RALLABHANDI VENKATA RATNAM Vs. RALLABHANDI RAJA RAM MOHANA RAO, MINOR BY HIS NEXT FRIEND MALLADI VISWANADHA SASTRI

JUDGEMENT

(1.) This appeal arises out of a suit for partition. The first question argued before us relates to the genuineness and validity of the Will of one Appa Rao. He died on the 5th July 1908 and a Will was executed by him on the same date. Then an application for Probate was made, but as no executor was designated in the Will, Letters of Administration with the Will annexed were granted on the 15th April 1909. The citations were properly served as required by law and evidence was taken as to the due and proper execution of the Will. An application was afterwards made by some of the parties for revocation of the Letters of Administration. That application was refused and the order was confirmed in appeal. It also appears that a suit was instituted by the second defendant in 1909 (Original Suit 79 of 1909), seeking a declaration that the adoption of the plaintiff by the 6th defendant, the validity of which depended on the authority granted by the Will, was invalid. That suit was dismissed by the first Court and the decree was confirmed by the lower Appellate Court and in second appeal by this Court. It is now argued on behalf of the appellants that they should have an opportunity of showing that the Will was not genuine and that the testator was not of sound and disposing mind when he signed the Will. It is contended that a distinction ought to be drawn between a grant of Probate and a grant of Letters of Administration with a Will annexed, so far as it affects the proof of the genuineness and validity of a Will. The procedure both with respect to an application for Probate and with reference to Letters of Administration with Will annexed is substantially identical and there is no reason for drawing a distinction between the two. The law is very clearly stated in Halsbury s Laws of England, Volume XIV, page 210, in these words: Probate and Letters of Administration with a Will annexed are conclusive evidence of the factum and validity of the Will." The case of Whicker v. Hume 7 H.L.C. 124 : 28 L.J. Ch. 396 : 4 Jur. (N.S.) 933 : 31 L.T. (O.S.) 319 : 115 R.R. 70 : 11 E.R. 50 lays down the law to the same effect. We think, therefore, that the question cannot be re-opened at this stage.

(2.) Then, the next question which is argued relates to the insurance money of Rs. 1,000. It is contended that the sum belongs to the joint family and cannot be treated as the separate, property of Appa Rao. Appa Rao had an income of his own, and in his Will he says that the money that was due to him from the Insurance Company was his own exclusive property and all the other property was joint family property. We do not think that it has been made out that the finding of the Subordinate Judge is wrong.

(3.) The third point raised before us relates to the amount of the marriage expenses of the 6th defendant s daughter, that is to say, of the daughter of the brother of the appellants. It was attempted to be argued by the learned Pleader for the appellants that the marriage expenses could not be charged against the joint family property at all, but no such issue was raised before the lower Court and the contention is clearly unsustainable. As regards this amount, Rs. 1,400 and odd have been awarded for the expenses. The appellants did not make any attempt to prove that that amount was not, as a matter of fact, spent. All that was argued before us was that another female member belonging to this family was married about six or seven years ago, and only Rs. 600 or 700 was spent in that marriage. But the expenses vary from time to time and in different cases and we have no reason to hold that the finding of the Subordinate Judge on this point is wrong. But it is rightly pointed out that the decree only makes defendants Nos. 2 to 5 and 9 liable for the expenses of this lady s marriage while, as a matter of fact, the plaintiff also is liable. This is a valid contention conceded by the respondents and the decree will, therefore, be amended by making the plaintiff liable along with defendants Nos. 2 to 5 and 9 for the marriage expenses of this lady in proportion to their respective shares.