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The Mp High Court Holds That Even In The Case Of Two Contesting Or Rival Wills Not Covered By Section 57  (a) & (b) Of 'the Indian Succession Act', Obtaining Probate Is Not Compulsory – The Case Of Ms. Jyotsana Sanghi Vs Mrs. Gita Sanghi

Shivani Negi ,
  23 May 2023       Share Bookmark

Court :
Madhya Pradesh High Court
Brief :

Citation :
First Appeal No. 799 of 2022

Case title:

Ms. Jyotsana Sanghi vs Mrs. Gita Sanghi

Date of Order:



Hon’ble Shri Justice Subodh Abhyankar












This High Court stated that the lawsuit filed was related to a will that was signed on August 7, 2019, in Indore, by Shri Sharad Sanghi, regarding real estate in the state of M.P. as well as a property in Raigarh, Maharashtra. The issue at hand was whether a probate of the aforementioned Will was necessary, as required by Section 213 of the Act of 1925, prior to the filing of the civil suit. The MP high court subsequently proceeded to uphold the decree passed by the trial court.


1) The Code of Civil Procedure (CPC) was initially adopted in 1908 and covers a variety of civil procedure-related topics, such as court jurisdiction, pleadings filing and presentation, summons and process service, witness examination, evidence production, judgments, appeals, and decree execution.

2) The legislation in India addressing testamentary and intestate succession is the Indian Succession Act, of 1925. It is a consolidating Act that only modifies a number of Central Acts that were already in place and passed between 1841 and 1903 without making any significant new provisions. It distinguishes between intestate succession and testamentary succession.


The appellant appealed against a judgment and decree passed by the District Judge, Indore under Section 96 of CPC in Civil Suit RCS-A No.1228-A/2021, but the plaint filed was rejected under CPC Order 7 Rule 11. They filed a civil lawsuit against the respondents seeking a declaration of title, a permanent and mandatory injunction, possession, and other consequential reliefs.

Brief Facts

  • The plaintiff in this lawsuit, Ms. Jyotsana Sanghi, who is the daughter of the late Shri Sharad Kumar Sanghi, is requesting the execution of the will of the latter dated 07.08.2019.
  • After being served with a copy of the lawsuit, the defendants decided not to file written statements but instead submitted two applications pursuant to Order 7 Rule 11 of the CPC, one of which was submitted by defendant No. 2 Ragini Sanghi and the other by defendants Nos. 3, 6, 7, and 8.
  • The suit was rejected on the grounds that it is barred by Sections 213, 227, and 276 of the Indian Succession Act, 1925 (hereinafter referred to as the "Act of 1925"), despite the fact that the application filed by defendants nos. 3, 6, 7, and 8 was dismissed by the trial court's learned judge.


  • The counsel for the respondents, Shri A.K. Sethi and Shri Manu Maheshwari have argued that the will must be probated under Section 217(1) of the Act of 1925, as the relief clause of the complaint suggests that the appellant/plaintiff is not sure about its validity.
  • Shri Sethi has drawn the Court's attention to the relief sought in clause (a) and clause (b) of the Relief clauses, which read as-
  • A decree of declaration that the subject will dated 07.08.2019 is the last will and testament of the deceased testator and that the properties mentioned in the will have been bequeathed in terms of the will.
  • Counsel argued that the present civil suit is a suit in person, while probate operates in rem and is binding on the public at large. In probate, notices are issued to the public at large and the Court can decide the issue then and there.
  • Shri Sethi has submitted that one of the properties under the will are located in Bombay, so the plaintiff must seek probate of the will. The learned counsel for the respondents submits that the suit is liable to be rejected as the appellant/plaintiff has preferred the suit without seeking probate of the will dated 07.08.2019.


  • Abhinav Malhotra and Shri R.S. Jaiswal, both experienced senior solicitors representing the appellant, have argued that the trial court's learned judge erred by incorrectly interpreting the Act of 1925's provisions, particularly Sections 57, 213, and 276 of the Act of 1925.
  • Counsel argued that a Will executed outside the local limits of the High Courts of Madras, Calcutta, and Bombay is not required to be probated and that none of the decisions cited by the appellant/plaintiff were taken into consideration.
  • The learned District Judge, Indore rejected the ‘plaint, arguing that the order should be set aside and the matter remanded. Shri Jaiswal relies on Supreme Court decisions in Kanta Yadav Vs. Om Prakash Yadav and others, Rupinder Singh Anand Vs. Gajinder Pal Kaur Anand 2015(4), and Shri Bishwanath Banik and another Vs. Smt. Sulanga Bose etc.
  • Shri R.S. Jaiswal, counsel for the plaintiff, argues that the property is located in Village Payanje, District Raigad, which does not fall within the local limits of Ordinary Original Civil Jurisdiction of the High Court of Bombay. This ground is not available to the respondents/defendants.


  • The High court held that in the case of Kanta Yadav (supra), it’s undisputed that the present National Capital Region Delhi was part of the erstwhile State of Punjab prior to November 1, 1966. Section 57 of the Act applies to properties and parties in Bengal, Madras, or Bombay, so it is not necessary to seek probate or a letter of administration when they are not located in those states. Section 213 of the Act states that no right as executor or legatee can be established in any Court of Justice.
  • Wills made by Hindus, Buddhists, Sikhs, and Jains of the classes specified in clauses (a) and (b) of section 57 must be made within the local limits of the High Courts at Calcutta, Madras, and Bombay, and outside those limits, in so far as they relate to immovable property situated within those limits. Thus, clause (c) is not applicable in view of Section 213(2) of the Indian Succession Act.
  • Section 213 of the Act applies only to Wills specified in clauses (a) & (b) of section-57 of the Act, and not to Wills falling within the classes specified in section-57 (c) of the Act. This means that if a Hindu property in the Central Provinces is claimed under a Will made by a Hindu, it is not a condition precedent to the enforcement of the claim that probate of the Will should be taken.
  • The court ruled that obtaining probate is not necessary for contesting or rival Wills, and the Civil Court's jurisdiction is not barred.
  • The Court found that the will in question dated 07.08.2019 is not required to be probated and that the District Judge, Indore, has erred in law in holding the suit is not maintainable. The trial judge also referred to various decisions cited by the plaintiff but did not deal with any of them related to the proper disposal of the application.
  • The property in District Raigad (Maharashtra) does not come under the High Court of Bombay's Ordinary Original Civil Jurisdiction, so the contested order is reversed, and the case is sent back to the District Judge for prompt resolution.
  • A fine of Rs.1 Lakh was slapped on the respondents for the waste of time of the court, which was to be paid into the High Court's employees' welfare account within two weeks. The appeal was subsequently allowed and was disposed of.


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