• Stamp duty payable on probating a will deed

My father had by regd will deed devolved 3 floors one  on each of  2 brothers and me being divorced daughter living with him and there are other 3 married sisters who have no objection hence property mutated in municipal records. if we go for probate of will, does and what  stamp duty or other charges are leviable on each of us devolves. Can we go for relinquishment deed in alternative as title deed  with out payment of stamp duty . Please advise urgently.  Veena jain r/o D-Nirman Vihar Delhi-110092
Asked 2 years ago in Property Law from Delhi, Delhi
1) for probate of will you have to pay court fees and not stamp duty . 

2) In Mahrashtra maximum court fees is Rs 75000 for probate . 

3) you will have to check court fees act for delhi as regards court fees payable  on probate 

4) in addition you need to pay legal fees . 

5) generally for probate wherein will is not contested it would take maximum 6 months . 

6) probate of will is not mandatory in Delhi . 

7) in your case sisters can execute Deed of Relinquishment in your favour . have it duly stamped and registered 

8) stamp duty is nominal for deed of Relinquishment made in favour of family members
Ajay Sethi
Advocate, Mumbai
23389 Answers
1229 Consultations
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Court fee must be paid for probating will.The court may impose a percentage of assets as a fee to issue a probate. In Maharashtra, for example, a court fee of `25 is payable for assets less than `50,000; 4% for assets between `50,000-2 lakh, and 7.5% for assets over `2 lakh. There is a ceiling of `75,000.
Jeshma Mohandas KP
Advocate, Kozhikode
567 Answers
1 Consultations
3.5 on 5.0
for probate of will you have to pay court fees and is payable on the value of the assets
Rajeev Bari
Advocate, New Delhi
1506 Answers
92 Consultations
3.5 on 5.0
1. If you get the said Will probated by the Court of Law without being contested by the other sisters even after getting the notice for hearing of the probate case, then you need not go for any relinquishment deed to be executed by the said sisters,

2. Getting he will probated is the best way to get the property in your name which may be disposed of with in  6 to 8 months.

3. In case of probate, only Court fee is required, not stamp duty.
Krishna Kishore Ganguly
Advocate, Kolkata
12143 Answers
233 Consultations
5.0 on 5.0
Best course is to apply for mutation of property on the basis of will by submitting NOC from non beneficiaries. There is no requirement of probate of Will In Delhi. If however you apprehend any challenge to the will in futureyou can go for probate. The court fee ìs payble as per value of the property.
H. S. Thukral
Advocate, New Delhi
520 Answers
125 Consultations
5.0 on 5.0
In some states probate of WILL is not necessary. Please check up the position in Delhi. You need not pay stamp duty for probate of WILL and only the court fee have to be paid
Shashidhar S. Sastry
Advocate, Bangalore
1242 Answers
59 Consultations
5.0 on 5.0
1. The court fees to be paid for getting probate will be calculated depending on the market value of the property. 

2. A will was made by your father during his life time in respect of the property and the same was thereafter mutated. The property will now vest strictly according to the will. So there is no legal requirement of getting a relinquishment deed unless there is something in the will which mandates a relinquishment deed before the transfer of property is complete to you and your 2 brothers. 

3. Although probating the will is not necessary, yet applying for probate will be prudent in order to obviate any risk of a future challenge to the will by any of your siblings. Probate of a will once granted will foreclose the right of your siblings to lay a future challenge to the will.
Ashish Davessar
Advocate, Jaipur
18262 Answers
450 Consultations
5.0 on 5.0
In Delhi though probate is not necessary yet in order to avoid any problems in future,it would be better if you apply for probate of the Will.Since your non-beneficiaries have agreed to give their NOC,the case would not take longer being uncontested.So far court fee/stamp duty is concerned,it is stamp duty of four percent of the value of property payable on grant of probate.However, for filing probate case,nominal court fee is required to be paid.
S.P. Srivastava
Advocate, New Delhi
703 Answers
13 Consultations
4.8 on 5.0
Hello,
You need to pay court fee in order to get the Will probated.

