Gangavath Lalu Vs. Gangavathi Tulsi - Court Judgment

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property - temporary injunction - sections 57, 213 and 213 (1) of succession act, 1925 and order 39 rule 1 of code of civil procedure, 1908 - petition against dismissal of application seeking temporary injunction - ownership claimed under will - agents to government dismissed application without going into merit held, proper course is to get probate of will - as per section 213 (2) and 57 of succession act it is not necessary to obtain probate of will or letter of administration - will can be proved in civil proceedings in civil court - impugned order of agent of government set aside - case remanded back to agent of government to decide afresh by giving opportunity to prove will and decide injunction by looking in balance of convenience. - cantonments act[c.a. no. 41/2006]. section 346 & cantonment fund (servants rules, 1937, rules 13, 14 & 15: [h.l. gokhale, ag. cj, p.v. hardas, naresh h. patil, r.m. borde & r.m. savant, jj] jurisdiction of school tribunal constituted under maharashtra employees of private schools (conditions of service) regulations act, (3 of 1978) held, school run by the cantonment board is a primary school and it is not a school recognised by any such board comparable to the divisional board or the state board. the school tribunal constituted under section 8 of the maharashtra act cannot entertain appeals filed under section 9 by the employees working in schools which are established and administered by the cantonment board. teacher employed in the school run by cantonment board being covered under rule 2 (f) of the cantonment fund servants rules, 1937 can file appeal under rules 13, 14 and 15 to authorities provided therein against any order imposing any penalties etc. [deolali cantonment board v usha devidas dongre, 1993 mah. lj 74; 1993 lab ic 1858 overruled]. -- maharashtra employees of private schools (conditions of service) regulations act, 1978 [act no. 3/1978]. sections 9 & 2(21): jurisdiction of school tribunal whether a school run by cantonment board is not a recognised school within the meaning of section 2(21)? - held, the act is enacted to regulate recruitments and conditions of employees in certain private schools and provisions of the act shall apply to all private schools in the state whether receiving any grant-in-aid from the state government or not. private school is defined in section 2(2) of the act as a recognised school established or administered by a management other than the government or a local authority. recognised means recognised by director, the divisional board or state board. thus as far as the first part of the definition of being recognised is concerned, it includes, as stated above, four directors, the divisional boards and four state boards. the second part of this definition which comes after the comma refers to any officer authorised by director or by any of such boards. the question to be examined is whether school run by the cantonment board could be said to be one run by any such boards. a private school has to be recognised by the state or the divisional board or by any officer authorised in that behalf. when this phrase namely: recognised by any officer authorised by the director or by any such boards, is included in the latter part of section 2(21), such boards will be of the level of the state board or the divisional board. the boards referred to in the definition of the word recognised means the boards which deal with education at levels other than that of the level at which primary schools are operating. thus for being recognised, the school has to be recognised by the board and therefore, it has to be operating at a higher level i.e., secondary level. section 2(21) of the act defines the term recognised. the last clause therein is by any of such boards. the term such is defined in oxford dictionary as of the kind or degree indicated or implied by the context. therefore, the term such board will have to mean a divisional board of or the level of divisional board or the state board. the divisional board holds the examination and issues certificates after 10th and 12th standard examinations. the state board advises the state government on policy matters, ensures uniform pattern of secondary and higher secondary education, lays down principles for determining syllabi, prescribes text books, etc. the cantonment board does not discharge any of such duties nor is there any other board or body under the cantonments act discharging any such duties. the duties of the cantonment board are laid down in section 62 and amongst others, clause (xiv) lays down the duties of establishing and maintaining or assisting primary schools only. the cantonment board is not required to enter into the area of secondary education. therefore, school run by the cantonment board is a primary school and it is not a school recognised by any such board comparable to the divisional board or the state board. that being the position, it is not possible to accept it to be a recognised school for being a private school under the act. for the reasons state above, the school tribunal constituted under section 8 of the act cannot entertain appeals filed under section 9 by the employees working in schools which are established and administered by the cantonment board. [deolali cantonment board v usha devidas dongre, 1993 mah.lj 74; 1993 lab ic 1858 overruled]. - the agent to government held that any order from him would amount to effectively adjudicating an issue relating to probate of will. narayana's case (1997 (5) andh