T.N. Singh, J.
1. Whether such an issue can be struck and decided by a Civil Court that Will "A" is the last Will of the testator and Will "B" is not?
2. According to me, that is the crucial question arising for decision in this case and that view, I had taken when I heard this matter on 31-7-1991. Finally, counsel were heard on 8-8-1991, but on his prayer being allowed in that regard, appellants' counsel Shri Mishra filed the written arguments on 18-8-1991. Those are also taken into consideration in deciding finally this appeal.
3. It be, however, noted that on 8-5-1991, an interim order was passed in this matter. Respondent's counsel, Shri N. K. Jain, gave an undertaking that money lying in deposit in Sabalgarh Post Office, whose corpus, according to plaintiffs/appellants, was of the order of Rs. 75,000/ -, shall not be withdrawn by the respondent without this Court's prior permission. Another undertaking was given that account shall be maintained of the rent realised from the suit property and that shall be filed in Court in this matter.
Those were accepted.
4. By the impugned order dated 20-7-1990, trial Court has rejected applications made by the plaintiffs/appellants under Order XXXIX, Rules 1 and 2 and Order XL, Rule 1, C.P.C. Temporary injunction was prayed in respect of realisation from tenants of rents in respect of the suit shops as also in respect of the deposit in deceased Raghuvir Das's name in Sabalgarh Post Office in Savings account. In a nutshell, the case of the plaintiffs/appellants is that deceased Raghuvir Das had executed a Will on 19-4-1979 in favour of defendant/respondent Balakdas which, he later revoked by the Will executed on 30-9-1988 in their favour. Accordingly, they became owners of the entire suit property of deceased Raghuvir Das and the defendant/ respondent having no right, title or interest therein, cannot continue to enjoy the same in an unauthorised manner to their detriment, on the basis of an invalid Will. According to them, the said defendant was an outsider to the family of deceased Raghuvir Das, who was their uncle and he had got the property also by Will in 1953 from his brother Sewadas who, in turn, had got it also under a Will in 1940 from his uncle Bankatdas who was plaintiffs' father's uncle. In my view, despite the cumbersome description of relationship, claimed by the plaintiffs with deceased Raghuvir Das, the plain and simple question is which of the two Wills executed by deceased Raghuvir Dayal is genuine and valid. Plaintiffs' case is not that deceased Raghuvir Das had no power of disposition of the property or that he had no title to the property. On the other hand, they claimed his property by way not of interstate succession, but by testamentary succession. Because, Balakdas had admittedly renounced the world; and he had acquired the property after he became "Mahatma".
5. Evidently, the moot question, according to me, is if the trial Court was justified in reaching the tentative conclusion about validity and genuineness of will dated 30-9-1988. Indeed, on the basis of that finding, the trial Court took the view that plaintiffs failed to establish their prima facie case to go to trial, while such an exercise, the provisions of Order VII, Rule 11(d), C.P.C. interdicted. It was apparently, in my view, a case for the plaint to be returned because on the statement made by the plaintiffs in the plaint, the jurisdiction of the Civil Court to decide the contest between two Wills of the same testator in respect of the same property was impliedly barred. That question, in my view, could be decided validly and legitimately only by the special forum of the Probate Court under the Indian Succession Act, 1925, for short, the 'Act'.
6. Appellants' counsel, Shri Mishra, protested that in this appeal, the question above referred cannot be, and need not be, examined. He relied on Khushro v. N. A. Guzder, AIR 1970 SC 1468, but I have failed to comprehend counsel's demur. Trial Court has already held against the appellants and found their prima facie case not proved because Will dated 30-9-1988 on which they based their claim was found executed under suspicious circumstances inasmuch as in the intervening night of 30-9-1988 and 1-10-1988 the testator admittedly died in hospital into which he was admitted by the plaintiff. If that finding is allowed to stand, the party who will suffer is not the defendant/respondent, but the plaintiffs/appellants because I have found no material at all and no ground indeed to reverse that finding of the trial Court. In any case, I have also not found anything in the decision cited as would lend any substance to his contention.
