Munni vs Kanhaiya Lal and Others

Banerji and Aikman, JJ.—The suit in which this appeal has arisen was brought by the respondent to recover possession of the property which once belonged to her father Bansidhar. She alleged that Bansidhar had made a will in writing before his death under which she acquired a right to his property; she also said that she was Bansidhar''s heir according to Hindu law and was, as such, entitled to the property. The defendants claimed to be the heirs of Bansidhar, on the allegation that the property was the joint ancestral property of them and Bansidhar, and they denied the will. The Lower Court has found the will to be genuine, it has also found that the property was the separate property of Bansidhar, and it has decreed the claim.

The learned Counsel who has appeared here for the defendants appellants has not questioned the finding of the Court below as to the genuineness of the will. What he contends is that the plaintiff, not having obtained probate of the will on which she relies, is not entitled to maintain the suit on the strength of the will.

We are unable to accede to this contention. The only Act of the Legislature which provides for the grant of probate of wills of Hindus in these Provinces is Act No. V of 1881. That Act does not contain any provisions similar to the provisions of Section 187 of the Indian Succession Act, which are to the effect that a right as executor or legatee under a will cannot be established in any Court without obtaining probate of the will. That section was extended to Hindus, by the Hindu Wills Act of 1870, but the Hindu Wills Act is applicable only to the Lower Provinces of Bengal and to the towns of Bombay and Madras. From the fact that the Probate and Administration Act, 1881, contains no provision similar to that contained in Section 187 of the Indian Succession Act, it must be presumed that, save whore the Hindu Wills Act, 1870, is in force, it is not obligatory on a person claiming under the will of a Hindu to obtain probate of the will before instituting his claim, This view was adopted in the case of Krishna Kinkur Roy v. Panchuram Mundul ILR Cal. 272, and a similar view was taken by this Court in Thakurain v. Ram Charan 1895 WN 87. We are accordingly of opinion that the plaintiff was not precluded from maintaining her suit by reason of her not having obtained probate of the will of her father. No other question was raised before us. The defendants'' allegation as to the family and the property being joint was negatived by the evidence of Balram, defendant. In our judgment the decree of the Court below was right. We dismiss this appeal with costs.