lt459) (supra), i have no hesitation whatsoever to agree with the contentions advanced i by the learned counsel for the petitioner as well as the learned amicus curiae.orderb. sudershan reddy, j.1. this civil revision petition under article 227 of the constitution of india is directed against the order dated 13-11-2000 on the file of the agent to government, khammam.2. the agent to government dismissed the interlocutory application filed by the petitioner under order 39, rule 1, cpc seeking temporary injunction against the respondent.3. before adverting to the question that falls for consideration, it. may be necessary to briefly notice the relevant facts :the petitioner is the plaintiff in the main suit. the petitioner and the husband of the respondent-defendant are brothers and they are sons of one late vasya. the said vasya died on 12-1-1994. it is the case of the petitioner that his father during his lifetime has acquired the suit schedule land and was the absolute owner and possessor of the same. it is also his case that his father late vasya executed will deed dated 26-8-1993 bequeathing the schedule properties in his favour. however, the mandal revenue officer ignoring the claim of the petitioner mutated the property in the revenue records in his mother's name.4-5. the petitioner's mother during her lifetime executed a registered will deed no. 59/95 dated 21-7-1995 in favour of the petitioner bequeathing the schedule property in his favour and after the death of the petitioner's mother, he succeeded to the schedule property under the will. the petitioner asserts that he is in possession of the landed property by the date of death of his mother. it is his case that even during the lifetime of his mother, he has been paying the land revenue but in her name and after her death, the petitioner submitted an application for getting his name recorded in the revenue records.6. according to the petitioner, the respondent-defendant has no manner of right over the petition schedule property and she has been claiming it without any authority of law under some influential sources. it is under those circumstances, the petitioner filed the suit for perpetual injunction restraining the respondent-defendant from interfering with his peaceful possession and enjoyment of the schedule property. the petitioner also filed an interlocutory application for grant of temporary injunction.7. the agent to government without considering the application of the petitioner on merits disposed of the same observing that the petitioner herein made an attempt to get his title declared on the strength of the will deed referred to hereinabove. the agent to government held that any order from him would amount to effectively adjudicating an issue relating to probate of will. such a course is not permissible in law.8. the agent to government further held that the proper course for the petitioner would be to approach the competent court of jurisdiction for probate of will. it is observed by the agent to government that suit for injunction cannot be converted into a proceeding for making an enquiry for probate of will. the agent of government relied upon the decision of the supreme court in t. v. narayana v. venkata subbamma, : [1996]3scr1042 . the appeal to the supreme court itself has been preferred against the judgment of this court in c. r. p. no. 1935 of 1992, dated 5-11-1993. the only question that had fallen for consideration before the supreme court was (para 4) :'whether the respondent is entitled to adduce secondary evidence to prove the alleged will said to have been executed by venkata subbamma in her favour ?'9. the supreme court observed (para 4) : 'the mere suit for injunction cannot be converted into a suit for probation of a will whereat the will is to be proved. if the will is to be proved according to law, it has to be by way of probate in the court having competency and jurisdiction according to the procedure provided under the indian succession act. the procedure cannot be converted into a suit for mere injunction as a probate suit and direct the parties to adduce evidence, be it primary or secondary evidence as the circumstances may warrant.'10. the supreme court having taken the said view found fault with the order of the high court in directing adduction of secondary evidence in a suit for injunction to prove the will alleged to have been executed.11. learned counsel for the petitioner, sri hari sreedhar submits that the relevant provisions of the indian succession act, 1925 (for short 'the act'), more particularly sections 57 and 213 of the act were not placed and brought before the supreme court. undoubtedly, the supreme court without noticing those relevant provisions disposed of the appeal. it is contended by the learned counsel for the petitioner that it is abundantly clear from a reading of section 213(2) read with section 57(a) and (b) of the act that whatever prohibition contained in sub-section (1) of section 213 of the act applies to wills executed by hindus on or after 1st day of september, 1870 within the territories which at the said date were subject to the jurisdiction of 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. learned counsel in effect submits that the prohibition under sub-section (1) of section 213 of the act would not be applicable in case of wills executed by hindus in respect of properties situated within the state of andhra pradesh.12. the respondent having received the notice remained absent. having regard to the importance of the question that falls for consideration, the court has requested sri m. ravindranath reddy, learned