1. This is a second appeal by the plaintiff Sheonath Singh in a suit for possession and cancellation of a will.
2. The material facts may be shortly stated as follows. It is common ground that Kansingh deceased and the plaintiff Sheonath Singh are first cousins. On 15-11-1948, Kansingh made the will Ex. 1 in favour of one Madanlal by which he be-quested all his movable and immovable property to the said Madanlal. Sheonath Singh thereupon instituted the present suit during the life-time of Kansingh on 29-12-1948, on the allegations that Kansingh was a member of a joint Hindu family consisting of himself and the former and that he had no right to make a will of the joint family property in the manner in which he did. The suit was originally brought against Kansingh only and was merely for a cancellation of the will. Kansingh subsequently died on 28-9-1949.
Thereupon the plaintiff amended his suit, im-pleaded Madanlal as defendant in place of Kansingh deceased and prayed for possession also. The Munsiff Dausa in whose court the suit had been filed dismissed it in the first instance by his judgment dated 28-3-1952. The Munsiff found against the plaintiff on all the contentions raised by him except that he held that the plaintiff was the nearest heir of the deceased Kansingh, but he also held that that was of no materiality as in his view Kansingh was a separated member and had a right to make a will with respect to his own property.
The Munsiff further held that it was unnecessary for the defendant to obtain a probate of the will in order to succeed in his claim to the property of the said Kansingh under that will. The plaintiff then went in appeal to the District Judge, Jaipur District, Jaipur. It appears to have been strenuously urged before the learned District Judge that the trial court should not have decided that the will could be given effect to even though it was unprobated, without framing an issue on that point, and that in any case that court had fallen into error when it came to the conclusion that Section 213 of the Indian Succession Act, 1925 (Act No. 39 of 1925) (hereinafter referred to as the Indian Act) was applicable to the prescnt case and not Section 213 of the Jaipur Succession Act, 1943 (Act No. XIX of 19431 (hereinafter referred to as the Jaipur Act).
It appears to have been conceded before the learned appellate Judge that if the Jaipur Act was held to be applicable to the facts of this case, then the plaintiff was bound to succeed as the defendant could not obtain any right under the will unless a probate thereof had been obtained by him in accordance with the provisions of the aforesaid Act. In this view of the matter, the learned District Judge remanded the suit with a direction to the trial court to decide whether the present case was governed by Section 213 of the Jaipur Act or by Section 213 of the Indian Act, and, further, if the latter Act applied, whether the defendant could succeed in establishing his rights under the will without obtaining a probate thereof.
The Munsiff after remand held that the par-
ties were governed by the Indian Act as it had come into force in this State before the present suit was decided and that under that section it was entirely unnecessary for the defendant to take out a probate of the will in suit. The Munsiff, there fore, again dismissed the suit. The plaintiff went in appeal to the District Judge, Jaipur District Jaipur, who also affirmed the judgment of the trial court on 2-12-1953. The plaintiff has now come up in second appeal to this Court.
3. The only question for determination in this appeal is one of law, namely, whether the finding of the courts below to the effect that the parties were governed in this case by section 213 of the indian act and not by the corresponding section of the Jaipur Act is correct.
4. Section 213 of the Jaipur Act reads as follows:
"Right as executor or legatee when established. (1) No right as executor or legatee can be established in any Court of Justice, unless a Court of competent jurisdiction in the Jaipur State 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 Section 57."
5. Section 57 then is in these terms:
"Application of certain provisions of Part to a class of wills made by Hindus, etc. The provisions of this Part which are set out in Schedule III shall, subject to the restrictions and modifications specified therein, apply-
6. The effect of the aforesaid provisions clearly is that no executor or legatee under a will whether as plaintiff or defendant can establish his right as such in a court of law unless he has ob-tained a probate thereof where the will was made after the commencement of the Jaipur Act by any Hindu, Buddhist, Sikh or Jaina, resident in that State, or where a will has been made with respect to immovable property by a person resident outside the State but where such immovable property was situate in that State. It is indeed obvious that if the matter rested merely at this, the defen- dant in the present case must be held debarred from establishing his right as a legatee under the will Ex. P-1 for the simple reason that this will was made in 1948 after the commencement of the Jaipur Act and was made by a person who lived within the territory of that State as it then was, and further the will had been made with respect to property which was situate in that State.
