JUDGMENT Honniah, J.
1. This is an appeal by one of the sons of Monthu Sequiera and Magdalene Sequiera Bai, against an order of the District Judge, South Kanara dismissing the petition filed by him and other children of Monthu Sequiera and his mother for letters of administration with the Will annexed in respect of a Will dated 28-10-1955 executed by Monthu Sequiera and his wife Magdalene Sequiera. Monthu Sequiera died on 1-7-1965.
2. The learned District Judge even without issuing the citation, dismissed the petition mainly on the ground that the will had not become operative inasmuch as the same being a joint will it would come into force only after the death of both the testators and since Magdalene Sequiera was alive, the petition was not maintainable. Incidentally he held that the petition did not relate to all the properties disclosed in the will as standing in the name of Monthu Sequiera as the petitioners had confined only to a few items mentioned in the will.
3. The document in question is stated to have been executed by Monthu Sequiera and his wife Magdalene Sequiera Bai. Such a will could be executed by two persons, as joint will is not unknown to law. The properties disposed of under the will, as could be gathered from the will, are not joint properties of both the testators. Some belonged exclusively to the husband and others to the wife. Each of them could have executed an independent will in respect of his or her properties, but for whatever reason it might be, they have executed a joint will. As stated in the petition, Monthu Sequiera died on 1-7-1965 leaving behind his wife and six children, who were all petitioners in the lower court. There is no legal impediment to issue letters of administration in respect of properties which stood in the name of Monthu Sequiera after his death. So far as the disposition of the properties of Monthu Sequiera, the will has become operative although in respect of the properties standing in the name of his wife, it has not come into force. What the petitioners have asked in their petition is to issue letters of administration with the will annexed in respect of properties of Monthu Sequiera relying upon the recitals in the Will. The learned District Judge was not justified in dismissing the petition for the reasons stated by him.
4. A reference may be made to the decision in Rajeshwar Misser v. Sukhdeo Misser, AIR 1947 Pat 449. In that case, an application was made for issue of a probate in respect of a Will executed by two persons jointly. The application was opposed by one of the members of the family. Dealing with that question this is what Reuben, J., speaking for the Bench said:
The next point is whether, in fact, this is a Will, and this is the point on which the main contention in the appeal has been rested.: The first unusual feature about the document is that it is executed by two persons. A joint will, however, is not unknown to the law. L. R. (1898) P. 7 is a case in which a joint will was made by a husband and wife. It was divisible into three parts. The first part was the will of the husband in case the wife should survive him, the second was the will of the wife in case her husband survived her, and the third of both of them to come into operation when they were both dead. The Court granted probate of so much of the instrument as became operative upon the death of the wife. In
L. R. (1872) 4 PC 236, the Court construed a mutual will made by a husband and wife as separable the disposition of each spouse being treated as applicable to his or her share of the joint property, and held that each spouse was at liberty to revoke his or her part of the will during the co-testator's lifetime, with or without communication with the co-testator or after the co-testator's death. Nearer home, probate was allowed of a ioint will by a husband and wife by the Bombay High Court in
45 Bom 987 = (
AIR 1921 Bom 261).
On a consideration of the above facts their Lordships set aside the order of dismissal made by the Court below and directed that letters of administration with the Will annexed be granted to the applicants.
5. In this case also, the facts, as could be gathered from the Will, are that the husband and wife executed a point will in question in respect of the properties standing in their individual names, to the effect that after the death of either of them, the properties should be enjoyed by the other and on the death of the other, the properties should go to the other legatees mentioned in the Will. In these circumstances, the lower court was not correct in dismissing the petition at the preliminary stage itself.
6. In the result, we allow this appeal, set aside the order of the court below and remit the case to that Court with a direction that it should dispose of the petition in accordance with law. No costs.