V.R. Krishna Iyer, J.
1. These three appeals relate to the same properties and are being fought between the same parties. The 1st defendant (I speak with reference to O. S. No. 106 of 1961) is the appellant and claims to be the mortgagee of the properties covered by S. A. No. 784 of 1967 and his wife, being the mortgagee of the properties covered by S. A. No. 785 of 1967 is the appellant therein. The 1st defendant is the donee under Ext. D7, to set aside which O. S. No. 106 of 1961 was brought, and S. A. No. 991 of 1966 relates to that suit. The properties covered by Ext. D7 gift were claimed by the donor, the 2nd defendant, to be her own and although she has died after filing her written statement, the 1st defendant sustains the same plea and stands to benefit by Ext. D7 being held valid. Himself and his wife being mortgagees in possession, resisted the actions for redemption brought by the plaintiff, on the ground that the plaintiff is not the owner of the equity of redemption under the will, Ext. P1 (original is Ext. D3).
The same plaintiff in O. S. No. 106 of 1961 seeks to set aside the gift, Ext. D7, claiming to be the owner of the, properties covered by that deed. Thus, all the three suits are brought by the plaintiff on the basis that he is the owner under a will, Ext. P1, executed by one Cherian Daniel, the husband of the 2nd defendant. The precise claim of the plaintiff is that Cherian Daniel and his widow, the 2nd defendant, together executed Ext. D3 as early as 17-12-1919 in favour of the plaintiff's father, Simon Isaac, the nephew of Daniel. Simon Isaac in turn executed Ext. P6 of 1107 in favour of the 1st plaintiff, the eldest son, and by some internal arrangement among the sons of Isaac, the 2nd plaintiff also claims rights in the properties.
Thus, plaintiffs 1 and 2 assert ownership of the properties in the schedules to the three suits, virtually on the strength of Ext. D3. The defendants repudiate this right based on the contention that Ext. D3 is inoperative containing no dispositive words and that if that deed is to be construed as a will there is an additional barrier in the way of the plaintiff getting a decree because no probate has been taken out as required by Section 213 of the Indian Succession Act. The trial court took the view that Ext. D3 was a settlement deed or a gift and decreed all the suits in favour of the plaintiff.
The appellate court departed from the construction of Ext. D3 a gift and held that it was a will but even as a testamentary deed it conferred rights on the plaintiffs' father, Isaac, and so, confirmed the decrees. The contentions put forward before me will depend, for their fruitfulness, upon a construction of Ext. D3. If it is a gift or a settlement deed, as argued by respondents' counsel, the decree must stand confirmed. On the other hand, if it is a will, as held by the learned District Judge, then the objection on the basis of Section 213 of the Indian Succession Act may have to be considered. There is a third point raised now that there is no finding that the properties belonged to Daniel as against the wife, the 2nd defendant, and that, therefore, the decrees granted could not be confirmed because only the properties of Daniel could be derived by the plaintiffs' father, Isaac, even on the terms of Ext. P1 read as a will, since the 2nd defendant has transferred her properties while alive. I will consider these three contentions briefly.
2. Ext. D3 was jointly executed by the husband and wife, Daniel and the 2nd defendant, and at the threshold, one has to consider whether there are any dispositive words used in the deed so as to convey the rights covered by it. While there is considerable force in the contention of the appellant that there are no such words, I am not inclined to frustrate the purpose of Ext. D3 unless I am compelled to do so by the total lack of the necessary words of disposition. The following excerpt from Ext. D3 is useful to gather the intention of the executants.
( Editor: The vernacular matter printed hereunder has been omitted).
3. If, as I have hesitantly held, there are operative words of transfer, the further question arises as to the nature of the deed. The trial court held it to be a gift but in appeal it was held to be a will. Full freedom has been given to dispose of the properties as he liked during his lifetime to the first executant and rights in others would arise only on his death. No other party who is supposed to derive rights has joined the execution of the document and no words of vesting of interest in praesenti in others are discernible. The result is that the construction of the learned District Judge that Ext. D3 is a will has to be preferred. I do so.
4. Two further questions have been debated at some length at the bar. If Ext. D3 is a will, it can operate only in so far as the properties have not been transferred during the lifetime of the testators, who are Daniel and the 2nd defendant. From the document itself, it is seen that it covers properties also of the 2nd defendant. She has since executed gift deeds and to that extent the will cannot operate in regard to her assets. Therefore, it becomes necessary to find out whether the suit properties claimed by the 1st plaintiff under the will belonged to Daniel or to the 2nd defendant in whole or in part. If the latter had any right in those items and if she had conveyed them during her lifetime, to that extent, no right could be claimed under Ext. D3 by the 1st plaintiff. In this connection, it has been argued by the counsel for the respondents that the 1st defendant had no case that the properties did not belong in entirety to Daniel. He has relied, in this connection, upon paragraph 4 of the plaint and upon paragraphs 2 and 4 of the 1st defendant's written statement. He has also relied upon the recitals in Ext. P4, a written statement filed by the 2nd defendant in another litigation wherein there is pointed reference to the present suit properties as those of Daniel. Exts. P7 and P8 have also been relied upon by him to make out that the 2nd defendant had always proceeded on the footing that she acquired rights over the suit items only under Ext. D3 from her husband. I am not prepared to accept this plea straightway while appreciative of its force. For one thing, Ext. D3 itself contains recitals strongly suggesting that many of the properties, if not all, belonged to the 2nd defendant on account of the acquisitions being in her name and also on account of her husband, Daniel, having gifted some items to her. Very probably, Ext. D3 covered some items belonging to Daniel and some to the 2nd defendant. Moreover, paragraph 2 of the plaint at least suggests that the 2nd defendant had acquired rights in the plaint schedule properties through x x x
( Editor: The vernacular matter printed hereunder has been omitted).