7. The contention on the side of the defendant however is, and that has been upheld by both court's below, that the Jaipur Act was repealed by the Part B States (Laws) Act, 1951. (Act No. III of 1951) which came into force on the 1st April, 1951, and, thereafter the Indian Act came into force in this State, and the case must properly fall to be governed by Section 213 of the Indian Act. Sections 213 and 57 of the Indian Act read as follows:
"213. Right as executor or legatee when established.
(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 ap-ply 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."
"57. Application of certain provisions of Part to a class of wills made by Hindus, etc. 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 Jain, on or after the first day of September, 1870, within the territories which at the said date were subject to the Lieutenant-Gover-nor 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 Jain, 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. "
The effect of these two sections broadly speaking is that persons, claiming as executors or legatees under a will made by a Hindu. Buddhist, Sikh or Jain living within certain areas mentioned in Section 57 (e. g., in certain parts of the States of Bengal, Bombay, Madras) must obtain a probate or letters of administration with the will annexed before they can claim as executors or legatees under such a will: and the same rule holds good where the will has been made by such a person residing outside the territories mentioned above but where the immovable property to which the will relates is situate within the aforesaid territory.
Put in plain language, under the new Act. the obtaining of a probate of the will is not a condition precedent to the establishment of a right as an executor or a legatee with respect to it, where the will has been made by a person resident in Rajas-than or say in any other State such as Uttar Pradesh, the Punjab or Madhya Pradesh not covered by Section 57 of the Act, and an executor or a legatee may establish his right in a court of law with respect to a will so executed without obtaining probate of it.
8. The next question that immediately arises is whether the parties to this case are rightly governable by section 213 of the indian act or by the same section of the jaipur act. The contention on the side of the plaintiff is that a vested right accrued to him under Section 213 of the Jaipur Act as soon as the deceased Kansingh had died and that this right could- not be taken away by the subsequent introduction of section 213 of the indian act. I have given my very careful and anxious consideration to this question and have come to the conclusion that this contention is without any real force.
As I understand the provisions contained in section 213 whether of the jaipur act or of the indian act, it clearly seems to me that that section does not vest any right or rather any substantive right in any body. What it really does is to regulate the mode of proving a will, that is, procedure. It is indeed to my mind beyond doubt or dispute that the rights of the parties with respect to the succession of the estate of the deceased Kansingh in so far as they are vested or substantive rights fall to be governed by the personal law applicable to the parties, and that is the Hindu Law.
It is true that if Kansingh should have died intestate, the plaintiff Sheonath Singh would have inherited his estate being his nearest heir according to Hindu Law as was indeed held by the trial court. It is equally true however that as Kansingh was a separated member of a Hindu family, he was authorised in law to make a will with respect to his separated estate and that being so there was a clear impediment in the way of Sheonath Singh plaintiff succeeding to the estate of Kansingh and, granting that Kansing had made a valid will, the person who would, again, according to the personal law of the parties, be entitled to the estate of Kansingh, would be the legatee under the will, namely, Ma-danlal.
It is thus clear that Section 213 has nothing to do with the vesting of the estate of Kansingh in any particular person, and that matter, as pointed out above, must really be governed by the personal law of the parties. What Section 213 really does, in my opinion, is that it lays down a rule of procedure... that rule being that a person seeking to establish his right in any court of justice as executor or legatee under a will must have obtained the probate of the will under certain circumstances mentioned in the section. Again the section precludes the "establishment" of a right as executor or legatee in a court of justice but does not affect the right as such for which we must indeed look elsewhere. It also seems to me that where such a right may not come up for being established in a Court of law the want of a probate need not and would not affect the right of a legatee under the will.
There is authority for the proposition that an executor even before he proves the will may lawfully take into his hands any of the testator's effects, may pay his debts and receive payments due to him and may sell his goods in his discretion and that although the executor should die having done any of these acts but before proving the will, his acts so done stand good. Again, the rule in question does not preclude the use of a will which is un-probated as evidence for a purpose other than thar establishment of a right as executor or legatee, I am categorically of the view, therefore, that Section 213 lays down a rule of procedure and not of substantive law.
