D.S. Dave, J.
1. This is a second appeal by Mst. Jadav against the judgment of the learned District Judge, Alwar, dated 24-8-1956.
2. The facts giving rise to it are that respondent No. 1 Ram Swarup obtained a money decree against respondent No. 2 Jai Govind and also against the assets of Jagdish Prasad, deceased husband of the appellant, which were in her possession. In execution of the said decree, the decree-holder got attached one-half portion of a Haveli saying that it belonged to Jagdish Prasad judgment-debtor. The appellant filed an objection petition under Section 47 C. P. C.
It was averred by her that the portion of the Haveli which was attached belonged to her personally and not to her husband. She based her claim on a will which was said to have been executed in her favour on 20-8-52 by her grand-mother-in-law Mst. Bhagwati, who according to the appellant, was the then owner of the property attached. The appellant's claim was contested by the decree-holder.
The executing court came to the conclusion that the execution of the will by Mst. Bhagwati in favour of Mst. Jadav was not proved and the objection petition was dismissed. Aggrieved by that order dated 17-3-55 Mst, Jadav filed an appeal in the court of the learned District Judge, Alwar, The learned Judge did not enter into the question whether the will was made by Mst. Bhagwati in Mst Jadav's favour and whether the property be-longed to Mst. Bhagwati. He dismissed the appeal on the preliminary ground that the will set up by the appellant was not probated and was not therefore admissible in evidence under S, 213 of the Indian Succession Act. In support of his view the learned Judge relied upon Balkishan v. Prabhu, 1950 Raj LW 258: (AIR 1950 Raj 27) and dismissed the appeal.
3. The respondents have not cared to appear in this Court and therefore the appeal has been heard ex parte.
4. Learned counsel for the appellant has urged that the learned District Judge has committed an error in law in holding that the will was not admissible in evidence under Section 213 of the Indian Succession Act. It is pointed out by learned counsel that the learned Judge failed to notice the provisions of Section 213 Sub-section (2) and that he was misled since he noticed only Sub-section (1). The contention raised by learned counsel appears to be correct. Section 213 of the Indian Succession Act runs as follows:
'213. (1) 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 or with a copy of an authenticated copy of the will annexed.
(2) This section shall not apply in the case of wills made by Muhammadans, and shall only apply in the case of wills made by any Hindu, Buddhist, Sikh or Jaina where such wills are of the 'classes' specified in 'clauses (a) and (b) of Section 57'.' It is clear from the plain reading of Sub-section (1) of Section 213, that it prohibits all persons from establishing in any Court of Justice their right as executor or legatee without obtaining a probate of the will or letters of administration under which the right is claimed from a court of competent jurisdiction in India. Sub-section (2) however makes it quite clear that Sub-section (1) would not apply in the case of wills by Muhammadans.
It further lays down that Sub-section (1) would apply only in the ease of wills made by a Hindu, ora Buddhist, or a Sikh or a Jain if the will or willsare covered by classes specified in Clauses (a) and (b)of Section 57. In other words, so long as a particularwill is not covered by Clauses (a) and (b) of Section 57,the question of the application of Sub-section (1) of Section 213 does not arise, Now, Section 57 runs as follows:
'57. The provisions of this Part which are set out in Schedule III shall, subject to the restrictions and modifications specified therein, apply-
(a) to all wills and codicils made by any Hindu,. Buddhist, Sikh or Jaina, on or after the first day of September 1870, within the territories which at the said date were subject to the Lieutenant-Governor of Bengal or within the local limits of the ordinary original civil jurisdiction of the High Courts of Judicature at Madras and Bombay; and
(b) to all such wills and codicils made outside those territories and limits so far as relates to immovable property situate within those territories or limits; and
(c) to all wills and codicils made by any Hindu, Buddhist, Sikh or Jaina, on or after the first day of January, 1927, to which those provisions are not applied by Clauses (a) and (b):
Provided that marriage shall not revoke any such will or codicil'.
A perusal of Clauses (a) and (b) of the said section will show that Clause (a) relates to those wills and codicils which are made by any Hindu, Buddhist, Sikh or Jain on or after the first day of September, 1870, within the territories which at the said date were subject to Lieutenant-Governor of Bengal or within the local limits of the ordinary civil jurisdiction of the High Courts of Judicature at Madras and Bombay.
Clause (b) refers to those wills and codicils which relate to immoveable property situated within the territories or limits mentioned in Clause (a), but which are executed beyond the limits of those territories. In the present case, it is not alleged by the respondent that the will was executed within the territories mentioned in Clause (a) or that the will relates to property situated within the territories mentioned in Clause (b). Thus, it is clear that the provisions of Sub-section (1) of Section 213 of the Indian Succession Act were not attracted.
This view finds support from Sunderlal and Teeja v. Nena, First Appeal No. 83 of 1952, D/-16-11-1954 by a division bench of this Court. The District Judge has committed a mistake in relying upon the decision in Balkishan's case, 1950 Raj LW 258: (AIR 1950 Raj 27), since that decision was given on the basis of the provisions of the Marwar Succession. Act and not of the Indian Succession Act. He was obviously in error in throwing out the will merely on the ground of its inadmissibility by applying Section 213(1) of the Indian Succession Act.
5. The appeal is, therefore, allowed. The order of the learned District Judge, Alwar, dated 24-8-1956, is set aside. Since the learned Judge has not applied his mind to the merits of the case, the case be sent back to him with direction to dispose of the matter after admitting the will into evidence. In other words, he should enter into evidence and decide whether the execution of the will in favour of Mst. Jadav is established by the evidence on record. The costs of this appeal will abide the result in the first appellate court.