Application can be made for revocation of succession certificate without obtaining probate of will

Citation;AIR1938All640

IN THE HIGH COURT OF ALLAHABAD

Decided On: 30.08.1938

Appellants: Mt. Janki Bai
Vs.
Respondent: Durga Prasad

JUDGMENT

Mohammad Ismail, J.

1. This appeal arises out of an application made by the appellant under Section 383, Succession Act (39 of 1925). It appears that one Mt. Kesar died in June 1936. Her husband Ajudhia Prasad had predeceased her. On 14th July 1936 the opposite party Durga Prasad applied for a succession certificate in the Court of the District Judge, Agra. Among the relations he mentioned in the application only two persons named Lachhman Singh arid Bishan Singh. The appellant Mt. Janki Bai was not mentioned in the application and therefore no notice of the application was sent to the appellant. Mt. Janki Bai claims to be the sister of the deceased Mt. Kesar and alleges that the deceased left a will in her favour conveying her property to the appellant. It was also contended that the opposite party had full knowledge of the existence of this will but fraudulently refrained from giving notice of his application to the appellant. The learned District Judge without going into the merits of the case rejected the application on the sole ground that it was not possible for him to revoke the succession certificate under Section 383 of the Act until the appellant had taken out a probate of the will

. Under Section 213 of the Act no right as executor or legatee can be established in any Court of justice, unless a Court of competent jurisdiction in British 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. Ordinarily, this Section would bar the application of the appellant as she based her right in her application for the revocation of the succession certificate on the will of the deceased. Sub-section (2) of the aforesaid Section however lays down that this Section will not apply in cases of wills made by Mahomedans and shall only apply to cases of wills made by any Hindu where such wills are of the class specified in Clauses (a) and (b) of Sub-section (7). Upon a reference to Section 57 we find that the present will comes under Sub-section (c) of Section 57 because according to the allegation in the application the will was made after 1st January 1927. It follows therefore that Section 213 is no bar to the application made by the appellant and it is not necessary for her to take out probate of the will of the deceased. As the application was dismissed on a preliminary ground apparently without reference to Section 213 of the Act, I must set aside the order of the Court below and direct that the application of the appellant should be enquired into according to law. The appeal is allowed. Costs here and hitherto will abide the result.

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