7. In Khushro (supra), the question decided was that the High Court cannot in revision try other issues arising in the case even if the parties concede when the High Court did not purport to withdraw the suit itself for trial. That is not the position here. The issue material for decision of this appeal is indeed, whether the plaintiff/ appellants did prove their prima facie case and their case was based on the Will dated 30-10-1984. Reliance of Shri N. K. Jain, however, on Rukmani Devi, AIR 1984 SC 1866, I have found most appropriate to repel Shri Mishra's contention. In that case, the probate was granted and appellants did not contest the proceedings taken in that regard; they were prevented in Apex Court from questioning the validity of the Will by collateral attack holding that the decision of the Probate Court is a judgment in rem and that the Probate Court is "charged" with a "solemn duty" in that regard. The probate granted by competent Court was conclusive of the validity of the Will; no evidence can be admitted to impeach it except in the proceedings taken for revoking the probate. .
8. Although Shri Mishra contended that the plaintiffs were not required to go to the probate Court as they were Hindus, I found misconceived his implicit reliance on Section 213(2) in support of that contention. One must, in my view, bear in mind the basic fact that the Act is a complete Code of Law of testamentary succession concerning even persons professing the Hindu religion except to the extent modified by the Hindu Succession Act, 1956. In this connection, I may refer immediately to the short title of the Act manifesting its object clearly, "to consolidate the law applicable to intestate and testamentary succession". It cannot be disputed that to some persons who are either Christian or Parsi by faith, the Act also contains provision of intestate succession. Part VI of the Act is captioned "Testamentary Succession", while Part IX bears the caption, "Probate, Letters of Administration etc." Section 57 of Part VI contemplates that the provisions of the Part would apply also to a person who is a Hindu or Buddhist, Sikh or Jaina, but subject to reservations specified therein and in Schedule III of the Act; Clause 3 of the "Restrictions" specified in Schedule III in dealing with the case of a Hindu contemplates that the provisions made in Part VI shall not "affect any law of adoption or intestate succession". Section 58(2) clearly contemplates, "the provisions of this Part shall constitute the law of India applicable to all cases of testamentary succession" subject the provisions of Sub-section (1) and of any other law for the time being in force. It may be noted also that the Act is successor of Hindu Wills Act, 1870 as well as of Probate and Administration Acts of 1881, 1889, 1890 and 1903, which stood repealed on its enactment.
9. Of Part VIII, Section 211(2) prohibits vesting in an executor or administrator of any property of the deceased person (including a Hindu) "which would otherwise have passed by survivorship to some other person". According to Section 212(2), letters of administration are not to be taken out in the case of the intestacy of a Hindu. Relevant portion of Section 213 deserves to be extracted in exten-so:--
"213. 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 classes specified in clauses (a) and (b) of Section 57, and ..............."
10. Of Part IX, Section 217 with the marginal heading "application of part" provides, "all grants of probate and letters of administration with the Will annexed and the administration of the assets of the deceased in cases of intestate succession shall be made or carried out, as the case may be, in accordance with the provisions of this part." Special rule for grant of administration in the case of intestate succession of a Hindu is provided in Section 218. Few provisions of crucial importance, I extract, some indeed in extenso:--
"227. Effect of probate.-- Probate of a Will when granted establishes the Will from the death of the testator, and renders valid all intermediate acts of the executor as such".
"264. Jurisdiction of District Judge in granting and revoking probates, etc.-- (1) The District Judge shall have jurisdiction in granting and revoking probates and letters of administration in all cases within its district."
"266. District Judge's powers as to grant of probate and letters of administration.-- The District Judge shall have the like powers and authority in relation to the granting of probate and letters of administration, and all matters connected therewith, as are by law vested in him in relation to any civil suit or proceeding pending in his Court."
