Yadav and others} was concerned with the issue whether the probate of Will is compulsory required in Delhi for claiming the right under the Will?

Answering in negative and affirming the judgment of the DB of High Court of Delhi, the SC holds that the Will is not required to be probated in respect of Delhi for claiming right under the Will executed in Delhi, for the property situated in Delhi. The probate is compulsory required for the Will executed in Calcutta, Madras and Bombay or if the property is situated in any of the said three areas.

The SC hold that:

 "12. The statutory provisions are clear that the Act is applicable to Wills and codicils made by any Hindu, Buddhist, Sikh or Jain, who were subject to the jurisdiction of the Lieutenant-Governor of Bengal or within the local limits of the ordinary original civil jurisdiction of the High Courts of Madras or Bombay - {clause (a) of Section 57 of the Act}. Secondly, it is applicable to all Wills and codicils made outside those territories and limits so far as relates to immoveable property within the territories aforementioned - Clause (b) of Section 57. The clause (c) of Section 57 of the Act relates to the Wills and codicils made by any Hindu, Buddhist, Sikh or Jain on or after the first day of January, 1927, to which provisions are not applied by clauses (a) and (b). However, sub-section (2) of Section 213 of the Act applies only to Wills made by Hindu, Buddhist, Sikh or Jain where such Wills are of the classes specified in clauses (a) or (b) of Section 57. Thus, clause (c) is not applicable in view of Section 213(2) of the Act. 

13. In view thereof, the Wills and codicils in respect of the persons who are subject to the Lieutenant-Governor of Bengal or who are within the local limits of ordinary original civil jurisdiction of High Court of Madras or Bombay and in respect of the immoveable properties situated in the above three areas. Such is the view taken in the number of judgments referred to above in the States of Punjab and Haryana as well as in Delhi as also by this Court in Clarence Pais."

The appeal was dismissed by the SC, upholding the judgment of the High Court (DB) by which it was held that the suit is maintainable, and not hit by Sec 213 of the Act under O7R11 CPC, as no probate is required in Delhi.