1. This is a second appeal in a suit for declaration by the plaintiffs who have been unsuccessful in both the courts below.
2. The dispute between the parties relates to the property of one Kanyalal Bagani who died at Phalodi in the year 1937. It appears from the plaint that the plaintiffs Tansukhdas and Meghraj were challaned by the police for stealing the property of the deceased Kanyalal. They were convicted by the Chief Court of the former State of Jodhpur under Section 411 of the Marwar Penal Code and sentenced to pay a fine of Rs. 2,000/-.
It was further ordered by that Court that the property in dispute would be returned to the present respondent Mt. Soni unless the plaintiffs-appellants could prove their right to that property in a civil court. Accordingly the plaintiffs filed the Present suit in the court Of the Judicial Superintendent Phalodi on 15-5-1942. It was averred by them that they were uncles of the deceased Kanyalal, while defendant Mt. Soni was the widow of Bhagwandas, a pre-deceased son of Kanyalal, that she was only entitled to maintenance, that she had no right of inheritance in the presence of the plaintiffs, that the deceased Kanyalal had not left any will in the defendant's favour as claimed by her and therefore, they requested the court to give a declaration in their favour that they were entitled to get the property which was in the custody of the Magistrate First Class Phalodi and which was mentioned in the Schedule given with the plaint.
3. The appellants' suit was contested by the respondent on the ground that the deceased Kanyalal had made a will at Madras where he was carrying on business, that it was duly registered, that by the said will, the appellants were not entitled to get the property in d spute and their suit was fit to be dismissed. The following issues were framed by the trial court:
(1) Whether the will Ex, D. 1 was executed for the deceased Kanyalal.
(2) In case the will Ex. D. 1 is proved to have been executed by Kanyalal, whether it is invalid and void against the plaintiffs.
(3) Whether the property mentioned in Schedule A belongs to the plaintiffs.
(4) In case the property mentioned in Schedule A is proved to belong to the deceased Kanyalal. whether the plaintiffs are entitled to inherit it and whether they are his legal heirs.
(5) Whether the court-fee paid is insufficient
4. After recording evidence of both the parties, the trial court decided all the issues against the plaintiffs and dismissed the suit on 18-8-1949. Being aggrieved by that judgment, the plaintiffs went in appeal but it was dismissed by the Judge, Additional District Court, Jodhpur, on 21-11-1950, and hence they have come to this Court.
5. It would not be out of place to mention here why this appeal has taken so much time. One of the arguments of the appellants in the first appellate court was that the will was not probated and hence under Section 213 of the Marwar Succession Act, the respondent could not establish her right as a legatee. That argument was repelled by the first appellate court. The same contention was. however, raised again in this Court. It appears that on 5-3-1951, the case came for hearing before a Division Bench of this Court.
At that time, it was pointed out that an application for probate was pending in the court of the District Judge. The appeal was, therefore, kept pending and the District Judge was directed to decide that matter as early as possible and intimate his decision to this Court. On account of several reasons which need not be set out here, the learned District Judge could not decide, the application for probate earlier. It was on 28-1-1956 that he allowed the application and ordered grant of the probate and so this appeal has now tome for hearing before us.
6. Before we proceed to decide the points which have been raised before us in appeal, it would be proper to set out the pedigree which shows the relationship of the parties.
| | | |
Bachhraj Tansukhdas Chimaniraj Meghraj
| (Pltff.) (Pltff.)
Bhagwan Das (Predeceased son)
Mt. Soni Widow (Dolt.)
7. The above pedigree is not in dispute between the parties. It would appear therefrom that the appellants are uncles of the deceased Kaniyalal while the respondent is the widow of Kaniyalal's predeceased son Bhagwandas. According to the custom, which was prevailing in Marwar at the time when succession to Kaniyalal's property had opened in 1937, his pre-deceased son's wife could not inherit the property in preference to the appellants and, therefore, if Kaniyalal had not made any will, the appellants would have certainly been entitled to get his property.
