Syndicate Bank vs Soji Chacko and Others

P.K. Balasubramanyan, J.—The Appellant before me is the first Defendant in a suit for recovery of possession of a building. The building belonged to one Chacko. Chacko let out the building to the first Defendant under Ext. A-1 dated 18th November 1988. The tenancy commenced from 1st November 1987. It was for a term of 5 years. The rent payable by the tenant was Rs. 750 per month. The lessee had the option to determine the lease before the expiry of the term. There was no option to renew in the lessor or in the lessee. The building is situate in an area to which the Kerala Buildings (Lease and Rent Control) Act has not been extended.

Chacko, the landlord died in June, 1990. The term of the lease expired on 31st October 1992. The Plaintiff, one of the children of Chacko, being his daughter, issued a notice Ext. B-2 to the tenant offering to renew the lease for a period of five years in case the tenant was willing to offer the enhanced rent claimed by her. The tenant, a Nationalised Bank, is seen to have adopted a policy of being "penny wise and pound foolish". It offered a meagre enhancement of rent, I must say, without reference to the realities of the situation. The Plaintiff naturally did not accept that proposal and issued Anr. notice Ext. B-3 dated 15th March 1993 informing the tenant that the rent suggested by the tenant was too meagre and if the tenant were willing to pay rent at least at the rate of Rs. 2 per square feet, she would agree to a renewal. The tenant and its officers concerned having adopted what counsel for the Plaintiff called an unreasonable attitude in the matter of enhancement of rent, the Plaintiff sent Anr. letter Ext. B-4 dated 17th April 1993 informing the tenant that she could not accept the sum of Rs. 937 which was being offered as rent, that she would be accepting rent from the tenant only after a proper rent is agreed to by the tenant. Then, the Plaintiff filed a suit O.S. 112 of 1994 for eviction of the tenant which she later withdrew with the leave of court with permission to file a fresh suit. Thereafter the Plaintiff filed the present suit on 24th November 1994 claiming that she was entitled to recover possession of the building on the expiry of the term on the ground that she has become the exclusive and absolute owner of the building on the strength of a Will executed by Chacko, the original owner of the building with whom the tenant had entered into the tenancy arrangement. She also impleaded the other heirs of Chacko, her mother and siblings as Defendants 2 to 8 in the suit. The first Defendant raised various contentions, one among which was that since the Plaintiff was claiming exclusive title to the building on the strength of a Will executed by Chacko, the owner of the, building, the Plaintiff could not establish the right tor recover possession of the building in the absence of the probate of the Will. Section 213(1) of the Indian Succession Act was put forward as a bar to the entitlement of the Plaintiff to claim recovery of possession on the strength of her exclusive ownership over the building. Defendants 2, 6 and 7 filed a written statement admitting the exclusive right claimed by the Plaintiff. Defendants 3 and 4 also filed a written statement admitting the Will set up by the Plaintiff.

The trial Court held on issue No. 4 that since the Plaintiff was not claiming a declaration of title with respect to the property allotted to her under the Will and was only seeking recovery of possession from a tenant of the building, it could not be held that she cannot maintain the suit without probate of the Will. The trial court further held that a decree for eviction of the first Defendant-tenant, a Nationalised Bank would result in hardship to the tenant as well as to the people of the locality and since the Plaintiff did not have a case that she bona fide needed the building for her own occupation, the suit need not be decreed. Thus the suit was dismissed by the trial court. The Plaintiff filed an appeal. The lower appellate court held that since the Kerala Buildings (Lease and Rent Control) Act had no application, there was no obligation on the Plaintiff to plead and establish any bona fide need for own occupation, that on the expiry of the term and on termination of the tenancy, the tenant was bound to vacate and the reasons given by the trial court for refusing the Plaintiff relief were untenable. The appellate court did not consider the effect of the absence of probate of the Will set up by the Plaintiff in support of her exclusive title to recover possession of the building. The lower appellate court thus granted the Plaintiff a decree for recovery of possession. This Court admitted this Second Appeal by the tenant on the questions of law formulated in the Memorandum of Second Appeal and also on the question whether without production of a probate of the Will said to have been executed by Chacko bequeathing the property in question to the Plaintiff, the Plaintiff would be entitled to seek recovery of possession of the building on the strength of her title under that Will.

