TMI Blog2011 (1) TMI 1576X X X X Extracts X X X X X X X X Extracts X X X X ..... n who are the defendants in the suit have filed a written statement wherein, they have stated that the registered Will dated 22.06.1990 referred to above was subsequently cancelled by Mrs.Saraswathiammal during her life time by another Will dated 13.12.1993 and the same was registered as Document No.105 of 1993. It is because of the said cancellation by execution of the fresh Will dated 13.12.1993, which according to the respondents is the last Will of the deceased, the appellants herein are not entitled for letters of administration on the basis of the registered Will dated 22.06.1990, it is contended. 3. During the course of trial, the respondents filed I.A.No.4245 of 2009 seeking permission to mark 5 documents in evidence on their side namely (i) certified copy of registered document in Doc.No.105/1993 dated 13.12.1993; (ii)letters written by the second applicant/second defendant s mother Saraswathi Ammal/testatrix; (iii) encumbrance certificate; (iv)service register of the second applicant; and (v)Death Certificate of two attesters of the Will dated 13.12.1993. Seeking to condone 475 days of delay in filing the above documents, the respondents filed I.A.No.4244 of 2009. 4 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntained in Section 213 of the Indian Succession Act. The learned counsel would further submit that the document is sought to be marked not for any collateral purpose as it is attempted to be distinguished by the learned counsel for the respondents, but, it is sought to be used only for the purpose of proving the right and title claimed under the said document. 10. To the contrary, the learned counsel for the respondents would submit that the learned Single of this Court was right in holding that the said unregistered and unprobated Will is admissible in evidence since the purpose for which the same is sought to be proved is only collateral and not for establishing any title or right derived under the said document. 11. The learned counsel on either side have placed reliance on few judgments of the Hon ble Supreme Court about which, we would make reference at the appropriate stages of this judgment. 12. At the outset, we have to state that the uncontroverted legal position in respect of admissibility of unprobated Will is that in view of Section 213 of the Act, the same is not admissible in evidence except for any collateral purpose. It is worthwhile, at this juncture to re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... defendant to go further and to prove that some one other than the plaintiff has title under the will. This he cannot do by virtue of the provisions of S.187. In the circumstances of the present case, I would therefore, hold that the defendant cannot use an unprobated will as a defence. 14.The above judgment of the Full Bench of this Court came to be referred to by a three member Bench of the Hon ble Supreme Court in Hem Nolini v. Isolyne Sarojbashini (AIR 1962 SC 1471) wherein while affirming the said view of the Full Bench of this Court, the Hon ble Supreme Court has held as follows:- The words of S.213 are not restricted only to those cases where the claim is made by a person directly claiming as a legatee. The section does not say that no person can claim as a legatee or as an executor unless he obtains probate or letters of administration of the will under which he claims. What it says is that no right as an executor or legatee can be established in any Court of Justice, unless probate or letters of administration have been obtained of the will under which the right is claimed, and therefore it is immaterial who wishes to establish the right as a legatee or an executor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 213 of the Act is not there, execution of the Will can be proved in proceedings in which the right as executor or legatee is sought to be established. The necessity to obtain probate or letters of adminstration as provided in Section 213(1) of the Act arises only when right as executor or legatee is sought to be established in a Court and hence that section does not prohibit the use of Will which is unprobated as evidence for purposes other than establishment of right as executor or legatee. So, the requirement of obtaining probate becomes relevant at the time when the establishment or right as executor or legatee on the strength of a Will is sought to be made in a Court of justice. Irrespective of the fact whether a suit is filed before or after the amendment to Section 213 of the Act if execution of the Will sought to be relied on in judicial proceedings is attempted to be proved after the amendment, it cannot be said that in cases covered by Section 213 of the Act in respect of Christians, the Will must be one in respect of which probate has been granted. Obtaining of probate in respect of a Will can also be for purposes other than the purpose for which it is not necessary to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r v. Mohan Krishan Abrol (2004(7) SCC 505) wherein, Hon ble Mr.Justice S.H.KAPADIA, (presently the Hon ble Chief Justice of India) while speaking for the Bench in paragraph No.10 has held as follows:- 10.A bare reading of Section 211 shows that the property vests in the executors by virtue of the Will and not by virtue of the probate. Will gives property to the executor; the grant of probate is only a method by which the law provides for establishing the Will. In the case of Kulwanta Bewa v Karam Chand Soni it has been held that Section 211 provides that the estate of the deceased vests in the executor; that the vesting is not of the beneficial interest in the property; but only for the purposes of representation. In the case of Meyappa Chetty v. Supramanian Chetty the Privy Council has held that an executor derives his title from the Will and not from probate. The personal property of the testator (including right of action) vests in the executor(s) on the death of the testator. For purposes of deciding this matter, Section 336 of the Act is also relevant as it provides for assent of the executor to the legacy after the death of the testator. It provides that an executor gets ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the respondents approach the Court for probating the said Will either by making a counter claim or by initiating separate proceedings. For the respondents, the right to oppose the issuance of probate in respect of the earlier Will itself is derived only from the unprobated subsequent Will. As held by the Full Bench of this Court in Ganshmdoss v. Gulab Bi Bai (cited supra), the bar contained in Section 213 of the Indian Succession Act is applicable even to a defendant in a suit. Therefore, we are of the firm view that the purpose for which the Will of the year 1993 is sought to be proved by the respondents in evidence is only for the main purpose to establish that the said Will is the last Will which cancels the earlier Will and the said purpose is not merely collateral as it is sought to be made out by the respondents. Apart from that, in Commissioner v. Mohan Krishan Abrol (cited supra) the Hon ble Supreme Court has held that even for such collateral purposes the unprobated Will cannot be used in a probate proceedings. 19. The learned Single Judge, after having referred to the Judgment of the Hon ble Supreme Court in Hem Nolini v. Isolyne Sarojbashini (cited supra) and the judg ..... X X X X Extracts X X X X X X X X Extracts X X X X
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