Dwarka Prasad Gupta, J.
1. This second appeal has been filed by the mortgagee against the judgment and decree passed by the learned Civil Judge, Doongarpur, up holding the decree passed by the Munsif, Sagwara, in a suit for redemption.
2. The property in dispute between the parties, which is situated in the town of Sagwara, belonged to one Nihalchand who mortgaged the suit house with possession with Jadavchand, father of the defendant for a sum of Rs. 580/- by a registered mortgage-deed dated January, 7, 1920 for a period of 15 years. Nihalchand mortgagor died leaving the plaintiff Jhumaklal as the nearest reversioner, being the son of Nihalchand's nephew. Nihalchand also executed a will dated May 14, 1945 leaving all his immovable property to the plaintiff Jhumaklal.
3. As the original mortgagee, Jadavchand had expired, plaintiff Jhumaklal filed a suit for redemption of the mortgaged property against the defendant and stated that he was willing to pay the mortgage amount to the mortgagee's legal heir. In the written-statement, defendant Chhaganlal addmitted that the suit property was mortgaged by the deceased Nihalchand in favour of his father Jadavchand. However, the defendant denied that the plaintiff was the legal heir of the mortgagor Nihalchand and was entitled to redeem the property. It was also pleaded by the defendant that he and his father during the continuance of the mortgage, had spent a sum of Rs. 4884.25 on making repairs and constructions in the mortgaged property and that in case a decree for redemption is passed, the defendant was entitled to the re-imbursement of the aforesaid amount spent by him on repairs and on making constructions in the mortgaged-property together with interest thereon in all a sum of Rs. 6816 62. The suit for redemption was decreed by the trial court and the decree was upheld by the first appellate court; and it was held by both the courts below that the plaintiff was entitled to claim redemption both on the ground that he was the nearest heir of deceased Nihalchand and also on the ground that Nihalchand had executed a registered will in favour of the plaintiff on May 14, 1945. It was held that the plaintiff's father Ratan Chand was the adopted son of Talak Chand who and Gulabchand father of Nihalchand were both real brothers. On the question of improvements alleged to have been made by the mortgagee, it was held that the mortgagee was entitled to a sum of Rs. 316. 90 in respect of repairs & improvements, besides the principal amount of Rs. 580/-, in all a sum of Rs. 896.90.
4. The first question, which was argued in this appeal, was that the plaintiff could not claim any right to the suit property on the basis of an unprobated will. The execution of the will by Nihalchand in favour of the plaintiff has been found proved by both the courts below and the finding in respect of that question of fact has not been challenged before me. Section 213 of the Indian Succession Act does not affect the vesting of the estate of the deceased in any particular person for which must really be governed by the personal law of the parties. Thus the Jack of probate does not affect the legal right of a legatee under the will. What Section 213 provides is that a person seeking to establish his right in any court of justice as an executor or a legatee under a will must have obtained the probate of the will, under certain circumstances mentioned in that Section. So far as the right of ownership of immovable property is concerned, it is not necessary for a legatee to obtain a probate in respect of the will executed by the deceased. The aforesaid view has been taken by this Court in Sheonath Singh v. Madanlal 1959 RLW 593 and in Mst. Jadav v. Ram Swarup and Anr. AIR 1961 Raj 402. Thus the proposition can no longer be disputed that the absence of a probate does not debar the filing of a suit by the legatee in respect of any immovable property devolving upon such legatee by virture of the will.
5. Then it was argued that Nihalchand was ill at the time when the will is said to have been executed by him on May 14, 1945 and he was incapable of making a conscious disposal of his property. The statements of the P. W. 1 Jhumaklal, plaintiff P. W. 2 Chandmal, P.W. 5 Roopchand and P.W. 6 Rupali, have been relied upon by the two courts below to hold Nihalchand executed the will when he was fully possessed of complete senses. It has been argued that that Nihalchand was suffering from paralysis and was hard of hearing and his eye sight was also weak. But there is nothing to show that Nihalchand was not of disposing mind or that the will was executed by exercising undue influence or by decietful means. The finding of the two courts below in this respect does not call for any interference.
