1. This writ petition by Smt. Kesar Bai widow of Mishrilal directed against the order of the Board of Revenue dated 1.2.1966 reviewing its earlier order dated 23.2.1962, as also its subsequent order dated 29.2.1968, raises the question whether or not the India Succession Act, 1925 (which will hereinafter be referred to as 'the Act) or any corresponding law requiring attestation of wills, was in force in the erstwhile princely State of Bundi.
2. The petitioner's husband Mishrilal was a recorded Khatedar tenant of 70 bighas and 7 biswas of land situate in village Heerapur in the former State of Bundi. It is alleged that be left a will bequeathing the estate to his sister's son Mudulal, the respondent No. 3. The original will is not forthcoming and, therefore the exact date of its execution is not known. But there is on record a certified copy of the statement of DW/6 Hukamchand Sharma, recorded in the court of the Sub-Divisional Officer, Bundi showing that the alleged will, exhibit D/2, was registered on 2.5.1946. Mishrilal died on 8-10-1950 i.e., after the merger of the Bundi State. On the strength of the will, he got his name mutated as the Khatedar. The mutation proceedings were contested by the petitioner, who is the widow of Mishrilal, right up to the Board of Revenue, but with no avail.
3. Thereafter, she brought the present suit-for possession under Section 183 of the Rajasthan Tenancy Act, 1955, claiming to be entitled to the lands as being the rightful heir alleging that the said will was not genuine besides being legally invalid for want of attestation and. therefore, it did not create any right or title in favour of the respondent No. 3. The petitioner, therefore, prioed that she be declared to be the Khatedar tenant of the suit lands and the respondent No. 3 Modulal be evicted therefrom. The respondent No. 3 contested the suit on the ground that he was not a trespasser, but his possession was referable to a lawful title derived by virtue of the will executed by Mishrilal in his favour. He alleged that the petitioner was living in adultery with another person and, then fore, Mishrilal had disinherited her.
4. The Sub Divisonal Officer, Bundi, upheld the claim of the respondent No. 3 on the basis of the will and dismissed the suit and his decision was affirmed in appeal by the Commissioner, Kota. On further appeal, the Beard of Revenue by its order dated 23.2.1962 decreed the suit of the petitioner. It held that the will cannot be taken as proved, as there was no proof of its attestation. In the absence of such proof, it held that the very basis of respondent No. 3 Modulal's title fails. There was no contention raised before the Board of Revenue that at the relevant time, the Act was not in force in the Bundi State. The respondent No. 3 filed an application for review before the Board of Revenue and the Board by its order dated 1.2.66 set aside (he earlier order on the ground that the Act could not. apply to the former Bundi State, stating:
The Indian Succession Act does not apply to the Bundi State as it found no place in the report of the Administration of the Bundi State in the year 1946-47 where the list of all the Central Acts applied to the Bundi State is given.
The appeal of the petitioner was re-heard and the Board, by its order dated 29.2.1968, dismissed the same holding that (1) the will was not invalid for want of its attestation, and (2) there was no warrant for interference with the concurrent findings of the courts below that the will was genuine.
5. Shri Dutt, learned Counsel for the petitioner assailed the impugned orders of the Board of Revenue firstly on the ground that the order dated 1.2.1966 reviewing the earlier order dated 23.2.1962 was beyond the scope of review. But this contention is without substance, because if the Act was not applicable to the erstwhile State of Bundi, then there was an error apparent on the face of the record in the earlier order of the Board dated 23.2.1962, which could be corrected in a review.
6. Learned Counsel for the petitioner next contends that the Board in order to ascertain whether the Act was in force in the Bundi State has referred only to the Administration Report of that State for the year 1946-47. It did not care to investigate whether the Act was or was not applicable in the year 1950 because the crucial date on which the succession opened was 8.10.1950, the date on which Miserilal died. He submits that, even if the Act was not applicable in the State of Bundi, the provisions of the Act should be held applicable to that area on the principles of justice, equity and good conscience. He also contends-that the Act was extended to the State of Rajasthan on 1.4.1951 by Section 3 of the Part B States (Laws) Act, 1951, without any modifications in Section 57 thereof. Clause (c) of Section 57 provides that the provision of the Act, set out in schedule III (which includes the requirement of attestation under Section 63) shall apply, inter alia, to all will and codicils made by any Hindu, Buddhist, Sikh and Jain on or after the first day of January, 1927. Section 58(2) further provides that the provisions of this part shall constitute the law of India applicable to all cases of testamentary succession. The submission of Shri Dutt is that as a result of this legislation, all wills made by Hindus, Jains, Sikhs or Buddhists in any part of India on or after the first day of January, 1927, must be in order to be valid reduced to writing, signed and attested, in short, his argument is that Clause (c) of Section 57 operates retrospectively, and the will in question is also covered by that provision because Section 57 and 63 constitute the law of India (i.e. inclusive of all parts of Rajasthan) applicable to all cases of testamentary succession. It means that Section 57 is not only exhaustive but also retrospective.
