MEGHRAJ Vs. MANAKLAL

JUDGEMENT

(1.) This is an appeal against the order of the District Judge, Jodhpur, dated the 28th of Jan., 1956, granting probate to the respondent Manaklal.

(2.) The facts giving rise to it are that one Kanyalal Begani resident of Phalodi died at Phalodi on Asad Vad 14, Smt. 1991, corresponding to 10th of July, 1937. On the 27th of Jan., 1943, the respondent Manaklal presented an application in the Court of the District Judge of the former State of Jodhpur under section 222 of the Marwar Succession Act. It was stated by him that the deceased Kanyalal used to carry on business at Madras, that on the 31st of May, 1937, he had executed a will at Madras and got it registered on 30th of June 1937 at the same place. By that will, five persons including the respondent Manaklal and the appellant Meghraj were appointed as executors of the will. But later on, Meghraj turned hostile inasmuch as he tried to set up his own claim against the contents of the will, while executors were not taking any interest on account of their resident elsewhere and hence it was prayed that a probate of the said will be granted in his (respondent's) favour. The application was contested by the appellant Meghraj on several grounds. Such an application should have been disposed of within a few months, but for several reasons, which need not be enumerated here, the case lingered on for a long time and it was on the 28th of Jan., 1936, that the learned Judge ordered the grant of the probate in favour of the respondent. That order has been assailed by the appellant in this Court on three grounds. In the first place, it is contended that the District Judge had no jurisdiction to receive the application for probate. It is next urged that the respondent had no right to apply for a probate and lastly, it is urged that the attestation was not proved and hence the order of the District judge should be set aside.

(3.) We have heard learned counsel of both the parties at length. So far as the last two objections are concerned, there is little force in them and we shall discuss them later on. It would be proper to take up the first point first because it involves a question of law which is a little peculiar on account of the special provisions of the Marwar Succession Act.