RAVINDER NATH AGARWAL versus YOGENDER NATH AGARWAL & ORS.

Citation: [2021] 3 S.C.R. 881 · Decided: 12-02-2021 · Supreme Court of India · Bench: V. RAMASUBRAMANIAN · Disposal: Disposed off

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Judgment (excerpt)

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   [2021] 3 S.C.R. 881
881
RAVINDER NATH AGARWAL
v.
YOGENDER NATH AGARWAL & ORS.
(Transfer Petition (Civil) No.970 Of 2016)
FEBRUARY 12, 2021
[V. RAMASUBRAMANIAN, J.]
Transfer Petition – Testamentary proceedings were initiated
much after the partition suit – Two transfer petitions filed seeking
transfer of partition suit from Delhi to Nainital, Uttarakhand and
of testamentary case from Uttarakhand to Delhi – Held: Petitioner
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 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 should have primacy – No
ground made out to transfer the partition suit to District Court,
Nainital – Second transfer petition seeks transfer of the testamentary
case pending in the High Court of Uttarakhand to the District Court,
Saket, Delhi – Since the Will set up by the petitioner covers properties
located both in Nainital and Delhi, both these courts have concurrent
jurisdiction – But in view of proviso (b) to s.273, letters of
administration granted by a District Court cannot have validity in
respect of a property located outside the State, if its value exceeds
Rs. 10,000/- –To resolve this, testamentary case is transferred to
the High Court of Delhi and the partition suit is transferred from
the District Court, Saket, Delhi to the High Court of Delhi – Indian
Succession Act, 1925 – ss.57-191, 217-369 .
Indian Succession Act, 1925:
ss.57, 264(2) – Held: Bar u/s.264(2) has no application to
cases, to which s.57 applies.
ss.212, 213 – Applicability of – Discussed.
ss.57, 212, 213, 264 – Held: By virtue of s.213(2)(i) r/w
s.57(a), (b), the mandatory requirement to seek probate or letters of
administration for establishing a right as executor or legatee under
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SUPREME COURT REPORTS
[2021] 3 S.C.R.
a Will, is applicable only to Wills made by a Hindu, Buddhist, Sikh
or Jain 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.
Disposing of the Transfer Petitions, the Court
HELD: 1.1 This Court did not consider or did not have an
occasion to consider in any of the decisions referred, the difference
between cases where a party is entitled to rely upon a Will in a
judicial proceeding even without getting probate/letters of
administration and cases where there is a bar for the production
of a Will in a judicial proceeding without first getting probate/
letters of administration. The primacy to be accorded to probate
proceedings would depend upon the category to which the case
belongs. [Para 23][893-G-H; 894-A]
1.2 The District Judge is conferred with the jurisdiction to
grant and revoke probates and letters of administration in all
cases within his District, under Section 264 of the Indian
Succession Act, 1925. Sub-section (2) of Section 264 imposes a
bar upon the Courts in any local area beyond the limits of the
towns of Calcutta, Madras and Bombay, from receiving
applications for probate or letters of administration, until the State
Government, by a notification in the Official Gazette, authorized
them so to do, wherever the deceased is a Hindu, Muhammadan,
Buddhist, Sikh or Jaina or an exempted person. But the bar under
Sub-section (2) has no application to cases, to which Section 57
applies. [Paras 27, 28][894-E, G-H; 895-A]
1.3 The jurisdiction conferred upon the District Judge in
Chapter IV of Part IX, is also exercisable by the High Court, by
virtue of the concurrent jurisdiction conferred under Section 300.
The bar under sub-Section (2) of Section 264 is found also in sub-
Section (2) of Section 300. Part VIII of the Act which is perhaps
the smallest among the several parts of the Act, contains two
important provisions in Sections 212 and 213. While Section 212
deals with the right to intestate’s property, Section 213 deals
with the establishment of the right as executor or legatee under
a Will. These two Rules can be stated as follows : (i) without first
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obtaining letters of administration from a Court of competent
jurisdiction, no right to any property of a person other than a
Hindu, Muhammadan, Buddhist, Sikh, Jai

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