5. There is one more question which has been argued and which I should decide even here. Section 213 of the Indian Succession Act provides that no right as legatee can be established in any court unless a court of competent jurisdiction has granted probate of the will under which the right is claimed. This section creates a bar to the establishment of a right under a will by a legatee unless probate has been obtained. Counsel for the appellant urges, relying upon AIR 1962 SC 1471, that Section 213, Sub-section (1) clearly forbids the assertion of ownership by the 1st plaintiff in the suit since no probate has been obtained and produced into court. It must be said, in fairness to the plaintiff, that no such plea had been taken in the courts below. Even so, it was the obligation of the District Court, which construed Ext. D3 as a will, to see that Section 213 was not bypassed. The point, therefore, falls for consideration whether, without a probate of the will being obtained, the present suit is maintainable.
6. Counsel for the respondent drew my attention to Sections 16 and 22 of the Travancore Wills Regulation 6 of 1074 under which a will may be proved by showing that it has been deposited as provided under Part 9 of the Wills Act or by registration or by producing a probate. If the will is to take effect as a testamentary disposition, it is enough if it is proved in the manner indicated in Section 16 read with Section 22. (18 TLT 528 is authority). In the present case, Ext. D-3 has been registered and so, if the Travancore Wills Act applies, the plaintiff is not precluded from establishing his will without a probate, but the said Regulation 6 of 1074 was repealed by the Part B States (Laws) Act, 1951 which came into force on 1-4-1951. However, the said repeal does not affect the previous operation of any law so repealed or anything duly done thereunder, nor any right acquired under the law. Therefore, counsel for the plaintiff argues that he had acquired rights under Ext. P6 from his father, Isaac, long before the repeal of Travancore Act 6 of 1074. That was a time when no probate was obligatory since the will was a registered one. Therefore, he contends that in the present suit, Section 213 of the Indian Succession Act cannot be put against him. Counsel for the appellant counters this contention by stating that the crucial date to apply the law is when a will is sought to be proved not when it was made or became operative. After the Indian Succession Act became applicable to the Travancore area. Section 213 had operation even regarding wills of a prior period. This depends upon the scope and applicability of Section 213 of the Indian Succession Act.
7. In my view, Section 213(1) governs this matter. When it says that no right can be established in any court unless a court of competent jurisdiction in India has granted probate of the will under which the right is claimed, it really lays down the exclusive manner of establishing a right under a will. In short, it is processual and not substantive and, therefore, applies to wills of anterior dates which are sought to be proved on a posterior date. It may inflict hardship for a legatee who claims under a will which has been registered in compliance with the Travancore Wills Act long ago, but the law that applies being the one that prevails when the right of the legatee is sought to be established in court, the application of the Indian Succession Act cannot be inhibited. Indeed, the decision in AIR 1962 SC 1471 more or less supports this approach. I therefore hold that the appellate court when it found that Ext. D3 was a will and not a gift should have insisted upon the will being probated before a decree wag granted.
8. For the aforesaid reasons let me summarise my conclusions. Ext. D3 is a will, not a gift. It confers a life interest on the 2nd defendant in regard to properties which belonged to her husband Daniel. It did not prevent the 2nd defendant from transferring her rights in property before her death since Ext. D3 is only testamentary and contains words of disposition to take effect after the death of the testator. I further hold that if all or any of the plaint schedule properties or any interest therein belonged to the 2nd defendant she was free to transfer it under Ext. D7 to the 1st defendant and that, to that extent, Ext. D7 should not be set aside. But to the extent to which Ext. D7 included properties which belonged to Daniel at the time of his death, the said deed (Ext. D7) is invalid and is liable to be set aside. In the light of Section 213 of the Indian Succession Act I take the view that a probate of the will Ext. D3 is necessary. On these holdings, I set aside the decree of the appellate court and direct it to reconsider whether any part of the properties covered by the plaint schedule belonged to the 2nd defendant. To that extent, Ext. D7 will be upheld. I further direct the appellate court to pass a decree in favour of the plaintiff in all the three suits in the light of my findings and observations above and subject to the production of the probate granted by a competent court for the will, Ext. D3. The appeal is allowed to the limited extent indicated above and the case remitted to the lower appellate court for a fresh disposal according to law.