S A G PURSBAT RAO Vs. VIJAYAMMA

JUDGEMENT

(1.) The appellants are the defendants. The respondent and the appellants are the children of one Anandam, a converted christain. Anandam died on 12th May, 1977. The said Anandam was having a house and the agricultural land. For the partition thereof into eight shares and allotment of one such share to her, the respondent laid the suit. The trial Court granted a preliminary decree as against which present appeal has been filed.

(2.) Two defences were taken by the appellants io defeat the right of the respondent to partition. The first defence is that the respondent married a muslim and thereby she became disentitled by operation of law to claim partition, though Issue No. 3 was raised in that regard and evidence was adduced m proof or rebuttal there of, at the time of hearing, the learned counsel for the appellants gave up that issue. Therefore, it is no longer open to the appellants to raise that issue at the stage. Accordingly I hold that despite the respondent marrying a muslim, she did not become disentitled to c aim partition under personal law governing her. The other defence taken is that the appellant's and the respondent's father executed an unregistered win on October 20 1975 bequeathing the suit properties in favour of tt defen dants and specifically excluding the respondent from succeeding to any of the properties because of her marriage with a muslim against his consent. Admittedly the alleged will is an unregistered will and an unprobated one Therefore, the court below relying upon Sec 213 of the Indian Succession Act 39 of 1925, for short "the Act" held that since the allege will was not probated, it cannot be received in evidence. Accordingly a preliminary

(3.) Sri Narasimha Chari, learned Counsel for the apnellant, has raised two-fold contentions in this court. Firstly he contendstha th Act does not apply to Indian Christians and therefore, the invocation of Sec. 213 is unwarranted. He placed reliance upon sub-sec. (2) of Sec 213 and Sec 57 of the Act. Section 57 in part VI (Testamentary Succession Chapter I) provides that the provisions of this part which are set out in Schedule III shall subject to the restrictions and modifications specified therein, apply