advocate to assist the court as amicus curie. learned amicus curie also supports the submissions made by the learned counsel for the petitioner. he submits that the decision of the supreme court may have to be confined to the facts of that particular case on hand. it is contended that the supreme court could not have declared the law contrary to the provisions of the act. it is submitted that had the provisions were brought to the notice of the supreme court, the decision perhaps would have been different.13. a division bench of this court in a. s. murthy v. d.v. s. s. murthy, (1979) 2 andh lt 347, after referring to clause (4) of section 57 and sections 213(1) and (2) of the act and after an elaborate consideration of the matter held in categorical terms that section 213(2) excludes wills executed by persons residing in the state of andhra pradesh in respect of properties situated in andhra pradesh from the prohibition contained in section 213(1) of the act. it is also held by the court that even without probate or letters of administration the legatees are entitled to establish their right under the wills. the only other wills executed by hindus in which the prohibition contained in section 213(1) of the act applies, are the wills though made outside the territories referred to in clause (4) of section 57 relate to immovable properties situated within those territories or limits.14. in m. narayana v. m. suryakantham, (1997) 5 andh lt 459, a learned single judge of this court after referring to the judgment of the supreme court in t. v. narayana's case : [1996]3scr1042 (supra) and the division bench judgment of this court in a. s. murthy's case (1979 (2) andh lt 347) (supra) observed that a plain reading of section 213(1) would definitely indicate that it prohibits any executor or legatee under will from establishing his or her right under the will in any court of justice without obtaining a probate of the will or letters of administration. but, it is clear from subsection (2) of section 213 of the act that section 213 of the act woul'd not at all apply to the wills made by muhammadans and shall apply only to the wills made by any hindu, buddhist, sikh or jain where such wills are of classes specified in clauses (a) and (b) of section 57 of the act. the learned judge observed :'it is unfortunate that none of the above statutory provisions which are of utmost relevance have, been brought to the notice of the supreme court in t. venkata narayana's case (supra). moreover, in that case there was no occasion for the supreme court to consider, directly or indirectly, the question whether the prohibition contained in sub-section (1) of section 213 of the act would apply to the wills executed by the hindus residing in the state of andhra pradesh in respect of properties situate in andhra pradesh'.15. in the light of the authoritative pronouncement of this court in a. s. murthy's case (1979 (2) andh lt 347 (supra) and followed by a learned single judge of this court in m. narayana's case (1997 (5) andh lt459) (supra), i have no hesitation whatsoever to agree with the contentions advanced i by the learned counsel for the petitioner as well as the learned amicus curiae. it is clear from a bare reading of section 213(2) read with section 57(a) and (b) of the act that the prohibition contained in sub-section (1) of section 213 applies to wills executed by hindus on or after 1st day of september, 1870 within the territories which at the said date were subject to the jurisdiction of 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. obviously, for the wills executed within the state of andhra pradesh in respect of immovable properties situated within the territorial jurisdiction of the state of andhra pradesh, the prohibition contained in sub-section (1) of section 213 has no application. section 57 of the act reads thus :'57. application of certain provisions of part to 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, buddist, sikh or jain, 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) .....' 16. a plain reading of sections 213(2) and 57 of the act would make it clear that whatever prohibition contained in sub-section (1) of section 213 has no application in respect of wills executed by hindus within the state of andhra pradesh in respect of immovable properties situated within the territorial limits of the state of andhra pradesh. it is not necessary to obtain probate of a will or letters of administration. the wills upon which reliance is sought to be placed can always be permitted to be proved in any civil proceeding.17. in such view of the matter, the impugned order passed by the agent to government is set aside. the matter is remitted for fresh consideration by the agent to government on merits. the agent to government shall now consider as to whether the petitioner made out any prima facie case and as to whether the balance of convenience is in favour of the petitioner for grant of injunction. the application of the petitioner shall not be dismissed on the ground that the petitioner should go and obtain probate of wills first before filing the suit for injunction. the application of the petitioner shall be disposed of within four weeks from the date of receipt of a copy of this order.18. this court by an order dated 28-11-2000 granted an order of status quo and it would be appropriate to continue the same order till the disposal of the application by the agent to government.19. the court acknowledges the valuable assistance rendered by the learned amicus curiae.20. the civil revision petition is accordingly allowed. no order as to costs.