In a Delhi High Court judgement in 2011 it was decreed that in the Union Territory of Delhi probate of Will is not mandatory.Nevertheless it is advisable that you get the will probated so that you can stay clear of any future trouble from the married sisters and totally secure your position as the will once probated any right prtaining to the property is at a logical conclusion.Once this is accomplished you do not require relinquishment from the part of the sisters as well.
S J Mathew
Advocate, Mumbai
1954 Answers
66 Consultations
5.0 on 5.0
Hi,
 Probate is better than release deed, though it i s  not mandatory in Delhi, the court fee on probate will be much lesser than the stamp duty and registration charges on release deed  up to 1.25 lakk- 2.5%,   up to 10 lakhs 3.5%, and above 10 lakhs 4% maximum cap is 50,000/
Thresiamma G. Mathew
Advocate, Mumbai
1316 Answers
85 Consultations
5.0 on 5.0
I agree with all the above experts.  The above comments were given by the experts assuming that to be of self acquired property of the Father.

But if it is ancestral property, the position will be different. The other three married sisters will have right in the property and their late father will have right to the extent of his share only and not more than that.  Even if he bequeaths total property, only an extent of your later father will be bequeathed by the will and rest of the property will fall upon all the legal heirs equally.
Ravinder Pasula
Advocate, Hyderabad
316 Answers
68 Consultations
4.9 on 5.0
you dont need citations . check the court fee Act of Delhi regarding court fees payable for application of probate . for stamp duty on release deed check the stamp Act  of Delhi .
Ajay Sethi
Advocate, Mumbai
23389 Answers
1229 Consultations
5.0 on 5.0
It is well settled that no probate is required in the State of Delhi. In a recent authority reported in Rajan Suri and Anr. v. State and Anr. AIR 2006 Delhi 148, 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. The relevant paras are reproduced as follows:

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 v. Shashi Mohan (1997) 68 DLT 284 and Santosh Kakkar v. Ram Prasad (1998) 71 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 or within the aforesaid local limits.
Ajay Sethi
Advocate, Mumbai
23389 Answers
1229 Consultations
5.0 on 5.0
Here is a decision giving by bombay high court regarding the need for not probating the will

Bombay High Court
Prabhakar S/O Chinappa Chavan vs State Of Maharashtra on 29 March, 2004
Equivalent citations: 2004 (4) MhLj 886
Author: B Gavai
Bench: B Gavai
JUDGMENT

B.R. Gavai, J.

1. The present petition impugns the order passed by the Sub-Divisional Officer, Yavatmal dated 30-4-2002 in Revenue Case No. 2/LND-32/98-99 Wadgaon, later on changed to Revenue Case No. 1/LND-26/2001-02. The facts in brief giving rise to the filing of the present petition are as under:-

2. That the field Gut No. 78/2 situated at Mouza Wadgaon, District Yavatmal admeasuring area of 1 Hectare 27 Ares was allotted to one Shri Tukaram L. Shelke under the provisions of Section 27 of the Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961 (hereinafter referred to as "the Ceiling Act"). That according to the petitioner, said Tukaram Shelke cultivated the said lands and acquired the status of occupants Class-I. It is the case of the petitioner that said Shri Tukaram was maternal uncle of the petitioner and, therefore, on 16-1-1990, said Shri Tukaram by a registered Will bequeathed the aforesaid land in favour of the petitioner. Said Shri Tukaram died on 29-12-1998. The Sub-Divisional Officer, Yavatmal has passed order on 26-7-2001, thereby forfeiting the aforesaid land to the Government, on the ground that prior permission of the Collector under Section 29(3) of the Ceiling Act was not obtained, for transfer by Will by the allottee, in favour of the petitioner.

