This is an appeal under section 299 of the Indian Succession Act, 1925, (hereinafter referred to as 'the Act') against order dated 2-1-1980 passed by the Additional District Judge, Shivpuri, refusing to grant probate in spite of holding the will executed by Smt. Dhanvanti, the testator, in favour of the appellant as duly proved.
2. The appellant submitted an application for grant of probate in his favour in respect of a will dated 29-1-1970 (Ex. P. 1) executed by Smt. Dhanwanti widow of Shri Ayodhya Prasad, resident of purani Shivpuri. The property bequeathed by the will in question is admittedly situated at Shivpuri.
3. The respondent opposed the grant of probate inter alia on the ground that the will set up by the appellant is pot a genuine document.
4. The learned Additional District Judge, after recording the evidence of the parties, held that execution of the will in question has been duly proved and that it is the last will of the testator Smt. Dhanwanti but has refused to grant probate holding that a Hindu need not be given a probate under will. Aggrieved by this refusal to grant probate, the appellant has preferred this appeal.
5. In this appeal, Miss Kusum Shinde, learned counsel for the appellant, contended that even if grant of.probate in respect of the will in question being executed by a Hindu may not be necessary yet when an application is moved for grant of probate, the Court cannot decline to grant it on proof of the factum of execution of the will.
Shri K. N. Gupta, learned counsel for the respondent argued in support of the impugned order and attacked the finding recorded by the learned Additional District Judge in favour of the appellant that the will is duly proved. He contends that the will has not been duly proved inasmuch as the attestation has not been proved according to the provisions of section 63 of the Act, that the learned Additional District Judge has overlooked the fact that the appellant had taken active part in getting the will executed in his favour, and, that even otherwise the impugned order is in accordance with law.
6. Having heard the learned counsel for the parties, I have come to the conclusion that the appeal deserves to be allowed.
7. Section 213 of the Act fans as under :-
"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 apply :-
(i) In the case of wills made by any Hindu, Buddhist, Sikh or Jain a where such wills are of the classes specified in clauses (a) and (b) of section 57, and,
(ii) in the case of wills made by any Parsi dying, after the commencement of the Indian Succession (Amendment) Act, 1962, where such wills are made within the local limits of the ordinary/civil jurisdiction of the High Courts at Calcutta, Madras and Bombay and where such wills are made outside those limits, in so far as they relate to immovable property situate within those limits."
According to sub-section (2) of section 213 of the Act, sub-section (1) applies only in case of will made by any Hindu where such wills are of the classes specified in clauses (a) and (b) of section 57 of the Act. Now, section 57 of the Act runs as under :-
"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 Jaina on or after the first day of September 1870, within the territories which at the said date were subject to the Lieutenant Governor 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 they relate to immovable property situate within those territories or limits, and
(c) to all wills and codicils made by any Hindu, Buddhist, Sikh or Jaina, 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."
On reading section 213 (2) with section 57 of the Act the position which emerges is that so long as a particular will executed by a Hindu is not covered by clauses (a) and (b) of section 57 the question of application of sub-section (1) of section 213 of the Act does not arise. This is what has been held in Ahemad v. Ghisia Hira, A I R 1945 Nag. 237. Mst. Jadav v. Ramswarup and another, A I R 1961 Raj 40. and Beharilal v. Karam Chand, A I R 1963 Punj. 108. In view of the law laid down in the aforesaid cases, there can be no dispute with the proposition that section 213 (1) has no applicability to a will made by a Hindu which falls in clause (c) of section 57 of the Act. Accordingly, a person who sets up a will which does not fall within clauses (a) and (b) of section 57 can establish his right as legatee in any Court of justice without' obtaining a probate. To put it differently, obtaining of probate in such cases is optional but to say that it is optional for such a person to apply for grant of probate does not mean that if he elects to apply for grant of probate then the Court can refuse to grant to be only proved and the last will of the testator. The learned Additional District Judge has in support of the view taken by him placed reliance on the ratio of Ramcharanlal v. Madhavlal, 1978 M P W N (Vol.2) 86. what has been held by Vyas J. in that case is as under:-
"According to the provisions of section 213 of the Act, no right as executor or legatee can be established in any Court of justice unless a probate has been granted in India of the will of which the right is claimed. In sub-section (2) of section 213 of the Act however an exception has been made to the effect that the aforesaid provisions of subsection (1) of section 213 of the Act shall not apply in the case of wills made by Mohammadans and shall apply only in case of wills made by Hindu where such wills are of the classes specified in clauses (a) and (b) of section 57 of the Act. clauses (a) and (b) of section 57 of the Act are applicable to wills made by Hindus after the 1st day of September 1870 within the territories which were at the said date subject or which were within the local limits of the ordinary original civil jurisdiction of the High Court of Judicature at Madras and Bombay and also to such wills made outside the territories and limits so far as they relate to immovable property situate within the aforesaid limits. This will in question was admittedly made not within the local limits of the Hindu Court of Judicature at Madras and Bombay but was made within the limits of the provisions of this Court i. e. in the State of Madhya Pradesh.