Judgment:
ORDER

B. Sudershan Reddy, J.

1. This Civil Revision Petition under Article 227 of the Constitution of India is directed against the order dated 13-11-2000 on the file of the Agent to Government, Khammam.

2. The Agent to Government dismissed the interlocutory application filed by the petitioner under Order 39, Rule 1, CPC seeking temporary injunction against the respondent.

3. Before adverting to the question that falls for consideration, it. may be necessary to briefly notice the relevant facts :

The petitioner is the plaintiff in the main suit. The petitioner and the husband of the respondent-defendant are brothers and they are sons of one late Vasya. The said Vasya died on 12-1-1994. It is the case of the petitioner that his father during his lifetime has acquired the suit schedule land and was the absolute owner and possessor of the same. It is also his case that his father late Vasya executed Will deed dated 26-8-1993 bequeathing the schedule properties in his favour. However, the Mandal Revenue Officer ignoring the claim of the petitioner mutated the property in the revenue records in his mother's name.

4-5. The petitioner's mother during her lifetime executed a registered Will deed No. 59/95 dated 21-7-1995 in favour of the petitioner bequeathing the schedule property in his favour and after the death of the petitioner's mother, he succeeded to the schedule property under the Will. The petitioner asserts that he is in possession of the landed property by the date of death of his mother. It is his case that even during the lifetime of his mother, he has been paying the land revenue but in her name and after her death, the petitioner submitted an application for getting his name recorded in the revenue records.

6. According to the petitioner, the respondent-defendant has no manner of right over the petition schedule property and she has been claiming it without any authority of law under some influential sources. It is under those circumstances, the petitioner filed the suit for perpetual injunction restraining the respondent-defendant from interfering with his peaceful possession and enjoyment of the schedule property. The petitioner also filed an interlocutory application for grant of temporary injunction.

7. The Agent to Government without considering the application of the petitioner on merits disposed of the same observing that the petitioner herein made an attempt to get his title declared on the strength of the Will deed referred to hereinabove. The Agent to Government held that any order from him would amount to effectively adjudicating an issue relating to probate of Will. Such a course is not permissible in law.

8. The Agent to Government further held that the proper course for the petitioner would be to approach the competent Court of jurisdiction for probate of Will. It is observed by the Agent to Government that suit for injunction cannot be converted into a proceeding for making an enquiry for probate of Will. The Agent of Government relied upon the decision of the Supreme Court in T. V. Narayana v. Venkata Subbamma, : [1996]3SCR1042 . The appeal to the Supreme Court itself has been preferred against the judgment of this Court in C. R. P. No. 1935 of 1992, dated 5-11-1993. The only question that had fallen for consideration before the Supreme Court was (Para 4) :

'Whether the respondent is entitled to adduce secondary evidence to prove the alleged Will said to have been executed by Venkata Subbamma in her favour ?'

9. The Supreme Court observed (Para 4) : 'The mere suit for injunction cannot be converted into a suit for probation of a Will whereat the Will is to be proved. If the Will is to be proved according to law, it has to be by way of probate in the Court having competency and jurisdiction according to the procedure provided under the Indian Succession Act. The procedure cannot be converted into a suit for mere injunction as a probate suit and direct the parties to adduce evidence, be it primary or secondary evidence as the circumstances may warrant.'

10. The Supreme Court having taken the said view found fault with the order of the High Court in directing adduction of secondary evidence in a suit for injunction to prove the Will alleged to have been executed.

11. Learned counsel for the petitioner, Sri Hari Sreedhar submits that the relevant provisions of the Indian Succession Act, 1925 (for short 'the Act'), more particularly Sections 57 and 213 of the Act were not placed and brought before the Supreme Court. Undoubtedly, the Supreme Court without noticing those relevant provisions disposed of the appeal. It is contended by the learned counsel for the petitioner that it is abundantly clear from a reading of Section 213(2) read with Section 57(a) and (b) of the Act that whatever prohibition contained in Sub-section (1) of Section 213 of the Act applies to Wills executed by Hindus on or after 1st day of September, 1870 within the territories which at the said date were subject to the jurisdiction of 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. Learned counsel in effect submits that the prohibition under Sub-section (1) of Section 213 of the Act would not be applicable in case of Wills executed by Hindus in respect of properties situated within the State of Andhra Pradesh.

12. The respondent having received the notice remained absent. Having regard to the importance of the question that falls for consideration, the Court has requested Sri M. Ravindranath Reddy, learned Advocate to assist the Court as Amicus Curie. Learned Amicus Curie also supports the submissions made by the learned counsel for the petitioner. He submits that the decision of the Supreme Court may have to be confined to the facts of that particular case on hand. It is contended that the Supreme Court could not have declared the law contrary to the provisions of the Act. It is submitted that had the provisions were brought to the notice of the Supreme Court, the decision perhaps would have been different.

