1. This appeal raises a short point as to whether a Probate Court could go into the question of the possible effect which a Will if given effect to might have as respects the provisions of the Bombay Tenancy and Agricultural Lands Act regarding the sale of land to a non-agriculturist.
2. The villagers of Supe Khandu Khairayachi Wadi. Taluka Baramati. District Poona claiming to be the executors of the Will of one Tanubai made an application under S. 226 of the Indian Succession Act for grant of Probate of the Will in the Court of Civil Judge, Senior Division, Pune. He framed as many as eight issues covering the entire spectrum of the dispute regarding the alleged fraud practised on the testatrix. Regarding the validity of the Will he framed an issue 5A as follows :--
'Whether the Will in question is valid and legal in view of the provisions of the Bombay Tenancy and Agricultural Lands Act?'
3. Treating this issue as a preliminary one, the Court found that if the provisions of the will are given effect to, it should run counter to the provisions of S. 63(1) of the Bombay Tenancy and Agricultural Lands Act inasmuch as the property will be bequeathed to a deity which cannot be called as an agriculturist.
4. As a clear from S. 227 of the Indian Succession Act, that the probate of a Will when granted establishes the will from the death of testratrix. It is trite law that the effect of the Will is not conclusive against the whole world in regard to the right of the testatrix to dispose of the property concerned. That is to say, the question whether the testatrix could or could not bequeath the property in question to a deity in view of the mandate of S. 63(1) of Bombay Tenancy and Agricultural Lands Act-as she purported to do -cannot be a matter which can be gone into in probate proceedings.
5. In these premises the appeal is allowed and the order of the learned Civil Judge, Senior Division, Pune dismissing the application is set aside. The matter is remanded to the lower Court for proceeding with the matter in accordance with law. The costs to be costs in the cause.
6. Appeal allowed.