Accordingly, therefore, the provisions of sub-section (1) of section 213 of the Act were not applicable because of the specific provisions of sub-section (2) of section 213 or clauses (a) and (b) of section 57 of the Act. In this connection a reference may be made to the decision in Lachamansingh v. Smt. Brisbhan Dulari, 1966 M P L J Note 8. and Kundanbai v, Hazaribi, 1976 J L J Note 98.
There cannot be any quarrel with the proposition enunciated in Ramcharanlal's case (Supra) but it has no applicability to the present situation. The view laid down in Ramcharanlal's case (Supra) cannot be extended to lay down the proposition that the Court will be justified in declining to grant a probate on the ground that it does not require probate in accordance to section 213 (2) read with section 57 (c) of the Act. Accordingly the ratio of Ramcharanlal's case (Supra) was erroneously applied; it is not applicable to the present case. On the finding that the will has been duly proved and is the last will of the testator grant of probate was obligatory. As such, the learned Additional District Judge, acted illegally in refusing to grant probate prayed for by the appellant.
8. This brings me to the question as to whether the impugned order recorded by the Additional District Judge, in favour of the appellant with regard to valid execution of the will is correct or not. This part of the impugned order was attacked by the learned counsel for the respondent. In order to prove the execution of the will the appellant examined himself as P. W. 1, and also examined Chhatarsingh (P. W. 2), Mishrilal (P. W. 3) and Banmali Dvivedi (P. W. 4) Handwriting Expert. In rebuttal the respondent examined himself as D. W. 1 besides Jagdish Prasad (D. W. 2) and C. T. Sarvate (D. W. 3), Handwriting Expert. Shri Gupta, relying on the provisions of section 63 of the Act contended that the attestation of the will in question has not been proved. Section 63 of the Act lays down inter alia that every testator shall execute his will according to the following rules :-
"(a) The testator shall sign or shall affix his mark to the will, or it shall be signed by some other person in his presence and by his direction.
(b) The signature or mark of the testator, or the signature of the person signing for him shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a will.
(c) 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."
It is contended that the attestation of the will has not been duly proved inasmuch as Mishrilal (P. W. 3) attesting witness of the will, has not stated that it was in his presence that the executant had signed the will and that Mishrilal does not state to have signed the will in presence of the testator. I am afraid this contention cannot be accepted, and reliance on the provisions of section 63 of the Act is not at all available in view of the statement of Mishrilal (P.W. 3). The relevant portion of his statement read as under :-
@ Hindi Matter
This statement is not lacking in any manner whatsoever and constitutes legal proof of the will in the manner enjoined by section 63 of the Act.
9. Faced with this situation, Shri Gupta further contended that the appellant himself had taken part in obtaining execution of the will in his favour from Smt. Dhanwanti. This argument appears to be attractive on the face of it, but is devoid of any substance. The hand of Vidhayaram is not shown to be working behind the screen in any manner whatsoever. He is not shown to have made any attempt in getting the will in question executed by Smt. Dhanwanti in his favour. nothing has been brought out in the cross-examination of the witnesses produced on behalf of the appellant/. and/or by the evidence led by the respondent on the basis of which it may be held that the will (Ex. p. 1)was procured unduly by Vidhayaram appellant from Smt. Dhanwanti.
10. The further contention advanced by Shri Gupta was that the statement of C. T. Sarvate (D.W. 3) Handwriting Expert, produced by the respondent has been rejected on irrelevant consideration. In this respect it has to be stated that the evidence afforded by the Handwriting Expert is, in ultimate analysis, an opinion evidence merely which cannot prevail over direct evidence of the persons who have attested the document in question, and whose testimony is found reliable.
11. In the instant case the appellant has produced besides himself as P. W. 1 the attesting witness Mishrilal (P. W. 3), whose testimony constitutes legal proof of the factum of execution of the will by Smt. Dhanwanti.
12. In this case the opinion of the Handwriting Expert examined by the respondent stands contradicted by the testimony afforded by Shri Banmali Dvivedi (P. W. 2). In Mt. Sadica Begum v. Ata Ullah"1, it has been held that:-
"Where several experts give the evidence expected in favour of the parties by whom they were called it can carry little weight for one expert is contradicted by the other."
Even if such a mathematical approach were not regarded to be acceptable, in view of the fact that the direct evidence led by the appellant is sufficient, and has been found reliable by the learned Additional District Judge, to constitute legal proof of the execution of the will (Ex. p. 1) rejection of the opinion of C. T. Sarvate (D. W. 3) Handwriting Expert, cannot be regarded as sufficient to constitute any illegality.
14. The respondent has failed to show that the findings arrived at by the learned Additional District Judge (i) with regard to the execution of the will and (ii) with regard to the fact that it is the last will of the testator, are not shown to be vitiated by any infirmity legal or otherwise.
14. In view of the aforesaid discussion, the appeal succeeds and is hereby allowed with costs. That part of the impugned order which concerns itself with refusal to grant probate is. hereby set aside. It is directed that probate be granted in favour of the appellant in respect of the will (Ex. p. 1). Counsel's fee, as per schedule, if certified.
Appeal allowed.