13. A Division Bench of this Court in A. S. Murthy v. D.V. S. S. Murthy, (1979) 2 Andh LT 347, after referring to Clause (4) of Section 57 and Sections 213(1) and (2) of the Act and after an elaborate consideration of the matter held in categorical terms that Section 213(2) excludes Wills executed by persons residing in the State of Andhra Pradesh in respect of properties situated in Andhra Pradesh from the prohibition contained in Section 213(1) of the Act. It is also held by the Court that even without probate or letters of administration the legatees are entitled to establish their right under the Wills. The only other Wills executed by Hindus in which the prohibition contained in Section 213(1) of the Act applies, are the Wills though made outside the territories referred to in Clause (4) of Section 57 relate to immovable properties situated within those territories or limits.

14. In M. Narayana v. M. Suryakantham, (1997) 5 Andh LT 459, a learned single Judge of this Court after referring to the judgment of the Supreme Court in T. V. Narayana's case : [1996]3SCR1042 (supra) and the Division Bench judgment of this Court in A. S. Murthy's case (1979 (2) Andh LT 347) (supra) observed that a plain reading of Section 213(1) would definitely indicate that it prohibits any executor or legatee under Will from establishing his or her right under the Will in any Court of justice without obtaining a probate of the Will or letters of administration. But, it is clear from subsection (2) of Section 213 of the Act that Section 213 of the Act woul'd not at all apply to the Wills made by Muhammadans and shall apply only to the Wills made by any Hindu, Buddhist, Sikh or Jain where such Wills are of classes specified in Clauses (a) and (b) of Section 57 of the Act. The learned Judge observed :

'It is unfortunate that none of the above statutory provisions which are of utmost relevance have, been brought to the notice of the Supreme Court in T. Venkata Narayana's case (supra). Moreover, in that case there was no occasion for the Supreme Court to consider, directly or indirectly, the question whether the prohibition contained in Sub-section (1) of Section 213 of the Act would apply to the Wills executed by the Hindus residing in the State of Andhra Pradesh in respect of properties situate in Andhra Pradesh'.

15. In the light of the authoritative pronouncement of this Court in A. S. Murthy's case (1979 (2) Andh LT 347 (supra) and followed by a learned single Judge of this Court in M. Narayana's case (1997 (5) Andh LT459) (supra), I have no hesitation whatsoever to agree with the contentions advanced I by the learned counsel for the petitioner as well as the learned Amicus Curiae. It is clear from a bare reading of Section 213(2) read with Section 57(a) and (b) of the Act that the prohibition contained in Sub-section (1) of Section 213 applies to Wills executed by Hindus on or after 1st day of September, 1870 within the territories which at the said date were subject to the jurisdiction of 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. Obviously, for the Wills executed within the State of Andhra Pradesh in respect of immovable properties situated within the territorial jurisdiction of the State of Andhra Pradesh, the prohibition contained in Sub-section (1) of Section 213 has no application. Section 57 of the Act reads thus :

'57. Application of certain provisions of Part to 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, Buddist, Sikh or Jain, 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) .....'

16. A plain reading of Sections 213(2) and 57 of the Act would make it clear that whatever prohibition contained in Sub-section (1) of Section 213 has no application in respect of Wills executed by Hindus within the State of Andhra Pradesh in respect of immovable properties situated within the territorial limits of the State of Andhra Pradesh. It is not necessary to obtain probate of a Will or letters of administration. The Wills upon which reliance is sought to be placed can always be permitted to be proved in any civil proceeding.

17. In such view of the matter, the impugned order passed by the Agent to Government is set aside. The matter is remitted for fresh consideration by the Agent to Government on merits. The Agent to Government shall now consider as to whether the petitioner made out any prima facie case and as to whether the balance of convenience is in favour of the petitioner for grant of injunction. The application of the petitioner shall not be dismissed on the ground that the petitioner should go and obtain probate of Wills first before filing the suit for injunction. The application of the petitioner shall be disposed of within four weeks from the date of receipt of a copy of this order.

18. This Court by an order dated 28-11-2000 granted an order of status quo and it would be appropriate to continue the same order till the disposal of the application by the Agent to Government.

19. The Court acknowledges the valuable assistance rendered by the learned Amicus Curiae.

20. The Civil Revision Petition is accordingly allowed. No order as to costs.