KAMALA RAJAMANIKKAM Vs. SUSHILA THAKUR DASS

JUDGEMENT

(1.) THIS F. A. F. O. is directed against the Order of the Court below granting probate to the widow of the deceased testator. The respondent No. 1 had applied for grant of probate of the will of her late husband under Section 276 of Succession Act (hereinafter referred to as the Act) which was contested by the appellant before the Court below. Parties are admittedly Indian Christians and Sri P. I. Thakur Dass is said to have died on 2-12-62. He had executed a will on 18th July. 1957 which was propounded to be the last will executed by him. In her application the widow claimed to be one of the beneficiaries under the will and the opposite parties were the sons and daughters of the deceased. The Court below, on the evidence before it, came to the conclusion that the will in question had been duly executed by late Sri P. I. Thakur Dass in a proper state of mind and after fully understanding the same in the presence of the attesting witnesses. The Court, therefore, granted probate of the will dated 18th July, 1957. Aggrieved by this Order, the appellant has come up in appeal.

(2.) AT the very outset Sri A. K. Banerji appearing for the appellant has contended that no probate could be granted in the present case as nobody had been appointed as an executor under the will and only Letters of Administration could have been granted to her in view of S. 234 of the Act.

(3.) FROM a perusal of above paragraph of the will it does appear that the testator had expressly appointed the applicant as an executor of his will. Apart from this along with the application for grant of probate an affidavit of valuation was filed in which it was stated that the applicant was an executor under the will. It is urged by the appellant that these words appear to have been copied out from the form which is prescribed under the Court-fees Act and as such it cannot be said that the word 'executor' had, in fact, been used by the applicant in the original application. As the original record has been destroyed in a fire I have no means of ascertaining whether a printed form of affidavit had been used by the applicant. No such objection had been taken in the Trial Court where it was possible to examine this aspect. Now I do not consider that it would be proper for me to hold otherwise. I would, therefore, treat that such an allegation was consciously made in the affidavit. Since this affidavit forms part of the main petition it must be held that there was substantial compliance of the legal requirements of sec. 276 (1) (e) of the Act.