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1963 DIGILAW 35 (GAU)

In the Matter of Rajkumar Gopalsana Singh v. .

1963-06-10

T.N.R.TIRUMALPAD

body1963
ORDER : The appellant filed Judicial Misc. Case No. 12 of 1962 under Sec. 276 of the Indian Succession Act before the District Judge for grant of probate of an oral will Alleged to have been made by one Kh. Ratan Singh about 2 weeks before his death, which took place on 21-2-1960. The deceased Ratan Singh was stated to be a Hindu and the properties left by him were said to consist of ingkhol, lou and house besides moveable properties such as cycle, money and other articles of a total value of Rs. 800/-, out of which the moveable properties were said to be of a value of Rs. 500/-. The appellant was said to be the executor appointed under the will. 2. The Office of the District Judge raised an of objection that under Sec. 57(c) and Sec. 63 of the Indian Succession Act, a Hindu cannot make a legal will orally after 1-1-1927. The learned District Judge upheld this objection raised by the Office and dismissed the application. Against that order, the appellant has come up in appeal to this Court. Mr. Ibotombi Singh, Government Respondent. Advocate appeared as amicus curiae, at my request argue the other side. 3. After hearing the arguments of the learned counsel for the appellant and of Mr. botombi Singh, I am satisfied that after 1-1-1927 a Hindu cannot make an oral will and further that a probate of an oral will cannot be granted under Sec. 276 of the Hindu Succession Act. In support of the arguments of the appellant, the appellant relied on that Full Bench decision, Pitam Lal v. Kallu Ram, AIR 1931 All 489 (FB). But it was clear from the said decision that it related to a will made before the Indian Succession Act became law. Hence the said decision cannot apply to the present case. As far as the Union Territory of Manipur is concerned, Indian Succession Act was made applicable to this Territory in 1957 and the oral will was said to have been made in 1962. Hence, the provision of the Indian Succession Act applies to the said will. Section 57(c) of the Indian Succession Act, has made the said Act applicable to all wills executed by a Hindu after 1-1-1927. Hence, the provision of the Indian Succession Act applies to the said will. Section 57(c) of the Indian Succession Act, has made the said Act applicable to all wills executed by a Hindu after 1-1-1927. Section 63 of the Act makes it obligatory in the case of unprivileged will that the will should be in writing and that it should be signed by the testator or his mark affixed or it should be signed by some other person in the testators presence and by his direction aid further that it should be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the will or has seen some other person sign the will in the presence or by the direction of the testator or has received from the testator a personal acknowledgment of his signature or mark or of the signature of such other person. It is clear from this that after 1-1-1927, there cannot be an oral will by a Hindu. 4. Nor can there be any probate of an oral will under Sec. 276 of the Indian Succession Act. The section itself provides for the will to be annexed to this application. This can only be done in the case of a will, which is in writing. Thus, the appellant cannot apply for probate of an oral will. Section 213(i) of the Indian Succession Act provides that no right as executor or legatee can be established in any Court of Justice, unless a Court of competent jurisdiction has granted probate of the will under which the right is claimed or has grantee Letters of Administration with the will or with a copy of an authenticated copy of the will annexed. This again provides that the will shall be in writing. But Sub-Sec. 2 of the Section 213 states that Sub-Sec. 1 shall apply only in the case of wills made by any Hindu where such wills-are of the classes specified in clauses (a) and (b) of Sec. 57. This will mean that in the case of certain wills made by a Hindu no probate will be necessary. If therefore the appellant can come under the provision of Section 213(2) of the Succession Act, he may proceed without obtaining a probate. But it is clear that no probate cart be granted of an oral will. This will mean that in the case of certain wills made by a Hindu no probate will be necessary. If therefore the appellant can come under the provision of Section 213(2) of the Succession Act, he may proceed without obtaining a probate. But it is clear that no probate cart be granted of an oral will. The application was, therefore, rightly rejected by the District Judge. The appeal fails and it is dismissed. Appeal dismissal.