MOHAMMAD KASIM Vs. MT. MAZHARBI

JUDGEMENT

(1.) THIS appeal has been filed by the petitioner, Mohammad Kasim against the order of the learned Additional District Judge, Bilaspur, rejecting his application for probate. The application was filed by the petitioner appellant as executor and legatee for probate of the will of his deceased sister Mt. Mariam Bi, widow of Kadir Hussain. Mariam Bi is said to have made a will on 15th July 1940. She died at Raipur on 12th February 1941. It is admitted that she formerly lived at Bilaspur with her son Abdul Kaddus, now deceased, till his death on 4th March 1940. It is also admitted that after the death of her son she went to live with her brother Mohammad Kasim-petitioner at Raipur and that she lived with him till her death. The application for probate was, however, filed by the petitioner Mohammad Kasim not in the District Court of Raipur but in the Court of the Subordinate Judge, First Class, Bilaspur, on the ground that the testatrix had left property in the district of Bilaspur of this province. It was alleged that Inasmuch as the testatrix has left moveable property within the jurisdiction of the Bilaspur Court, that Court was competent to grant probate under the provisions of Section 270, Succession Act, (Act XXXIX [39] of 1925). The property which is alleged to have been left by the testatrix consists of a 1/6th share in the assets standing in the name of her son Abdul Kuddu in the shape of bank deposits at Bilaspur. She claimed this 1/6th share in the property by inheritance, as mother, under the Muhammadan law. Her right to this 1/6th share has not been denied by the other side. Testatrix made the will bequeathing to her brother (appellant here) this very 1/6th share. The application was opposed by the widow and children of Abdul Kuddus, who was the son of the testatrix, and it was rejected by the learned Judge in the Court below, on the short ground that the testatrix had left no property movable or immovable in the Bilaspur district within the jurisdiction of his Court. It is quite clear from the contents of the application for probate that it was filed in the Court of the Subordinate Judge, First Class, Bilaspur, simply on the ground that that Court had power to grant probate, as the testatrix had left movable property, viz., the 1/6th share in the assets of her deceased son, within the jurisdiction of the Bilaspur Court. The Court having negatived this allegation and having found that the testatrix had left no property within the jurisdiction of the Bilaspur Court, rejected the application for probate. The petitioner has, therefore, preferred this appeal against the order of the lower Court.

(2.) IT is admitted that Abdul Kuddus did leave behind movable property worth over five thousand rupess at Bilaspur. It is also not disputed that the testatrix was entitled to 1/6th share therein, under Muhammadan law. The only question, therefore, that falls to be considered, is whether it can be held that the testatrix left movable property within the jurisdiction of the Bilaspur Court, in the shape of the 1/6th share in the assets of her son Abdul Kuddus.

(3.) THE word "property" has been defined in Wharton's Law Lexicon (Edn. 14) by A.S. Oppe as follows: Under the Law of Property Act, 1925, Section 205, 'Property' includes anything in action and any interest in seal or personal property. There must be a definite interest, a mere expectancy as distinguished from a conditional interest is not a subject of property. If we apply this test, it is beyond question, that the testatrix did possess a definite interest and not a more expectancy, namely, the 1/6th share in the assets of her deceased son, Abdul Kuddus. As a matter of fact, after the death of her son, she became a tenant-in-common, under the Muhammadan law, with the other heirs of Abdul Kuddus. In this connection the following observations in the judgment of the Full Bench case reported as Ram Shankar Lal v. Ganesh Prasad 29 ALL. 385. 896 are worth quoting: Does the word 'property' as used in that Act mean the actual physical objects alone, or does it embrace rights and interests existing in or derived out of the actual physical object ? The word 'property' is nowhere defined in the Act. It is a word of very comprehensive meaning. Lord Langdale, M.R. described it as being 'the most comprehensive of all terms which can be used, inasmuch as it is indicative and descriptive of every possible interest which a party can have'. Jones v. Skinner (1835)