The position, therefore, is that there was one rule of procedure as laid down by Section 213 of the-Jaipur Act when the will happened to be made in this case according to which the obtaining of a probate was necessary before a legatee could successfully establish his right as such in a court of law. This rule underwent a change when the Indian Act after the repeal of the Jaipur Act came to hold the field from April, 1951, onwards, and according to this rule the obtaining of a probate by a legatee with respect to a will executed by a resident in this State or even by a non-resident with reference to immovable property situate in this State was no longer necessary. In these circumstances I hold that section 213 of the indian act merely lays down a rule of procedure just as did Section 213 of the Jaipur Act though the content of the two rules is not the, same and the later one does away with the restrictions prescribed by the earlier one.
9. That the rule contained in s, 213 of the indian act is a rule of procedure becomes all the more obvious when we look at it from another angle. There is a strong current of authority for the proposition that the provisions of section 213 are sufficiently complied with where a person may not have obtained the probate before the commencement of the suit but he obtains it before the passing of the decree in that suit. Thus it was held in Raichand v. Jivraj, AIR 1932 Bom 13 that the grant of probate of a will is not a condition precedent to the institution of a suit by a person claiming as a legatee, and the executor or the legatee may institute a suit without obtaining probate, but he will not be allowed to establish his right or in other words entitled to a decree unless probate is granted to him before the passing of the decree.
Again, it was held in Bhudeb Chandra v. Bhikshakar Pattanaik, AIR 1942 Pat 120 that the rule laid down in section 213 of the indian act to the effect that no right as executor can be established in any Court of Justice, unless a Court of competent jurisdiction has granted probate of the will under which the right is claimed only means that no court shall recognise the right of an executor unless he has obtained probate of the will; but the effect of Section 211 was that the estate of the deceased testator vested in the executor by virtue of the will and from the date of his death.
Reliance was then placed on the decision of their Lordships of the Privy Council in Chandra Kishore Roy v. Prasanna Kumari Dasi, ILR 38 Cal 327, and it was laid down that the provisions of Section 187 of the old Succession Act (corresponding to Section 213 of the Act of 1925) were complied With as the probate was obtained before the decree, though after the commencement of the suit. In Chandra Kishore Roy's case ILR 38 Cal 327 referred to above, a Hindu died leaving a will whereby he made provision for his wife and his daughters surviving him. The daughters subsequently filed suits for their allowances and it so happened that at the time the suits were instituted, no letters of administration had been granted but pending the suits, letters of administration with the will annexed had been obtained.
It was contended that the suits could not be maintained with reference to the provisions of Section 187 of the Succession Act which was then in force which required that before a right of a legal tee could be established, probate of the will must have been granted. It was held that the section had been complied with as the letters-of-adminis-tration had been obtained prior to the decree and that the fact that they had been obtained after the institution of the suit made no difference in law.
That being the established view it would have been open to the defendant in the present case to obtain a probate until the decision of this suit, and if he did so that should have been good enough. But by the time the suit came to be decided the law itself was altered and there arose no necessity to obtain the probate according to section 213 of the indian act which had already come into force In April, 1951.
10. From the foregoing analysis of the provisions of section 213, I have no hesitation in coming to the conclusion that what it really does is to lay down a rule of procedure and not of any substantive right. There is, therefore, no substance in the contention that Section 213 of the Jaipur Act vested any right of inheritance in Sheonathsingh plaintiff on the death of the testator Kansingh with reference to the latter's estate.
Now the proposition is indeed too well settled to admit of any doubt or dispute that no one can have any vested right in a rule of mere procedure and that any alteration in mere procedure operates retrospectively. If any authority is required in support of this view, I would invite attention to Jethmal v. Ambsingh. ILR (1955) 5 Raj 334 : (AIR 1955 Raj 97), a Full Bench decision of our own Court, to which I was a party, and the decision of their Lordships of the Supreme Court in Anant Gopal Sheorey v. State Of Bombay., AIR 1958 SC 915.
It must follow that section 213 of the indian act has retrospective force and must apply to all suits pending at the time it came into force. It would also seem to follow that the obtaining of a probate cannot be held to be a condition precedent to the establishment of a right as an executor or as a legatee in the case of any will executed by a resident in this State or by a person who is not so resident but makes a will with reference to immovable property situated in this State,
11. On this view of the whole matter, I have arrived at the conclusion that the present suit which came to be decided in 1952 by the trial court in the first instance was rightly governable by section 213 of the indian act and not by the corresponding Section of the Jaipur Act, and, therefore, it was not at all necessary for the defendant to take out probate of the will, under which he was claiming, as a condition precedent to the establishment of his title as a legatee under the will. I hold accordingly.