The main contention urged in the Memorandum of Second Appeal is regarding the invalidity of the original transaction of lease entered into by Chacko and the then Branch Manager of the tenant Bank. Even if the lease was void as contended by the tenant, the term of the lease having expired, the tenant would not be entitled to plead that he is entitled to continue even after the expiry of the term. At best, the tenant could seek the protection of Section 53A of the Transfer of Property Act and that protection can enure only for the term agreed upon by the parties in the void lease. (See in this connection the decision of the Supreme Court in Technicians Studio Private Ltd. Vs. Smt. Lila Ghosh and Another, . The next contention sought to be raised is that even though the Kerala Buildings (Lease and Rent Control) Act was not applicable, whether there was not an obligation on the owner of the building, the landlord to establish the existence of a ground under that Act. Obviously there is no such requirement in a case where the Act has no application. Another question sought to be raised is whether the notice Ext. A-2 purporting to terminate the tenancy was proper. No serious infirmity was brought to my notice in the notice with the result that it cannot be said that there is any substance in that contention as well. Moreover, the term of the lease had expired and the parties could not thereafter agree on a rent for the continuance of the tenant in the building. There was therefore no coming into existence of a tenancy by holding over after the expiry of the term stipulated in the rent deed. In such a situation the tenant stood terminated by efflux of time and no further termination or no further notice to quit is needed. There is therefore no merit in that contention as well.

The only question then arising for decision is whether the Plaintiff having claimed exclusive title over the building and the exclusive right of the landlord by virtue of a Will which has not been probated, the decree for eviction in her favour could be sustained. There is no dispute that the Will has not been probated. There is also no dispute that going by Section 213(1) of the Indian Succession Act, the Will required to be probated. What is contended by learned Counsel for the Plaintiff is that by virtue of the Indian Succession (Kerala Amendment) Act, 1996 which came into force on 14th March 1997, subsequent to the decision of the lower appellate court the bar created by Section 213 does not any longer operate and in that circumstance the Plantiff is entitled to a decree on the strength of the Will set up by her. Section 213 of the Indian Succession Act clearly provides that no right as executor or legatee can be established in any court of justice unless a court of competent jurisdiction in India has granted probate of the Will under which the right is claimed or has granted Letters of Administration with the Will annexed. Sub-section (2) of Section 213 provided that this section shall not apply in case of Wills made by Mohammedans. By the Kerala Amendment Act, 1996 what was done was to add in Sub-section (2) of Section 213 after the word ''Mohammadans'' the words ''or Indian Christians'' so that the Sub-section after the amendment on 14th March 1997 states that this section shall not apply in case of Wills made by Mohammedans or Indian Christians. The question is whether this amendment which came into effect on 14th March 1997 can be considered to be retrospective so as to affect pending business and pending suits. It can be seen that what has been done is only to insert in Section 213(2) of the Act the words ''or Indian Christians''. There is no intention expressed in the Amending Act or in the amended provision that the amendment has retrospective effect or that it is intended to affect pending proceedings or concluded transactions. Learned Counsel for the Plaintiff contended that all that Section 213 of the Act created was only a procedural bar to the establishing of a right based on a Will in the absence of a probate and consequently the amendment brought about by the Kerala Amendment Act, 1996 has retrospective operation dispensing with the requirement for production of a probate or Letters of Administration and consequently the Plaintiff cannot any more be non-suited by relying on Section 213(1) of the Act. The question is whether this submission on behalf of the Plaintiff could be accepted.

In Sheonath Singh Vs. Madanlal and Another, , the Rajasthan High Court in dealing with the effect of extending the Act to Jaipur in relation to Section 213 of the Jaipur Succession Act which governed the parties till the extension of the Act, considered the ambit of Section 213 of the Indian Succession Act. The learned Judge held,

As I understand the provisions contained in Section 213 whether of the Jaipur Act or of the Indian Act, it clearly seems to me that that section does not vest any right or rather any substantive right in any body. What it really does is to regulate the mode of proving a Will, that is, procedure.

The court held that Section 213 of the Act had nothing to do with the vesting of the estate on death of a testator. The court observed

What Section 213 really does, in my opinion, is that it lays down a rule of procedure, that rule being that a person seeking to establish his right in any court of justice as executor or legatee under a Will must have obtained the probate of the Will under certain circumstances mentioned in the section. Again the section precludes the ''establishment'' of a right as executor or legatee in a court of justice but does not affect the right as such for which we must indeed look elsewhere. It also seems to me that where such a right may not come up for being established in a Court of law the want of a probate need not and would not affect the right of a legatee under the Will.

There is authority for the proposition that an executor even before he proves the Will may lawfully take into his hands any of the testator''s effects, may pay his debts and receive payments due to him and may sell his goods, in his discretion and that although the executor should die having done any of these acts but before proving the Will, his acts so done stand good. Again, the rule in question does not preclude the use of a Will which is unprobated as evidence for a purpose ether than the establishment of a right as executor or legatee. I am categorically of the view, therefore, that Section 213 lays down a rule of procedure and not of substantive law.

