Case Note & Summary
The petitioner, Vishnu Ramchandra Undage, was defendant no. 3 in a partition suit (R.C.S. No. 7/1994) filed by respondent no. 1 (plaintiff) against Ramchandra Undage (defendant no. 1), Kondubai Undage (defendant no. 2), and the petitioner (defendant no. 3) for partition and separate possession of ancestral properties. The trial court passed a preliminary decree on 29/4/2000 declaring shares: plaintiff, defendant no. 1, and defendant no. 3 each had 6/20th share, and defendant no. 2(1) and 2(2) each had 1/20th share. Partition of landed properties was directed through the Collector under Section 54 CPC. Defendant no. 1 (Ramchandra) died on 2/10/2000. The petitioner claimed that Ramchandra had executed a registered will dated 16/8/1996 bequeathing his share to the petitioner. In execution proceedings (Regular Darkhast No. 80/2002), the petitioner filed an application (Exh.-1) seeking allotment of the deceased's share based on the will. The executing court rejected the application, holding that the will was not probated and thus could not be recognized under Section 213 of the Indian Succession Act, 1925. The petitioner challenged this order by way of a writ petition. The High Court upheld the executing court's decision, holding that without probate, the will cannot be given effect to in execution proceedings. The court also noted that the executing court cannot go behind the preliminary decree or modify the shares declared therein. The petition was dismissed.
Headnote
A) Succession Law - Will - Probate - Section 213 Indian Succession Act, 1925 - Execution Proceedings - Petitioner claimed share of deceased father under a registered will in execution of a partition decree - Held that without probate, the will cannot be recognized by the executing court as it is not a document of title but only a mode of devolution (Paras 6-7). B) Civil Procedure - Execution of Decree - Preliminary Decree - Finality - Section 54 CPC - Execution court cannot go behind the decree or modify shares declared in preliminary decree - Held that the executing court cannot entertain a claim based on a will that was not part of the decree (Paras 6-7).
Issue of Consideration
Whether a legatee under a will can claim the testator's share in execution of a partition decree without obtaining probate under Section 213 of the Indian Succession Act, 1925.
Final Decision
Writ petition dismissed. The order of the executing court rejecting the petitioner's application is upheld. No order as to costs.
Law Points
- Will cannot be recognized in execution proceedings without probate under Section 213 of Indian Succession Act
- 1925
- Execution court cannot go behind decree
- Preliminary decree for partition cannot be reopened in execution
