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1905 DIGILAW 19 (ALL)

Jamna Kuar v. Daulat Rai

1905-01-24

BANERJI, BLAIR

body1905
JUDGMENT : BANERJI, J. This is an appeal from an order refusing to grant a certificate under Act VII of 1889. The reason for which the refusal was made is stated by the learned Judge to be this, that the deceased left a will and that having regard to the provisions of clause 4, section I of the Act, the applicant should apply for probate and not for a certificate under the Act. This view of the learned Judge is;clearly erroneous. Clause 4 of section I provides that a certificate shall not be granted under the Act with respect to any debt or security to which a right can be established by probate or letters of administration under the Indian Succession Act, 1865, or by probate of will to which the Hindu Wills Act, 1870, applies, or by letters of administration with a copy of such a will annexed. 2. It is manifest that the Indian Succession Act of 1865 is inapplicable to a case like this. The Hindu Wills Act of 1870 has not been extended to these provinces. Consequently the debt in respect of which a certificate was asked for was not a debt to which a right could be established by probate or letters of administration under the Indian Succession Act, or by probate under the Hindu Wills Act. The last portion of the clause refers to a will to which the Indian Succession Act, or by probate under the Hindu Wills Act. The last portion of the clause refers to a will to which the Indian Succession Act, or the Hindu Wills Act applies. Consequently clause 4 of section. I would not bar the hearing of the application in this case. The Court below was clearly wrong. We allow the appeal with costs, set aside the order of the Court below, and send back the case to that Court with directions to re-admit it under its original number in the register and dispose of it according to law.