It was pending suit in that case that Section 213 of the Indian Succession Act was extended to Jaipur and it was in that context that the court took the view as indicated above. That decision was essentially based on the conclusion that vesting of title in a legatee on the death of a testator is not postponed until the Will is probated. The decision of the Bombay High Court in Raichand v. Jivraj AIR 1932 Bom 13 to the effect that the grant of a probate of a Will is not a condition precedent to the institution of a suit by a person claiming as a legatee and the executor or legatee may institute a suit without obtaining probate, but he will not be allowed to establish his rights or in other words he would not be entitled to a decree unless probate is granted to him before the parsing of the decree was relied on. The view of the Calcutta High Court in Chandra Kishore Roy v. Prasanna Kumari ILR 38 Cal 327 was also referred to. The decision of the Calcutta High Court was also to the effect that probate of the Will had to be obtained by a legatee only before the actual passing of the decree and the fact that the probate was obtained pending the suit Would not in any manner affect the right of the legatee to a decree. It is on this basis and taking the view that no one has a vested right in procedure that the learned Judge of the Rajasthan High Court made the observations quoted above. In Geevarghese Geevarghese and Another Vs. Issahak George and Others, His Lordship Justice V.R. Krishna Iyer (as he then was) held that even if no plea were taken, a court should not allow the probate u/s 213 of the Act to be by-passed. His Lordship also held that the Travancore Wills Regulation Act will not help the party because Section 213 of the Act is procedural and not substantive and the provision applies to Wills of anterior dates even if registered under Travancore Wills Regulation Act. His Lordship referred to the decision of the Supreme Court in Mrs. Hem Nolini Judah (since deceased) and after her Legal Representative Mr. Marlean Wilkinson Vs. Isolyne Sarojbashini Bose and Others, stating that the said decision "more or less supports the approach" made by the learned Judge. What was in fact held by His Lordship was that even if no objection based on Section 213 of the Act was raised, no decree could be granted to a legatee who had not obtained the probate of a Will. In Blackwood and Sons v. Parasuraman AIR 1959 Mad 410 His Lordship Justice Rajagopala Ayyangar (as he then was) stated that in that case the Plaintiff''s failure to obtain an ancilliary probate u/s 228 of the Succession Act was a bar u/s 213 of the Act to the confirment of the right claimed by him in the suit. During the course of the discussion a statement was made that Section 213 of the Act indicates a rule of evidence and constitutes the procedural requirement of the lex fori. In Mrs. Hem Nolini Judah (since deceased) and after her Legal Representative Mr. Marlean Wilkinson Vs. Isolyne Sarojbashini Bose and Others, Letters of Administration of the Will have been obtained, whether that right is claimed by the person as a Plaintiff or as a Defendant. It was held that the restriction contained in Section 213 of the Act was not confined only to persons directly claiming as legatees and that it bars whosoever wishes to establishes a right under a Will.

What is clear from these decisions is that no court could grant a decree to a legatee claiming on the strength of a Will which is not probated even though the vesting of title in the legatee is not postponed until the obtaining of the probate and the legatee need produce the probate of the Will relied on by him in the suit only before the decree is actually passed. In other words there is no insistence that the probate should have been obtained before the institution of the suit itself. A question may therefore arise whether, even if the Kerala Amendment is not held to be retrospective, the Plaintiff could not be granted a decree by this Court in this Second Appeal, if it is found that she had proved the alleged Will in this suit by adducing the required evidence.

I shall first consider whether the Kerala Amendment can be held to be retrospective. In the statement of objects and reasons for the Amendment Bill, it was stated that as probating of Wills is a time consuming process and also such a procedure is compulsory to the Wills executed by Christians it has been decided to bring in, a State amendment to Sub-Section 2 of Section 213 of the Indian Succession Act by adding the word ''Indian Christians'' after the word ''Muhammadans''. As I noticed already the amendment is only by way of an insertion of the words ''Indian Christians''. The mere addition of the words incorporating Anr. class of exemption without anything more can be considered to be only prospective. That would mean that from the date of the insertion of the words ''Indian Christians'' in Sub-Section 2 of Section 213 of the Act need for obtaining of a probate or Letters of Administration of a Will executed by an Indian Christian is not to be insisted upon. It is clear that the said protection will be available to those litigants who invoke the jurisdiction of the court to establish a right under a Will, subsequent to the date of the insertion. But in the absence of anything to indicate that it is intended to operate retrospectively, it cannot be held that the amendment has retrospective operation.

