BENI CHAND Vs. KAMLA RNNWAR

JUDGEMENT

(1.) THIS is an applica tion for certificate under Article 133 (1) (a) (b) and (c) of the Constitution of India. Smt. Kamala Kunwar respondent No. 1 made an application for probate of a win executed by one Smt. Jaggo Bai on Octo ber 26, 1961. Beni Chand entered a caveat and filed a written statement contesting the claim of Smt. Kamla Kunwar. The applica tion was dismissed by a learned Single, Judge, but on special appeal by Smt. Kamala Kunwar the order of the learned Single Judge was set aside and probate of the will was granted to her by a Bench of this Court. Now Beni Chand has filed this ap plication for certificate. In paragraph 21 of the affidavit filed in support of the application for certificate it has been stated that "a decision has been recorded in favour of the applicant Kamala Kunwar who has been held entitled to a grant of probate and the property worth Rs. 1, 86, 799.14 accord ing to the plaintiff and Rs. 5, 90, 000/- accord ing to the defendants case covered by the Will has been held to pass to the plaintiff, Kamala Kunwar." A counter-affidavit has been filed by one Raman Lal as Pairokar of Smt. Kamala Kunwar but the aforesaid assertion made in paragraph 21 of the affi davit has not been specifically denied except making a bald statement in paragraph 11 that the contents of paragraph 21 of the affidavit were incorrect. In the rejoinder-affidavit the facts stated in the original affi davit were reiterated. We have perused the application for probate filed by Smt Kamala Kunwar. Annexure I to the said application contains the details of the property in res pect of which probate was sought for. Cer tain amendments were made in the list of properties and the total valuation of the properties after amendment is shown as Rs. 2, 00, 299.14 np. In this view of the matter there seems to be no doubt that the properties in respect of which probate was sought for were and still are valued at a mm of more than Rs.20, 000/-.

(2.) IT was, however, contended by the learned counsel for the respondent that the subject-matter of the proceedings for probate was the question as to whether the will in respect of which probate was asked for was the last will of Smt Jaggo Bai and was duly executed by her in accordance with law. It was urged that the grant of a probate per se did not confer any title in respect of the properties which were be queathed under the will and, therefore, the value of the properties could not be the sub ject-matter of the dispute within the mean ing of clause (a) of Article 133 (1) of the Constitution. Respondent's learned counsel further contended that even clause (b) of Article 133 (1) would not be applicable in asmuch as in order to attract the said clause the property respecting which the claim or question arises must be property in addition to or other than the subject-matter of the dispute. Reliance was placed upon the fol lowing observations made in the case of Chittarmal v. Shah Pannalal Chandulal, AIR 1965 SC 1440.

(3.) IN Central Talkies v. Dwarka Prasad, AIR 1956 AU 348 a Bench of this Court while considering the scope of Article 133 (1) (b) held that if a will is declared to be invalid the result would be that the en tire properties covered by the aforesaid document will be affected and, therefore, in determining whether the decision affects the property of Rs. 20.000/- or more, the value of the entire property should be taken into consideration.