3. Being aggrieved by the order passed by the learned S.D.O. dated 26-7-2001, the petitioner herein preferred an appeal before the learned Maharashtra Revenue Tribunal, being Appeal No. ALC.A- 17/01. The learned Maharashtra Revenue Tribunal by order dated 23-1-2002, remanded the matter to the Sub-Divisional Officer for fresh enquiry. The learned M. R. T. also directed the petitioner to obtain the heirship certificate from the Competent Court, within a period of six months, from the date of the order, failing which it was to be presumed that the claim of the petitioner of being legal heir was not correct. In pursuance of the said order, the proceedings have been remanded to the learned Sub-Divisional Officer, Yavatmal, before whom the petitioner made an application for fixing the date for evidence. The petitioner in the said application, submitted that he wants to adduce oral and documentary evidence in support of his submission. However, the learned S. D. O., vide his order dated 30-4-2002 rejected the application at the stage of presentation, as the directions given by the learned M. R. T. were not complied with. Being aggrieved by the said order, the petitioner approaches this Court by way of present petition.

4. Shri M. G. Bhangde, the learned Counsel for petitioner, contended that the provisions of

Section 29(3) of the said Act, were not applicable to the facts of the present case, inasmuch as the transfer contemplated under Section 29 of the Ceiling Act, does not contemplate transfer by Will. In support of his contention, he has relied on the judgment of this Court in the case of Vimalabai Govind Juverkar vs. State of Maharashtra and others reported in 1976 Mh.LJ. 358. Shri Bhangde further submitted that in view of the provisions of Section 213 read with Section 57 of Indian Succession Act, 1925 (hereinafter referred to as 'the Succession Act'), when a right as executor or legatee is to be established in respect of an immovable property, it was not necessary to obtain a probate of the Will under which the right is claimed. In view of this submission, he relied on the judgment of this Court in the case of Jyoti w/o Jagdish Singhai vs. State of Maharashtra reported in 1979 Mh.L.J. 308.

5. On the contrary, Shri D. B. Patel, the learned A.G.P. appearing for respondent State, submitted that the Sub Divisional Officer was not a competent Court to decide regarding the validity of the Will and that the exclusive jurisdiction to decide the same lies with the Civil Court. He, therefore, submits that the learned M. R. T. has rightly directed the petitioner to obtain the heirship certificate and has further directed that if the petitioner fails to obtain the same within a period of six months, it shall be held that the claim of the petitioner is no good.

6. In view of the rival submissions made on behalf of the parties, it will be necessary to refer to some of the provisions of the Ceiling Act and the Succession Act. Section 29 of the Ceiling Act reads thus:-

"Section 29. (1) Without the previous sanction of the Collector, no land granted under Section 27 or granted to a joint farming society under Section 28 shall be -

(a) transferred, whether by way of sale (including sale in execution of a decree of a Civil Court or of an award or order of any competent authority) or by way of gift, mortgage, exchange, lease or otherwise; or

(b) divided whether by partition or otherwise, and whether by a decree or order of a Civil Court or any other competent authority,

such sanction shall not be given otherwise than in such circumstances, and on such conditions including condition regarding payment of premium or nazarana to the State Government, as may be prescribed;

Provided that, no such sanction shall be necessary where land is to be leased by a serving member of the armed forces or where the land is to be mortgaged as provided in Sub-section (4) of Section 36 of the Code for raising a loan for effecting any improvement of such land.

(2) If sanction is given by the Collector to any transfer or division under Sub-section (1) subsequent transfer or division of land shall also be subject to the provisions of Sub-section (1).

(3) Any transfer or division of land, any acquisition thereof, in contravention of

Sub-section (1) or Sub-section (2) shall be invalid; and as a penalty therefor, any right, title and interest of the transferor and transferee in or in relation to such land shall, after giving him an opportunity to show cause, be forfeited by the Collector and shall without further assurance vest in the State Government."