7. Shri Chiranjilal learned Counsel for the respondent No. 3 urged, on the other hand that, at no time it was the case of the petitioner that the Act or its provisions were applicable to the erstwhile State of Bundi. The Board of Revenue proceeded in deciding the appeal by its order dated 29-2-68 on the basis that the Act had no application to that area included in the former Bundi State. In the writ petition, it is urged, the petitioner has no where challenged this position, nor has any material been placed before the Court to show that the Act was applicable to the former State of Bundi by any Durbar Order or was recognised by any court b) application of principles of Justice, Equity and Good Conscience. As a matter of fact, it is stated, the formalities prescribe for the execution of any document cannot be extended to any an a by application of such principles. It was then pointed out that Section 6 of the Part B States (Laws) Act, 1951, provided that if immediately before the appointed day there was in force in any Part B State an) laws corresponding to any of the Acts or Ordinances extended to that State, that law shall, save as otherwise expressly provided, stand repealed and further that the repeal shall not affect inter alia any right acquired under the law so repealed. Shri Agarwal now contends that if there was any law corresponding to the Act in force in the State of Bundi, then inspite of its repeal, the rights which accrued to the respondent No. 3 on 8-10-1950 upon the death of Mishrilal could not be affected.
8. We are unable to accept the contention of the Shri Agarwal because the provisions of Section 6 of the Act are attracted only if there is repeal and if there was no corresponding law in the Bundi area, then that section cannot be pressed into service as there would then be simply no repeal of any law. But we do certainly, upon deeper consideration, feel that when the Act was extended to the Part B States on 1-4-1961, then it could never have been the intention of the Legislature to make it operate retrospectively. No doubt Section 57 makes Section 63 applicable to all wills made after 1st. January. 1927. but then between 1927 and 1951 wills might have been executed and acted upon. Certainly the Legislature could not be presumed to have laid down that the provisions of Clause (c) of Section 57 shall operate with effect from 1st day of January, 1927 As it is, the provisions of the Act are not retrospective in operation. If any authority is needed for this proposition then we may advert to Bhimrao and Ors. v. Punjab Rao and Ors. 18 N.L.J. 1. That being so, we feel that the provisions of Clause (c) of Section 57 could only apply with, the modification that they shall apply to the wills executed on or after 1-4-1951. As a master of fact, Clause (c) of Section 57 was inserted by the Indian Succession (Amendment) Act, 1926, and even then it was not made retrospectively effective.
9. Though no custom or practice of any Durbar order or any judicial decision was shown to us by which it. could be said that the provision! of the Act are applied and unattested wills were got recognised in the erstwhile State of Bundi, yet at the same time we strongly feel that apparently no serous effort was made at the level of the Board of Revenue when, exercising the powers of review, it decided that the Indian Succession Act. 1925, was not applied to the State of Bundi. We may also make a mention that an Ordinance called the United State of Rajasthan Extension of Laws, Ordinances, 1948 (Ordinance No. XLI of 1968) was also issued by the Government of United State of Rajasthan, which subsequently camp to be known as the former Rajasthan. The said Ordinance was published on 28th August, 1948, in the Official Gazette, Section 3 thereof provides that the Government of United State of Rajasthan may by notification in the official Gazette extend any laws of India to the United State of Rajasthan or any part thereof with such restrictions and modifications as it thinks fit. No help available here and it could not categorically be said that the Indian Succession Act, 1926, was not made applicable to the former State of Rajasthan in pursuance of the aforesaid provisions.
10. We, therefore, consider it proper that further investigation in this regard is called for. This is necessary all the more because the plea of non-applicability of the provisions of the Indian Succession Act was not raised until the Board chose to review its order.
11. We, therefore, accept this petition, quash the order in question and direct the Board to decide the matter afresh in the light of our observations. The cost of this petition shall be Rs. 100/- which shall abide the result.