"268. Proceedings of District Judge's Court in relation to probate and administration.-- The proceedings of the Court of the District Judge in relation to the granting of probate and letters of administration shall, save as hereinafter otherwise provided, be regulated, so far as the circumstances of the case permit, by the Code of Civil Procedure 1908."
According to Section 267, "probate or letters of administration shall have effect over all the property and estate, movable or immovable, of the deceased, throughout the State in which the same is or are granted; and shall be conclusive as to the representative title......".
Section 289 provides that probate shall be granted in the form set forth in Schedule VI; the statutory form contemplates that the "last Will" of the deceased in respect to which probate is granted is annexed to the form and the District Judge certifies the same to be "proved and registered before me".
11. To decide the controversy, due attention is to be paid, in my view, to the interaction and inter-relation mainly, of Sections 213 and 227. The combined effect of Subsections (1) and (2) of Section 213 read along with Section 57 is only that in respect of such Wills as are executed by a Hindu outside the specified territories of Bombay, Calcutta and Madras and in respect of properties situate outside those territories, probating the Will is obligatory and not compulsory. That legal position is recognised in the decisions which Shri Jain cited. See Madan Gopal, 1986 JLJ 806; Shobha Kshirsagar, 1988 MPLJ 28 : AIR 1987 MP 145. However, in Ram Dutta v. Krishna Dutta, 1987 JLJ 198, cited by Shri Jain, a learned single Judge of this Court has held further that Section 213(1) creates a bar to the establishment of any right under Will by an executor or legatee unless probate or letter of administration of Will had been obtained. That was not a case of a Will executed in one of the specified territories, namely, Calcutta and as such, despite reliance of the learned Judge on Apex Court's decision in Hem Nalini, AIR 1962 SC 1471, the view expressed, as is contended before me, may not be correct and indeed, it appears to me that , the law has been widely stated, ignoring and overlooking the factual matrix.
12. Pertaining to the challenge Offered to Ram Dutt's view, above noted, Shri Mishra cited a large number of decisions. Some are wide off the mark and are not relevant to the controversy, but others are and those may be referred to briefly. Obviously, I must deal firstly with this Court's decisions. In Jairam Chimnaji, AIR 1952 Nag 242, there was no contest between two Wills and the suit for recovery of immovable property bequeathed under the Will without probating the Will relied on was held maintainable. The other D. B. decision in Zimali, AIR 1949 Nag 154 held only that there is no period of limitation for grant of probate as indeed that question only was raised and decided therein. That view was also taken in Shobha Kshirsagar (supra) and the decision obviously is of no immediate relevancy to the controversy However, the short-noted decision in, Lachchman Singh (1966 MPLJ SN 8) held too like Jayram's case that probating a Will was not a condition precedent to the establishment of a right where the Will has been made by a person who is a resident of Madhya Pradesh with respect to a property situate in Madhya Pradesh. In that case also, the holding was based on the combined effect of Sections 213(2)(i) and 57 of the Act. The same view is expressed in other decisions which Shri Mishra has cited, but the common factor in all the cases is that there was no contest between two rival Wills in those cases. See Bharat Kumar, 1977 (2) MPWN 347; Ramcharanlal 1978 (2) MPWN 86; Chandmal Jain, 1982 MPWN 297; Marwa Saw Mills, 1984 MPLJ SN (6). The decision in Vidhyaram's case 1981 JLJ 203 was a decision in appeal under Section 299 of the Act and obviously, has no, relevance to the controversy. This Court has held therein that though obtaining probate in terms of Section 213(2) read with Section 57 was obligatory, the prayer cannot be refused when the Will was duly proved as testator's "last Will
13. The decisions of other Courts cited do not, I find, take a different view and indeed, law does not appear to have been stated differently. In Bhaiya Ji, AIR 1978 All 268 also, there was no contest between two Wills and the only question raised and decided was that obtaining probate was not compulsory in case of a Will made by a Hindu regarding immovable property situate in other territories than those of Bengal, Bombay and Madras. On similar facts (not of contest between rival Wills), law was similarly stated in Mst. Jadav, AIR 1961 Raj 40. The same position obtains in Beharilal, AIR 1968 Punj 108; that also a case not of two rival Wills and the suit was held maintainable even in the absence of a probate. The case of Balaram, AIR 1973 Orissa 112 was also one of a civil suit based on Will, but not a case of contest of two rival Wills.