This Court in the aforesaid case of Vimlabai vs. State of Maharashtra, cited supra, after considering the judgments on the point, has held that the transfers which are by act of parties made inter vivos or a result of a decree or an order of the Court, Tribunal or Authority, are alone covered by the said term as defined in Explanation (2) of Section 8 of the Ceiling Act. This Court has further held that it will not include the testamentary dispositions of the property not made inter vivos. Thus, this Court has taken a view that a testamentary disposition by Will is not covered by the word 'transfer' as per the provisions of Section 5 of the Transfer of Property Act. This Court has further while dealing with the certain provisions of the Ceiling Act has in unequivocal terms held that the transfer under the Ceiling Act would not include the testamentary disposition of the property not made inter vivos. In that view of the matter, insofar as the findings of the learned S. D. O. that the transfer is bad in law in view of provisions of Section 29(3) of the said Act is not sustainable in law.

7. The next question that arises is whether it is necessary to obtain a probate, so as to claim right as executor or legatee for the lands in question.

8. It would be appropriate to refer to certain provisions of the Succession Act. The relevant portion of Section 213 reads as under:-

"S. 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 the classes specified in Clauses (a) and (b) of Section 57; and

(ii) ......................................."

Section 57 reads as under :-

"Section 57. Application of certain provisions of Part to be a class of wills made by Hindus, etc. :-

The provisions of this Part which are set out in Schedule III shall, subject to the restrictions and modifications specified therein, apply -

(a) to all Wills and codicils made by any Hindu, Buddhist, Sikh or Jaina on or after the first day of September, 1870, within the territories which at the said date were subject to the Lieutenant-Governor of Bengal or within the local limits of the ordinary original civil jurisdiction of the High Courts of Judicature at Madras and Bombay; and

(b) to all such Wills and codicils made outside those territories and limits so far as relates to immovable property situate within those territories or limits and

(c) to all Wills and codicils made by any Hindu, Buddhist, Sikh or Jaina on or after the first day of January, 1927, to which those provisions are not applied by Clauses (a) and (b):

Provided that marriage shall not revoke any such will or codicil."

9. In the case of Jyoti w/o Jagdish Singhai (cited supra) one Padmabai had asked for reference under

Section 18 of the Land Acquisition Act and the matter was referred to the Civil Court. During the pendency of the reference, said Padmabai made a Will on 11-4-1974 under which she had bequeathed some immovable properties belonging to her to some persons other than the applicant in the said writ petition. However, by residuary clause in the Will she bequeathed all her movable and immovable properties belonging to her to the applicant in the said writ petition. During the pendency of the proceedings, Padmabai expired on 19-6-1974. The applicant Jyoti by her application applied for her name to be brought on record in the place of Padmabai. In the said application, she had based her claim on the strength of the said Will. An objection was raised that the right to claim compensation could not be considered in the absence of probate or letter of administration from the competent Court. The learned District Judge had directed the applicant Jyoti to obtain probate within a period of three months and stayed the proceedings for that period. That order was subject matter of challenge in the said writ petition.

10. This Court while considering the provisions of Section 213 read with Section 57, found that generally if an executor or a legatee claims anything under the Will, he has to obtain a probate or letter of administration if he wants to establish his right in any Court of justice. However, this general rule as contemplated under Section 213 was subject to certain exceptions, which were provided in Sub-section (2) of that

Section itself. Sub-section (2) provided that Section 213 will not apply in case of Wills made by Mohammedans but it shall apply only in case of Wills made by Hindus, Buddhists, Sikhs, Jaina where such Wills are of the class specified in Clauses (a) and (b) of Section 57.

11. It can be seen that Clause (a) applies to Wills made by Hindus, Buddhist, Sikhs or Jains on or after 1st day of September, 1870 within the territory mentioned therein. It could further be seen that Clause (a) applies to Wills made within the territories which at the said date were subject to Lieutenant Governor of Bengal or within the local limits of the ordinary original civil jurisdiction of the High Courts of Judicature at Madras or Bombay. It could further be seen that it applies to both movable as well as immovable properties. Then Clause (b) governs all such wills and codicils made outside those territories or limits. Thus, in all the territories excluding the territories included in Clause (a) insofar as they relate to immovable properties, they would be governed by the general rule as contemplated under Section 213.

12. Clause (c) of Section 57 deals with all Wills and codicils made by any Hindu, Buddhist, Sikh or Jain on or after the 1st day of January, 1927 to which those provisions are not applied by Clauses (a) and (b).

