Judgment :- MISHRAJ, J. 1. A proceeding for grant of probate of the last will and codicil of one D.B. Futnani which has been converted into a Testamentary Suit in T.O.S. No. 19 of 1984, has remained pending for about six years in the trial court and for another about four years in the instant appeal, only on the question of maintainability of the application for probate in this Court. A learned single Judge of this Court has answered the issue on the maintainability of the proceeding in this Court against the defendant/appellant. The defendant/appellant has invoked the appellate power of this Court under Clause 15 of the Letters Patent. Mohanlal and Madhusudan, who are father and son, have presented the application alleging inter alia that Vishanji D. Futnani (Caveat defendant) is the elder son of late D.B. Futnani. D.B. Futnani, it is not in dispute, originally lived in Bombay. The petitioner/plaintiff (respondent) lived in Madras and the Caveator/defendant (appellant) has been living in Calcutta. D.B. Futnani, however, came over to the city of Madras in the year 1981 and stayed till his death on 1-4-1983 with Mohanlals son, the second plaintiff Madhusudan. According to the first plaintiff/respondent D.B. Futnani came over to Madras after his wifes death, as there was no one to look after his needs at Bombay and the defendant/appellant who was at Calcutta was not able to give any care to D.B. Futnani at Bombay. 2. The case as narrated by the first plaintiff/respondent in his deposition has been incorporated by the learned single Judge in his judgment which is as follows: “Prior to 1981 he (D.B. Futnani) was staying with my mother in Bombay and on 30-5-1985 my mother passed away, so he was residing alone in Bombay. On 29-7-1981 my brother left my father alone at Bombay and went to Calcutta. When I came to know, I rang up to Bombay to speak with my brother. He told me that he has all alone there and so I sent my son to Bombay and I also went to Bombay and stayed with him till November, 1981 and then before Deepavali I requested him why he should not come to Madras and stay with our family. He agreed to my request. He told me that he has all alone there and so I sent my son to Bombay and I also went to Bombay and stayed with him till November, 1981 and then before Deepavali I requested him why he should not come to Madras and stay with our family. He agreed to my request. I brought him to Madras ever since 1981 and he was staying with me from that period.” According to the first plaintiff/respondent, D.B. Futnani executed the last will and codicil on 28-6-1982 and 29-3-1982 respectively at Madras where he lived from November 1981 to 1-4-1983, i.e., the date on which he died at Madras, leaving behind him properties at Bombay and other places including a bank balance in compulsory deposit of Rs. 4,600/- and Rs. 102/- in two banks at Madras, ten shares worth Rs. 12,000/- in Muralimohan Satram and Company (Madras) Private Limited and debt to the extent of Rs. 65,000/- and odd by Bharat Trading Corporation, Madras. The plaintiffs/respondents applied for probate. The defendant/appellant who had already entered caveat, however, objected to the entertainability of the application of probate in the Original Side of this Court on grounds inter alia that conditions under section 270 of the Indian Succession Act were not satisfied. The trial Court took up the issue of maintainability of the application as the first preliminary issue. It has decided as above in favour of the plaintiffs/respondents. 3. Learned counsel for the appellant has questioned the finding of the Court on the issue of maintainability of the application-suit for probate in the Original Side of this Court and submitted that the learned Judge has not appreciated the true scope and meaning of the expression “fixed place of abode” in Section 270 of the Indian Succession Act and has taken notice of very negligible/insignificant proportion of the properties of the deceased covered by the will in the city of Madras for holding against the appellant. He has, however, conceded that, in case, the Court finds that the deceased had fixed place of abode in the city of Madras or he had some tangible property within the ordinary civil jurisdiction of this Court, the Courts original civil jurisdiction will be attracted under Section 2(BB) of the Act within the definition of the District Judge of the place where the deceased had a fixed place of abode or had any property, movable or immovable, within the jurisdiction of the Court. “Fixed place of abode, “place of abode”, “place of residing”, “residence/resident”, “domicile”, etc. are words which are frequently found used in legislations and the Courts generally accept that, what is a ‘place or abode ‘or’ place of residence’ within the meaning of a particular statute is rather a question of fact than of law. There is almost an unanimity that ‘place of abode’ usually means place of residence and in dictionaries, ‘abode’ is defined to be habitation, dwelling, place of residence and ‘residence’ is defined to be place of abode, dwelling. In Strouds Judicial Dictionary, in Volume IV, page 2030, it is stated, “A mans residence, where he lives with his family and sleeps at night, is always his place of abode in the full sense of that expression.” In