14. When there is a contest between two rival Wills, in my view, Section 227 has immediate relevance and direct application. Evidently, the question to which the Court is required to address is not one of right of an executor or legatee to be established on the basis of a Will under which that right is claimed, but the question precisely is if that Will is the "last Will" of the testator. According to Section 227, a probate "establishes the Will from the death of the testator". That implies evidently that the Will of the testator must be his "last Will" so that grant of probate "renders valid all intermediate acts of the executor as such". That position is substantiated further by Section 70 envisaging that by executing another Will or codicial subsequently ("by some writing declaring an intention"), the earlier Will may be revoked. It has been noted earlier that the form of probate prescribed in Schedule VI, as per Section 289, also refers to the "last Will" of the testator and it is contemplated further that a copy of that shall be annexed to the probate while certifying that the Will had been duly "proved and registered". Section 294 provides for registration by saddling a duty on the District Judge that he "shall file and preserve all original Wills, of which probate or letters of administration with the Will annexed may be granted by him."
15. Evidently, the question arises, if Civil Court can certify in the case of contest between two Wills that one of those was the "last Will" of the testator. In that regard, reference may be made to some other provisions, but to the legal position also, as noted above, that the Act was Special Law of testamentary succession and it created special forum of probate Court to deal with all matters concerning therewith. How a valid Will is made and how that is revoked and proved are some matters which form part of the Special Law. See, Sections 59, 61, 63, 70 et. seq. Section 217 of Part IX, noted above, and also other provisions of said Part IX clearly manifests Legislature's intention that the special forum and special procedure prescribed under Part IX are applicable to "all grants of probate and letters of administration with the Will annexed". Section 264(1) of the same part prescribes the special forum to be that of the "District Judge". He is invested by Section 266 with "powers and authority in relation to the granting of probate........ and all matters connected therewith......".
Under Section 263, power is conferred on him in specific terms to revoke or annual for just cause a probate already granted. Conclusiveness of a probate, as noted earlier, is contemplated under Section 273. A conjoint reading of these provisions indicate clearly that exclusive jurisdiction is vested in the special forum created under the Act, which is a Special Law, for grant of probate "and for matters connected therewith". Obviously, that form must have exclusive jurisdiction to decide, in the case of contest between two Wills, if and which one of the two of them, had been "duly proved" or "established" as the "last Will" of the testator because the question of "revocation", (which may be express or implied) only it can decide under the Act.
16. It is necessary to bear in mind the position settled in law that title and authority of the legatee or the executor is derived from the Will. See, in this connection, Meyappa Chetty, AIR 1916 PC 202; Venkata Su-bamma, AIR 1932 PC 92. Right of a person to dispose of his property by Will being contemplated under Section 59, vesting thereof results obviously directly under the Will in the manner stated expressing testator's intention in that behalf. That position is also recognised in Section 104 contemplating, "the legatee has a vested interest in it from the day of the death of the testator". That enables the testator to pass to the legatee a vested and transmittable interest on his death even though possession and enjoyment of the property may be postponed by him. See Bhagabati, ILR (1911) 38 Cal 468, decided by Privy Council. In an earlier decision, the Privy Council held in Sahib Mirza, ILR (1892) XIX Cal 444, that "clear and satisfactory" evidence must be forthcoming when a plea is raised that the earlier Will had been revoked because the proof will be required of the fact that "the two cannot stand together". Section 213(1) does not evidently relate to any right of vesting which is automatic under the Will. It relates to exercise of any right consequent upon such vesting. As the purpose of a probate is to prove the "last Will", the probated Will shall prevail against unprobated to enforce legal and valid vesting under the "last Will" proved as validly executed. By probate, vesting taking place under an unprobated Will may become inoperative as power is conferred expressly on the Probate Court to "revoke" under Section 263, and "recall" under Section 216, the probate granted. The question of divesting and of consequent vesting in proper person may arise in such cases and that Will depend on Probate Court's decision. Care, as such, has to be taken against overlapping and conflict of jurisdiction of a Civil Court and a Probate Court. For that, it is necessary to bear in mind the distinction between the right contemplated under Section 213(1), enforceable in a Civil Court and the right contemplated under Section 227 which can be enforced only in the Probate Court. The fact that Section 213 deals disperately with two classes of Wills can have no bearing on this position.