13. It can clearly be seen that the present Will is executed at Yavatmal which is admittedly not covered under the territories included in Clause, (a) of Section 57. For all other territories, if the property is an immovable property, it will be governed by the general rule of Section 213 if the property is an immovable property. However, admittedly, the property in question is not an immovable property. Therefore, the Will of the nature with which we are concerned would be governed by Clause (c) of Section 57. Now referring back to Section 213, it will be clear that the general rule, wherein it has been made necessary to obtain a probate or letter of administration for raising a right as executor or legatee, by virtue of Sub-section (2) has been made applicable to wills made by any Hindu. Buddhist. Sikh or Jaina where such Wills are referable to clauses specified in Clauses (a) and (b) of Section 57. It is, therefore, clear that the Wills of the nature covered by

Sub-clause (c) of Section 57 are not covered by the general rule under Section 213, which requires a probate or letter of administration to enable a person to raise a claim to a right as an executor or legatee. The Legislature by exclusion has not made the provisions of Section 213 applicable to the Wills covered under the provisions of Sub-clause (c) of

Section 57.

14. I am, therefore, in respectful agreement with the view taken by this Court in the aforesaid case of Jyoti, cited supra, wherein it has been held that for the Wills which are covered under Sub-clause (c) of Section 57, it is not necessary to obtain a probate or letter of administration, so as to establish right as an executor or legatee.

15. In that view of the matter, I am of the considered view that the approach of the learned M. R. T. in directing the petitioner to obtain heirship certificate within a stipulated period was not right in law. The petitioner could have established his right as executor or legatee even without there being a probate or letter of administration in his favour. The directions, therefore, in so far as that aspect of the matter is concerned by the learned M. R. T. are not sustainable in law in view of the judgment of this Court in the aforesaid case of Jyoti cited supra. These directions will, therefore, have to be quashed and set aside.

16. In that view of the matter, the order of the learned S. D. O. rejecting the application of the petitioner for adducing the evidence will also not be sustainable in law.

17. The petitioner in view of provisions of Section 213 read with Section 57 of the Succession Act is entitled to base his claim on a Will without there being a probate or a letter of administration. It is a different matter as to whether the petitioner will be in a position to establish his claim or not. But not to permit the petitioner to lead the evidence, in my view, would be travesty of justice. The petitioner is entitled to raise his claim in view of the aforesaid discussions on the basis of the Will without there being a probate or a letter of administration granted to him.

18. In that view of the matter, the writ petition is allowed. The order passed by the learned Member, Maharashtra Revenue Tribunal dated 23-1-2002, thereby directing the petitioner to obtain heirship certificate and the order passed by the learned Sub-Divisional Officer dated 30-4-2002, thereby refusing the permission to the petitioner to adduce documentary and oral evidence are hereby quashed and set aside. The learned Sub-Divisional Officer is directed to hold the enquiry afresh, by granting opportunity to the petitioner to adduce oral as well as documentary evidence. The learned Sub-Divisional Officer is directed to take appropriate decision after considering the evidence led by the petitioner, in accordance with law.

19. Rule is accordingly made absolute with no older as to the costs.
Jeshma Mohandas KP
Advocate, Kozhikode
567 Answers
1 Consultations
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Hi,
 In Delhi probate  is not mandatory, but it is upto you if you want to go ahead to  a probate order to secure the right.
This is one of the ruling where the court observed that the probate is not mandatory.
1.Sh. Rajesh vs Smt. Munni Devi on 10 March, 2011   and 
 2.Mr. Chetan Dayal vs Mrs. Aruna Malhotra & Ors. on 14 August, 2012 are examples.