Their claim has been contested by the respondent on the basis of Kaniyalal's will in her favour and. therefore, the main point for determination before us is whether the appellants are not entitled to get the property on account of the said will, as held by the courts below. It may be pointed out here that from the judgment of the first appellate court, it appears that the appellants had also urged in that court in the alternative that Kaniyalal was member of their joint Hindu family and that they were entitled to get his property by survivorship. It was also urged that the property was their own and not that of Kaniyalal.
The last point was taken in the trial court also. Both the courts have held that the property in dispute did not belong to the appellants and that being a decision of facts, it has not been challenged in this Court. The appellants' contention about their right of survivorship was repelledby the first appellate court on the ground that they had nowhere alleged in the plaint that Kaniyalal deceased was a member of their Joint Hindu, family.
It appears that they had requested the first appellate court for permission to amend the plaint on that ground, but it was also refused. One of the grounds which was taken in the memorandum of appeal in this Court was that the first appellate Court had committed an error in not allowing the amendment sought by the appellants, but this argument has not been pressed before us at the time of arguments. Even if it were pressed, we would not have allowed it for reasons given by the first appellate court, which need not be repeated,
8. Now, the first contention which has been raised by learned counsel for the appellants is that the learned District Judge had no jurisdiction to grant the probate and, therefore, it is of no avail to the respondent, I is next urged that without) a probate, the respondent could not establish her right in view of the provisions of Section 213 of the Indian Succession Act. Lastly, it has been urged that even if this Court comes to the conclusion that the probate wag not necessary, the will was invalid because it was not properly attested.
9. So far as the first point is concerned it would suffice to say that we have heard another appeal (No. 18 of 1956) which was preferred by the appellant Megh Raj against the order of the District Judge dated 28-1-1958 granting probate and we have held that he had no jurisdiction to grant the same. Learned counsel, who has appeared for the respondent in this case, also appeared in the said appeal against the appellants. He has not raised any new argument in this appeal and, therefore, it would be futile to repeat in this case the same arguments which we have given In the other appeal. The result of our decision in the other appeal is that the deceased Kaniyalal's will stands unprobated.
10. We have next to determine whether the respondent is debarred from establishing her right under the said will on account of the absence of probate. In the first appellate court, learned counsel for the appellant had urged that it was Section 213 of the Marwar Succession Act which debarred the respondent from establishing her right as a legatee without a probate. In support of his contention, he had referred to the case of Balkishan v. Prabhu AIR 1950 Raj 27 (A). It appears that in that case the will was executed within the territory of Marwar and. therefore, the right could not be established, under the will without a probate.
It is now conceded by learned counsel for the appellant that Section 57 of the Marwar Succession Act applied only to these wills which were executed within the Marwar territory as held in the case of Genmal v. Mt. Phau ILR (1955) 5 Raj 614 (B). The correctness of that decision has not been challenged by learned counsel for either party before us. Section 213 (2) of the Marwar Succession Act provided that Section 213 would apply only in the case of 'wills made by any Hindu, Buddhist, Sikh or Jaina where the wills were of the classes specified in Clauses (a) and (b) of Section 57. Clause (b) of Section 57 of the Indian Succession Act was omitted by the Marwar Succession Act.
It was only Clause (a) which was adopted end Clause (a) related only to those wills which were executed within the territories of Marwar, Therefore, according to Section 213 of the Marwar Succession Act, 1936. a probate was necessary for establishing the right of the executor or legatee under the will only if the will was executed within the territory of Marwar. In the present case, the will was admittedly executed in Madras and, therefore, it was not covered by Section 57. Under the circumstances, it was not at all necessary for the respondent or for the executor to obtain probate of that will, and Section 213 of the Marwar Succession Act did not come in the respondent's way. She could prove the will without a probate so long as the Marwar Succession Act, 1936 was in force.