6. Another argument advanced by the learned Counsel for the appellant was that the adoption of plaintiff's father Ratanchand to Talakchand has not been proved as no evidence was led nor any document was produced regarding the alleged adoption, which is said to have taken place in Samvat 1959 In case of old adoptions, it is not possible to produce direct evidence of the ceremonies which took place on that occasion. However, in the present case, sufficient documentary evidence has been produced on the record by the plaintiff to prove the adoption of Ratanchand by Talakchand. There is an entry about such adoption in the State papers, as an amount was deposited in the State Treasury and as such the concurrent findings of facts recorded by the two courts below regarding the adoption of Ratanchand by Talakchand cannot be interfered with by this Court in this second appeal, merely on the ground of absence of oral evidence.
7. Lastly, it was argued by the learned Counsel for the appellant that a sum of Rs. 4,884/4 was claimed by the defendant appellant towards the expenses incurred by him and his father in making improvements and repairs in the mortgaged-property and the defendant was entitled to recover the said amount together with interest thereon, in case a decree for redemption was passed. The mortgage-deed entitles the mortgagee to carry out necessary repairs and make constructions as specified therein, with the consent of the mortgagor. The two courts below have allowed only a sum of Rs. 316.90 in respect of repairs.
8. The contention of the learned Counsel for the appellant is that account of expenses incurred upto Samvat 1984 was rendered to Nihalchand during his life time and he accepted the account by putting signatures on Ex. A-1 acknowledging the expenditure of Rs. 2,492/6/6 in making repairs and improvements. The signature of Nihalchand on Ex. A-1 have been proved and there is no reason why the amount which was duly acknowledged by Nihalchand to have been spent on permissible repairs of the building, should not be allowed. The trial court held that the signatures of Nihalchand on Ex. A-1 do not appear to be genuine. There is no basis for this observation. If Nihalchand has admitted the expenditure incurred by the mortgagee after accepting the account rendered by him, then it would be imroper to refuse to allow the said sum to the mortgagee. The expenditure incurred on repairs and permissible constructions carried out in the mortgaged-property cannot be refused, merely because the property, was mortgaged for a small sum of Rs. 580/-. It has not been stated by the plaintiff that the value of the property was less then Rs. 2,500/ and tint more amount was spent on repairs and new constructions then the value of the mortgaged property itself, Ex. A-2 shows that the amount of Rs. 381/- was spent on parni (D W. 2 and D.W.) 4 have proved the expenditure incurred on that account. The trial court itself observed that Rs. 871/6 and Rs 189/12 were spent in fixing stone slabs and carrying on repairs of the kitchen, which the mortgagee was specifically empowered to do, according to the terms of the mortgage. If the expenditure has been incurred in respect of items on which the mortgagee was allowed to spend according to the terms of the mortgage-deed and the expenditure was incurred during the life time of Nihalchand, there is no reason for disallowing the amount as specified in Ex. A-1 As a matter of fact, the two courts below hive allowed part of the amount mentioned in Ex A-1 in respect of some of the items of Ex. 1. There is no valid reason for refusing the other items contained in Ex. A-1 in face of the acknowledgement of the expenditure by Nihalchand himself. The other items of expenditure have not been proved by the mortgagee nor were spent in respect of items which were expressly permitted by the mortgage-deed, as such they have rightly been disallowed. Thus, the mortgagee-appellant is entitled to a sum of Rs. 2,793.40 instead of Rs. 216.90 in respect of repairs and constructions, besides the mortgage money i.e. Rs. 580/-.
9. In the result, the appeal is partlly allowed and although the decree for redemption passed by the two courts below is maintained the plaintiff is directed to deposit the amount incurred by the mortgagee, namely Rs. 2,793.40 towards repairs etc, besides the mortgage money Rs. 580/-, in all Rs. 3,373.40 for payment to the mortgagee on or before 7th of October, 1982. If the amount of Rs. 896.90 has already been deposited by the plaintiff respondent in the trial court, he shall deposit the balance amount before the aforesaid date. The rest of the preliminary decree passed by the two courts below subject to the aforesaid modification is maintained but the parties are left to bear their own costs.
10. On the stay application, an order was passed by this Court on July 11, 1974 directing the appellant to deposit a sum of Rs. 25/- per month with the stipulation that the question whether the amount so deposited should be paid to the appellant or the respondent shall be decided at the time of final decision of the appeal by the court. Now as the preliminary decree has been varied and the respondent has to deposit the remaining amount as directed by this Court the question of dispossession of the appellant cannot arise. Till the remaining amount is deposited by the mortgagor-plaintiff and the final decree is passed accordingly. I, therefore, direct that the amount deposited by the appellant in pursuance of the stay order is refundable to him.