SHEONATH SINGH Vs. MADANLAL

JUDGEMENT

(1.) THIS is a second appeal by the plaintiff Sheonath Singh in a suit for possession and cancellation of a will.

(2.) THE material facts may be shortly stated as follows. It is common ground that kansingh deceased and the plaintiff Sheonath Singh are first cousins. On 15-111948, kansingh made the will Ex. 1 in favour of one Madanlal by which he be-quested all his movable and immovable property to the said Madanlal. Sheonath Singh thereupon instituted the present suit during the life-time of Kansingh on 2912-1948, on the allegations that Kansingh was a member of a joint Hindu family consisting of himself and the former and that he had no right to make a will of the joint family property in the manner in which he did. The suit was originally brought against Kansingh only and was merely for a cancellation of the will. Kansingh subsequently died on 28-9-1949. Thereupon the plaintiff amended his suit, im-pleaded Madanlal as defendant in place of Kansingh deceased and prayed for possession also. The Munsiff Dausa in whose court the suit had been filed dismissed it in the first instance by his judgment dated 28-3-1952. The Munsiff found against the plaintiff on all the contentions raised by him except that he held that the plaintiff was the nearest heir of the deceased Kansingh, but he also held that that was of no materiality as in his view Kansingh was a separated member and had a right to make a will with respect to his own property. The Munsiff further held that it was unnecessary for the defendant to obtain a probate of the will in order to succeed in his claim to the property of the said kansingh under that will. The plaintiff then went in appeal to the District Judge, jaipur District, Jaipur. It appears to have been strenuously urged before the learned District Judge that the trial court should not have decided that the will could be given effect to even though it was unprobated, without framing an issue on that point, and that in any case that court had fallen into error when it came to the conclusion that Section 213 of the Indian Succession Act, 1925 (Act No. 39 of 1925) (hereinafter referred to as the Indian Act) was applicable to the prescnt case and not Section 213 of the Jaipur Succession Act, 1943 (Act No. XIX of 19431 (hereinafter referred to as the Jaipur Act ). It appears to have been conceded before the learned appellate Judge that if the jaipur Act was held to be applicable to the facts of this case, then the plaintiff was bound to succeed as the defendant could not obtain any right under the will unless a probate thereof had been obtained by him in accordance with the provisions of the aforesaid Act. In this view of the matter, the learned District Judge remanded the suit with a direction to the trial court to decide whether the present case was governed by Section 213 of the Jaipur Act or by Section 213 of the Indian Act, and, further, if the latter Act applied, whether the defendant could succeed in establishing his rights under the will without obtaining a probate thereof. The Munsiff after remand held that the par- ties were governed by the Indian Act as it had come into force in this State before the present suit was decided and that under that section it was entirely unnecessary for the defendant to take out a probate of the will in suit. The Munsiff, there fore, again dismissed the suit. The plaintiff went in appeal to the District Judge, Jaipur District Jaipur, who also affirmed the judgment of the trial court on 2-12-1953. The plaintiff has now come up in second appeal to this Court.

(3.) THE only question for determination in this appeal is one of law, namely, whether the finding of the courts below to the effect that the parties were governed in this case by Section 213 of the Indian Act and not by the corresponding section of the Jaipur Act is correct.