Learned counsel for the appellant could not challenge this position of law in view of this Court's decision in Genmal v. Mt, Phau (B). He has. therefore, taken up in this Court another argument different from that which was advanced in the first appellate court. ;
11. It is urged by learned counsel that the Act in force at present is the Indian Succession Act (Act No. XXXIX of 1925) as amended upto date and not the Marwar Succession Act, 1936. For the sake of brevity we would call the Marwar Succession Act as 'Marwar Act' and the Indian Succession Act as the 'Indian Act' hereafter. It is contended by learned counsel that Section 57(a) of the Indian Act applies to the present) will and, therefore, under Section 213 of the same Act, the respondent has no right to establish her right without a probate.
In support of his contention, he has referred to a decision of this Court in Sunderlal v. Nena C. R. First Appeal No. 83 Of 1952 D/- 16-11-1954 (Raj) (C). The portion on which he relies is. set out below :-
'Then we come to the question whether the defendants could not set up the will in the absence of a probate having been obtained. The trial court relied on Balkishan v. Prabhu (A). That case is, however, based on Section 213 of the Marwar Succession Act. That Act was repealed by the Part B States (Laws) Act (No. III of 1951).
This Act was in force when the judgment was given in this case in August, 1952. In these circumstances. Section 213 of the Indian Succession Act should have been applied, and not Section 213 of the Marwar Succession Act. Learned counsel for the respondent admits that if Section 213 of the Indian Succession Act is applicable, the defendants are not debarred from putting up this will even though they had not obtained probate of it. This point must, therefore, be decided in favour of the defendants.'
12. It may be pointed out that from the above observations it is clear that the judgment in that case given by the trial court in 1952 when the Indian Act was in force and the Marwar Act already stood repealed by the Part B States (Laws) Act, (No. III of 1951). In the present cpse, the judgment of the trial court was given on 18-8-1949, when the Marwar Act was still in force and, therefore, it was the Marwar Act which was applicable by the time the case was decided by the trial court. The observations made by this Court in the Case of Sundarlal v. Nena (C) still hold good, but they are Inapplicable to the present case in view of the fact that the Marwar Act was in force till the decision of the trial court.
The respondent had already established her right under the will before the Indian Act came into force. Section 213 only lays down that in certain classes of wills one has to obtain probate before an executor or legatee can establish his right in a court of justice. In other words, the obtaining ofa probate is a first step to be taken before establishing a right under the will. But this does not apply to the present case because the respondenthad already established her right under the will and got a decree from the trial court. The subsequent change in the procedure could not deprive her of her right which was already incorporated in the decree. There is therefore no force in this argument.
13. The last contention raised by learned counsel is that the will was not properly attested. We have gone into the record of the trial court and find that this argument is quite untenable. Section 63(c) of the Indian Succession Act provides that the will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the will or has seen some other person sign the will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgment of his signature or mark, or of the signature of such other person; and each of the witnesses, shall sign the will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary.'
In the present case, Shivraj Nimani and Jorawar Singh have been shown as attesting witnesses in the will Ex. D-1. D. W. 4 Jorawarsingh has appeared in the witness-box and stated that the deceased Kaniyalal had put his signature on the will in his presence and that the witness had also attested it at the request of the testator. He also says that he identifies the handwriting of the second witness Shivraj who was dead at the time when Jorawarsingh was examined.
He further says that Shivraj had also attested the will in his presence. Thus, it appeal's that Kaniyalal had put his signature on the will in the presence of both Shivraj and Jorawarsingh and both of them have attested it at the request of the testator in his presence. The witness also proceeds to say that Kaniyalal was perfectly in his senses, that Ex.D-i was read over and explained by the scribe to the testator and the testator died four or five months after the execution of the will. Thus the courts below were quite correct in holding the will as properly attested. We find that EX. D-1 not only properly attested but it is also a registered document and it has been proved as Kanhyalal's last will beyond any doubt. There is, therefore, no force in this argument also.
14. The appeal is dismissed with costs.