* IN THE HIGH COURT OF DELHI AT NEW DELHI

MR. CHETAN DAYAL ..... Plaintiff Through: Ms Yashmeet Kaur, Adv.

versus

MRS. ARUNA MALHOTRA & ORS. ..... Defendants Through: Mr Mahesh Kumar Singh, Adv for D-1

Ms Manisha Tyagi, Adv. for DDA

CORAM:

HON'BLE MR. JUSTICE V.K.JAIN

JUDGMENT

V.K.JAIN, J. (ORAL)

IA No. 13889/2010 (O. 14 R. 2 CPC)

1. The following additional issue is framed on the pleadings of the parties:- Whether the suit is properly valued for the purpose of Court fee and jurisdiction and the requisite fee has been paid on it? OPP

2. The learned counsel for plaintiff also wants one issue with respect to jurisdiction of this Court to decide the genuineness and validity of the Will set up in the plaint another issue on the maintainability of the suit. CS(OS) 2318/2006 Page 1 of 11

3. As regards maintainability of the suit, this being a suit for partition on the basis that the plaintiff is one of the co-owners of the suit property, it can hardly be disputed that the suit for partition and separate possession of the property is maintainable in law. The learned counsel for the defendants is unable to show how the suit, as framed, is not maintainable. Therefore, there is no necessity for framing any issue with respect to maintainability of suit.

4. As regards jurisdiction, the learned counsel for the defendants 1 and 2 has placed reliance upon T. Venkata Narayana and Others v. Venkata Subbamma and Ors. (1996) 4 SCC 457 and Chiranjilal Shrilal Goenka v. Jasjit Singh and Ors. (1993) 2 SCC 507. In the case of Chiranjilal Shrilal (supra), one Chiranjilal Shrilal Goenka, who was involved in several suits, one of which was pending at the stage of appeal, died leaving behind a Will whereby he appointed his younger daughter as the sole executrix of the Will. One Radhey Shyam, claimed to be adopted son of Shri Chiranjilal Shrilal. He along with his wife filed substitution application under Order 22 Rule 3 of CPC setting up rival claim. When a dispute arose as to who would represent the estate of Chiranjilal Shrilal, all the three were brought on record by the Court. By a further order, an arbitrator was appointed to settle the dispute as to who would be the legal heirs of the estate of late Chiranjilal Shrilal. Pursuant to the order, the arbitrator Justice V.S. Deshpande entered upon the arbitration. The counsel for Radhey Shyam gave a letter giving details of all CS(OS) 2318/2006 Page 2 of 11 the pending suits and one of the items mentioned therein was the suit title S.N. Rungta v. R.C. Goenka. The schedule of the suits was annexed to the order whereby the arbitrator was appointed. One of the issues framed by the Arbitrator was with respect to execution of the Will dated 29.10.1982. Another issue was with respect to the execution of the Will dated 04.07.1978 in case the execution of the Will dated 29.10.1982 was not proved. Simultaneous proceedings in the probate suit were pursued in Bombay High Court where the learned Judge expressed doubt as to whether the arbitrator had jurisdiction to decide the probate suit. Similarly on an application made before the arbitrator for clarification, he too stated that when the order of his appointment was passed and all the pending proceedings were referred to in the schedule, it will be assumed that the Court had applied its mind and referred for arbitration the probate suit as well. But, he could not give any clarification in that behalf. He felt that it would be expedient to the applicant to seek clarification from this Court.

It was contended before Supreme Court that the Probate Court had exclusive jurisdiction to grant probate of the Will to the applicant for due implementation of the directions contained in the Will and such an issue could not be referred to arbitration. The contention of the respondent, on the other hand, was that the applicant had consented to refer the probate suit for arbitration and the plea taken by him was just and afterthought. It was also submitted that since the Court had, CS(OS) 2318/2006 Page 3 of 11 with a view to decide all the disputes referred them for arbitration, the arbitrator alone had got jurisdiction and the award would be subject to the approval or disapproval of the Court. His contention was that instead of parallel proceedings before the probate court and the arbitrator to be permitted to continue, it was desirable that the arbitrator should decide issues Nos.1 and 2 with other issues and determine as to who would be the legal heirs and his decision would be binding in the probate suit. It was in these circumstances and on these facts that Supreme Court concluded that it is the Probate Court which has been conferred with exclusive jurisdiction to grant probate of the Will or refuse the same. It was observed that grant of probate by a Court of competent jurisdiction is in the nature of the proceeding in rem which binds not only the parties before the Court, but also all other persons in all proceedings arising out of the Will or claims under or connected therewith. It was further observed that the award deprives the parties of their statutory right of appeal provided under Section 299 of Indian Succession Act. It was also observed that the Probate Court alone had exclusive jurisdiction and the Civil Court on original side or the Arbitrator does not get jurisdiction even if consented to by the parties, to adjudicate upon the proof or validity of the Will propounded by the executrix, the applicant. It was made clear that this exposition of law was only for the purpose of finding the jurisdiction of the arbitrator. CS(OS) 2318/2006 Page 4 of 11