But an amendment which brings about only an alteration in procedure, can still act retrospectively. The Supreme Court has indicated in Mrs. Hem Nolini Judah (since deceased) and after her Legal Representative Mr. Marlean Wilkinson Vs. Isolyne Sarojbashini Bose and Others, that Section 213(1) of the Act precludes a court from granting relief to a litigant who seeks to establish a right under a Will, unless probate has been obtained for the Will. The right to get a relief is not a mere matter of procedure. The right to sue (See Mani Iyer v. Azhakan ILR 1972 Ker 248) and the right of appeal (See State of Bombay Vs. Supreme General Films Exchange Ltd., are vested rights. Even the right to a forum could be a vested right. (See Garikapatti Veeraya Vs. N. Subbiah Choudhury, ). In my view, a right to relief if grounds are made out in support of it at the trial, is also an accrued or vested right, the said right having accrued to the litigant on his filing the suit. As observed by the Supreme Court, normally a litigant is entitled to relief on the day he approached the court for relief. (See Rameshwar and Others Vs. Jot Ram and Another, . The bar to the grant of a relief to him as the one enacted in Section 213(1) of the Act cannot be said to be merely procedural. It bars the grant of relief to a Plaintiff (even to a Defendant, if it comes to that) and such a bar cannot be held to be merely procedural. The removal of such a bar, in my view, cannot be considered to be merely procedural. It is therefore not possible to hold that the Kerala Amendment is merely procedural and hence retrospective and consequently must be applied to suits instituted prior to the amendment.

In our processual jurisprudence, an appeal is a rehearing of the suit. A litigant can therefore show with reference to an amendment to the statute that on the day his appeal is heard, he is entitled to relief or that no bar then exists to the grant of reliefs to him. The suit here is pending in Second Appeal, though at the instance of the first Defendant. At the hearing of the appeal the Plaintiff-Respondent is entitled to exhort the court to take note of the amendment, be it prospective, and to grant him relief on the basis that the legislature has removed the bar to the grant of reliefs to him by the amendment. This Court therefore is bound to take note of the amendment that was introduced pending the litigation and to decide whether the bar to the grant of relief to the Plaintiff now subsists or has been removed. If the bar u/s 213(1) of the Act were to the institution of the suit itself, it might not have enabled the Plaintiff to seek relief on the basis of this amendment. But since the bar, as indicated by the Supreme Court in Mrs. Hem Nolini Judah (since deceased) and after her Legal Representative Mr. Marlean Wilkinson Vs. Isolyne Sarojbashini Bose and Others, and the other decisions referred to is only to the grant of a decree, the Plaintiff can take advantage of the prospective amendment and request this Court to grant her relief on the plea that the bar to relief does not any more subsist. The Plaintiff would be entitled to relief from this Court on the strength of the Will if she had proved the Will in the present suit as required by law.

But the Plaintiff has neither produced the alleged Will nor proved its due execution. Therefore it is not possible to grant any relief to the Plaintiff in this case as the legatee under a Will said to have been executed by Chacko, the original owner-lessor of the building.

Though the Plaintiff set up exclusive title under a Will and claimed relief, she has impleaded all the legal heirs of Chacko in the suit. The other heirs are Defendants 2 to 8. On the death of Chacko, in the absence of proof of any Will, the rights over the building would devolve on all his heirs in a body. The first Defendant is only a tenant, let into possession by Chacko. The term of the lease has expired. There was no holding over, since there was no consensus ad idem. The parties could not agree to the rent payable by the tenant to the landlord. The suit is for recovery of possession of the building from the tenant, the period of whose lease has expired. All the heirs of the owner-landlord of the building who died subsequent to the grant of the lease, are on the array of parties. The other heirs have pleaded that they are willing to a decree for eviction being paised in favour of the Plaintiff in the present suit. In such a situation, a decree can be granted in favour of all the heirs of Chacko including the Plaintiff. Since the Plaintiff has failed to prove the Will set up by her as the source of her exclusive title, she cannot be granted a decree as was done by the lower appellate court. But, a decree can be granted in favour of all the heirs of Chacko since all of them are on the party array. The decree of the lower appellate court granting a decree to the Plaintiff alone has to be modified and a fresh decree, has to be passed granting a decree to the Plaintiff and Defendants 2 to 8 together for recovery of the plaint schedule building with future rent and costs of the suit in the trial court and the first appellate court, leaving the parties to suffer their respective costs in this Court.

In view of the conclusion as above, the Second Appeal is substantially dismissed but with a modification in the decree by vacating the decree in favour of the Plaintiff alone and granting a decree for recovery of possession to the Plaintiff and Defendants 2 to 8 together with a decree for future rent as granted by the lower appellate court. The first Defendant will also be liable for the costs of the Plaintiff in the trial court and in the lower appellate court. The parties will suffer their respective costs in this Second Appeal.