17. Reference may also be made to some other cases which shed light on the exclusive and conclusiveness of Probate Court's jurisdiction. In Chinnasami v. Hariharabadra (ILR (1893) XVI Mad 380), the Court held that the decision given in respect to the Will in question that the same was forged in a proceeding under Guardians and Wards Act, did not operate res judicata in an application for probate of the Will. In Mahomed Ranu Mean (AIR 1919 Cal 113) it was held that a suit for a declaration as to the effect of the terms of a Will of which probate has been granted is maintainable in the Civil Courts and at the same time, it was held that it is for the Probate Court to determine whether a Will has been duly executed. The Court also held, a Civil Court cannot question the validity of the Will of which probate has been granted though effect may be given to its provisions.
18. For all the reasons aforesaid, I have no hesitation to hold that in a Civil Court in a suit instituted by any party, claiming right, title and interest in any property on the basis of a Will, no issue can be struck to decide if that Will was the "last Will" and was a valid Will and the other Will which it purported to revoke had been duly and validly revoked by the Will relied on by the plaintiff. The jurisdiction of the Civil Court, as per Section 9, C.P.C., is impliedly barred not only to decide such an issue, but to take cognizance of such a suit in which the plaintiff himself raises such an issue. Indeed, Order VII, Rule 11(d), C.P.C. mandates that the plaint is to be rejected, "where the suit appears from the statement in the plaint, to be barred by any law". Delhi High Court's Full Bench, in T. K. Jain's case, AIR 1971 Delhi 86, speaking through H. R. Khanna, C. J., as his Lordship then was, held that suit for damages for defamatory statements in Parliament was barred by Section 105(2) of the Constitution and as such, the appeal was liable to be rejected in limine.
19. There was, therefore, no scope for the trial Court to express any opinion on plaintiffs' claim based on the Will dated 30-9-1988, executed by deceased Raghuvir Das in their favour, that the same was not genuine; and for that matter, was not the "last Will" of the said Raghuvir Das. Not only that decision cannot operate as res judicata in any other proceedings, it shall be open to the plaintiffs to apply for probate of that Will and to take a conclusive finding of the Probate Court as to the legality, validity and genuineness of that Will. Till they do so, they cannot have any locus standi to interfere with the possession of the suit property by defendant/respondent Balakdas who, according to their own case, is possessing the same on the basis of the Will executed in his favour on 19-4-1979 by the same Raghivir Das. Because, as already pointed out above, Balakdas is not required to take out probate for the purpose of vesting in him of the property of the deceased. Until such time as it is not proved that the Will dated 19-4-1979 was not the "last Will" of deceased Raghivir Das, the property of the deceased shall be deemed to have been vested in him on and from his death which took place on 30-9-1988.
20. In the circumstances aforesaid, the appeal is allowed, but with a different result because the relief prayed cannot be granted to the appellants. Although the impugned order is set aside, a direction is made under Order VII, Rule 10(Ex. PI) to the trial Court to return the plaint to the plaintiffs and they are given one month's time to approach the Probate Court, if so advised and desired. Because it shall be open to them to pray for and obtain orders of temporary injunction or other appropriate orders from the Probate Court under Section 268 of the Act, I direct that for a period of one month from today, the interim order passed in this appeal on 8-5-1991 shall continue to be in force. Parties shall bear in this Court their own costs.