5. In T. Venkata Narayana (supra), the scope of the suit was limited to interpretation of the compromise decree passed in the partition suit. The only question before the Supreme Court was as to whether the respondent was entitled to adduce secondary evidence to prove the alleged Will said to have been executed in her favour. In that case, a compromise decree for partition came to be passed by the District Court. Thereafter, a civil suit was filed for perpetual injunction against alienation of the said property. On death of the defendant, the respondent came on record as her legal heirs. They claimed that the deceased defendant had executed a Will in their favour. The question which came up for consideration before Supreme Court was as to whether the respondents were entitled to adduce secondary evidence to prove the Will which they were setting up. It was in this context that Supreme Court observed that a same suit for injunction could not be converted into a suit for probate of a Will which has to be proved, according to law, in the Court having competence and jurisdiction, according to the procedure provided under the Indian Succession Act and a mere suit for injunction could not be converted into a probate suit.

6. In the case before this Court, no parallel proceedings with respect to the Will set up by the plaintiff are pending. In fact, no proceedings with respect to genuineness or otherwise of the Will dated 04.02.1997 have been initiated except two suits in Punjab, one filed by the plaintiff seeking declaration that the Will dated CS(OS) 2318/2006 Page 5 of 11 04.02.1997 was the last Will of Shri Dayal Chand Kaith and the other filed by defendant No. 2 through defendant No. 1 as his attorney, seeking to challenge the aforesaid Will. Admittedly, both those suits were decided in favour of the plaintiff. In those suits, it was held that the Will dated 04.02.1997 was the last and final Will of late Shri Dayal Chand Kaith. As regards partition of Delhi property, it was held that Chetan Dayal was at liberty to file a suit at the place where the property is situated. In this Court, in the proceedings initiated by defendant No. 2 for obtaining Letter of Administration in respect of the estate of late Shri Dayal Chand Kaith, the Court, while dismissing the petition on the ground of limitation, took the view that the decision of the Courts at Punjab was not binding on this Court in those proceedings. Another reason given by the Court for dismissing the petition was that an earlier petition filed by the executor of the Will had already been dismissed.

7. In a civil suit whenever a party to the litigation set up a Will, which is disputed by the other party, the Civil Court with a view to decide the controversy involved in the suit is required to adjudicate upon the execution and validity of the Will set up in the pleadings, though the finding of the Civil Court not being judgment in rem will not bind those who are not parties to the suit. It is not in dispute that probate of the Will of a Hindu is not obligatory through there no bar to grant of probate or Letter of Administration, as the case may be. Section 213 (1) of Indian Succession Act provides that no right as executor or legatee can be CS(OS) 2318/2006 Page 6 of 11 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. However, sub-Section (2) of the aforesaid Section, to the extent it is relevant, stipulates that the said Section shall only apply in the case of Wills made by any Hindu, Buddhist, Sikh or Jaina where such Wills are of the classes specified in clauses (a) and (b) of Section 57. Section 57(a) applies to all Wills made by any Hindu, Buddhist, Sikh or Jaina on or after 01.09.1870 within the territories which at the said date were subject to the Lieutenant-Governor or Bengal or within the local limits of the ordinary original civil jurisdiction of the High Courts of judicature at Madras and Bombay and clause (b) applies to all such Wills and codicils made outside those territories and limits so far as relates to immovable property situate within those territories or limits. Therefore, if one or more Will are set up in civil suit, the Court cannot refuse to adjudicate upon the genuineness and execution of the Will and compel the parties to seek probate before relying upon the Will. Doing that would amount to making probate of the Will executed by a Hindu mandatory, which would not be in consonance with the provisions of Indian Succession Act. Therefore, there is no ground to frame issue with respect to jurisdiction of this Court to adjudicate upon the genuineness and validity of the Will set up in the plaint.

