1. One Shamsher Singh, a Hindu, died at Dehra Dun on 21-1-1946. A petition has been filed in this Court for probate of a will made by the deceased on 14-1-1944 whereof the petitioner is the executor named therein. A caveat against the grant of probate has been entered by Shrimati Dayali Devi, the widow of the deceased, who, inter alia, contends that the will of which the petitioner seeks to obtain probate is not the last will and testament of the deceased as it has been superseded by a later will made by the deceased on 4-1-1946.
2. When the matter came before me on 29-4-1947, Mr. R.C. Ghatak for the petitioner argued that it was not open to the caveator to contend that the will of 1944 was not the last will made by the deceased unless she herself applied for probate of the later will said to have been executed by the deceased on 4-1-1946; and with the consent of both parties the following preliminary issue was accordingly framed:
Whether the caveator can set up a later will of the deceased in answer to the present petition without propounding that will.
3. I have now heard arguments on this issue, and it appears to be the case that the point -is one not covered by any direct authority.
4. The caveator does not ask for, and does not want, probate of the will which she says was executed by the deceased in January 1946; all she desires is the opportunity of establishing by proof of the genuineness of that will that the will propounded by the petitioner is not the last will of the testator. The latter was, as I have said, a Hindu; the will relied upon by the caveator was made at Dehra Dun in the United Provinces, and it is admitted that it is not such a will as falls within one of the classes specified in Clauses (a) and (b) of Section 57, Succession Act. It is not therefore obligatory under Section 213 of that Act for probate of the will to be obtained before an executor or, a legatee can establish his right under the will, see Kanhaiya Lal v. Munni ('96) 18 All. 260, and it is consequently urged that there is no good reason why the caveator should be obliged to obtain probate as a preliminary step to opposing the issue of a grant of probate to the petitioner.
5. The petitioner relies upon the case in Venidas Nenidasf nemchand v. Bai Champavati ('29) 53 Bom. 829. In that case it was held by the Bombay High Court - I am citing the head note that if, on a petition for probate, the caveator sets up another will of the testator, it is obligatory upon him to file a separate petition to propound the will set up by him. At first sight this case decision is authority for the proposition relied on by the petitioner, but on closer examination it will, I think, be found that the case is distinguishable from that which I now have to consider. In Venidas Nenidasf nemchand v. Bai Champavati ('29) 53 Bom. 829 probate was sought of the last will of one Venmali Virji said to have been made by the deceased testator on 14-4-1925. As in the present case a caveat was filed by the widow of the deceased alleging that the will annexed to the petition was not the last will and testament of her deceased husband, inasmuch as it had been superseded by a later will which he had executed on 23-12-1926. On the petition coming on for hearing four issues were raised, the second and third of which were as follows:
(2) Whether the writing dated 23-12-1926, Ex. 1, to the defendant's affidavit is the last genuine will of the deceased?
(3) Whether probate should be granted of both the said writings or either of them; and if so, of which?
6. Now in endeavouring to determine the scope of effect of this case two considerations must be borne in mind. First, it appears not to have been doubted that both wills were wills to which the provisions of Section 213, Succession Act applied and that, therefore, it was necessary for a person claiming under either will to obtain probate thereof. Secondly, the caveator desired to obtain probate of the later will, and the two issues which are set out above were not considered separately but together, and the question, therefore, which the Court really had to decide was whether it could grant probate of a will set up by a caveator in answer to the petition without the caveator being required to file a separate petition in 'accordance with the rules of the Court. It was held, and, if I may say so with respect, I think rightly held, that no grant of probate of the later will could be made, unless a petition were filed, citations issued and the ordinary procedure followed. So also in the present case I think it is to be clear that the Court cannot direct a grant of probate of the will relied upon by the caveator to issue unless and until the latter files a petition there for and the usual procedure, including the issue of citations, is followed. But Venidas nemchand v. Bai Champavati 17 A.I.R. 1930 Bom. 29 is not, in my opinion, an authority for holding that in no circum. 'stances can a caveator set up a later will made toy the deceased testator for the purpose of proving that the will of which probate is sought by the petitioner is not, in fact, the last will and testament of the deceased. I think therefore that this case is distinguishable. If no application for probate of the earlier will of the deceased had been made by the present petitioner there can be no doubt that the widow of the deceased, : Shrimati Dayali Devi, could have established such right as she has as legatee under the subsequent will without being obliged first to obtain a grant of probate thereof from a Court of competent jurisdiction; and to my mind it is illogical to hold that the law nevertheless requires her to apply for probate of that will before she can oppose the grant by the Court of probate of an earlier will. The matter is one which is not free from difficulty, but in my opinion both on principle and convenience Shrimati Dayali Devi is not required to apply for a grant which she does not want, and I accordingly answer the preliminary issue in the affirmative. Costa will be costs in the cause.