CS(OS) 2318/2006 Page 7 of 11 This issue came up for consideration before this Court in Rajan Suri and Anr. v. The State and Anr. AIR 2006 Delhi, 148b and this Court, inter alia, held 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., 71

CS(OS) 2318/2006 Page 8 of 11 (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."

33. The result of the aforesaid is that complete line of judgment referred by the learned counsel for the

petitioner in support of the submission that probate is mandatory would have no application to the facts of the present case and thus findings arrived at in the collateral proceedings in the suit to which the petitioners were parties would bind the petitioners."

The application stands disposed of in terms of this order. IA No. 1433/2012 (under Section 151 CPC)

CS(OS) 2318/2006 Page 9 of 11 After arguments, the learned counsel for the defendant No. 1 seeks to withdraw this application.

Dismissed as withdrawn.

IA No. 6902/2010 (under Section 151 CPC)

This application already stands disposed of on 29.09.2011 and may be taken as such.

IA No. 9321/2010 (under Section 151 CPC)

Heard. Dismissed as not pressed.

IA No. 9324/2010 (under Section 151 CPC)

Heard. Admittedly, front portion of the suit property is lying vacant. It would not be in the interest of any party to keep the premises vacant. However, it has to be ensured that the premises is let out to a person, who is ready to vacate the same, as and when directed by the Court. The parties are, therefore, permitted to look for a tenant who is ready to come to the Court and give an undertaking that if this portion is let out to him, he will deposit the rent in the Court and will vacate the premises, as and when directed by the Court, within such time as the Court may fix for this purpose. The particulars of any such tenant would be furnished to the Court under intimation to the opposite counsel and if front portion is let out to him, under the order of the Court, the lease deed in favour of the tenant would provisionally be executed by all the parties to the suit. CS(OS) 2318/2006 Page 10 of 11 The application stands disposed of in terms of this order. IA 7403/2012 (u/S.151 CPC)

Heard. The learned counsel for the defendants seeks permission to withdraw this application with liberty to file application for amendment of written statement of defendant No.2.

The application stands dismissed as withdrawn. Leave, as sought, is granted. CS(OS) 2318/2006

Affidavit by way of evidence be filed within four weeks. The parties to appear before the Joint Registrar on 3rd October, 2012 for fixing dates for cross-examination of witnesses of plaintiff. The FDR of Rs.28 lakhs will be got renewed by the Registry from time to time and will be kept alive. V.K.JAIN, J

AUGUST 14, 2012
Thresiamma G. Mathew
Advocate, Mumbai
1316 Answers
85 Consultations
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Hello,
IN THE HIGH COURT OF DELHI AT NEW DELHI
SUBJECT : CODE OF CIVIL PROCEDURE
Date of Judgment: 10.03.2011
RSA No. 92/2009 & CM Nos. 10095/2009 & 10096/2009
SH. RAJESH ………..Appellant
Through: Mr. Gurbhansh Singh, Advocate.
Versus
SMT. MUNNI DEVI ……….Respondent.
Through: None.
CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR
INDERMEET KAUR, J. (Oral)

relevat portions:
Court had returned a finding
that in the Union Territory of Delhi, probate of a will is not required. Will
had been duly proved. Suit of the plaintiff was decreed.
S J Mathew
Advocate, Mumbai
1954 Answers
66 Consultations
5.0 on 5.0
1. Go for relinquishment deed which will require nominal stamp duty,

2. For this you are required to consult stamp act, not any  citation.
Krishna Kishore Ganguly
Advocate, Kolkata
12143 Answers
233 Consultations
5.0 on 5.0

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