Blacks Law Dictionary VI Edition, meaning of ‘abode’ is indicated as ‘ones home, habitation, the place of dwelling or ‘residence’ and abode ordinarily means ‘domicile, living place in permanent character, place where a person dwells . ones fixed place of residence for the time being, etc. Oxford Dictionary also carries as the meaning for the word ‘abode’, dwelling place, ones home or archaic or sojourn, ‘residence’ to mean a place where a person resides and ‘abode’ and ‘domicile’ to mean dwelling place or ones home. Courts in England as well as in India have on several occasions examined the true scope and meaning of such expressions and appeared to be guided generally by the language and words preceding the words, ‘residence, abode, or domicile, place of abode or place of residence or permanent place of residence and/or fixed place of residence or fixed place of abode’. 4. The term ‘probate’ is derived from the Latin word ‘Probatio’, to prove; therefore, probate of a will means proving its genuineness in Probate Court. As a general rule, a will has no legal effect until it is probated. 4. The term ‘probate’ is derived from the Latin word ‘Probatio’, to prove; therefore, probate of a will means proving its genuineness in Probate Court. As a general rule, a will has no legal effect until it is probated. It depends thus on the speed, as a will should be probated immediately; no one should suppress it and no one should deny it, if it is true and genuine. Learned counsel for the appellant has drawn our attention to a candid statement, attributed to Lord Lindlay in the judgment of Court of ap peal of England In Re Gapes Will Trusts (1952 (2) All E.R. 579), which runs as follows: “I take it to be clearly settled that no person who is sui juris can change his domicile without a physical change of place, coupled with intention to adopt the place to which he goes as his home or fixed abode or permanent residence, whichever expression may be preferred. If a change of residence is preferred, the intention necessary to establish a change of domicile is an intention to adopt the second residence as home, or, in other words, an intention to remain without any intention of further change except possibly for some temporary purpose. .” The above view, however, does not appear to have any difference with the view that Courts in India have taken from the earliest days and we may in this respect refer to the judgment of the Calcutta High Court in the decision In the goods of Mohendra Narain Roy, (deceased) (5 Calcutta Weekly Notes. 377). The learned Judge of the Calcutta High Court was considering a case of a person who died at Calcutta, leaving behind him surviving a childless widow, a daughter by a predeceased wife, a brother and his widowed mother. He left no property, movable or immovable, within the jurisdiction of the Calcutta High Court, except a watch and a chain, an umbrella and some wearing apparel. He came to Calcutta for medical treatment about 17 days before his death and died at the house of his father-in-law at Calcutta. He allegedly had executed a Will prior to his death, whereby he had appointed his father-in-law as his sole executor. The father-in-law had obtained, accordingly, a probate of the Will from the High Court. He came to Calcutta for medical treatment about 17 days before his death and died at the house of his father-in-law at Calcutta. He allegedly had executed a Will prior to his death, whereby he had appointed his father-in-law as his sole executor. The father-in-law had obtained, accordingly, a probate of the Will from the High Court. In the application for setting aside the probate, objection was raised firstly as to the jurisdiction of the Court to entertain the application for probate and secondly, that the Will was not a genuine Will of the deceased. Speaking in particular about the jurisdiction, the learned Judge has said, “In the petition for probate the testator is described as a Hindu inhabitant of Calcutta, and as regards the property there can be no question that he left no property in Calcutta except a watch and chain, umbrella and wearing apparel.” “So far as the property is concerned, no misrepresentation or fraud had been practised on this Court. I am informed that the only property that the testator possessed was the property I have mentioned. I think, having regard to the facts of the case, by reason of the testator having “come to Calcutta only for the purpose of medical treatment, that would be a slender ground to charge that fraud was practised upon this Court. It is true, be had no fixed abode in Calcutta but that is not alleged and having regard to the circumstances that he came to Calcutta suffering from a serious complaint and it was not known how long he might have remained in Calcutta, it seems to me it would be going too far to say that the executor practised fraud on the Court by describing the testator as a Hindu inhabitant of Calcutta. As a matter of fact he resided in Calcutta and ha d been residing in one sense of the word since the 11th of February and he had come there for no other purpose than, so far as it appears, of having medical attendance.” A Judicial Commissioner in an appeal against the order of the District Judge, had said in the case of Govind v. Anant (1932 Nagpur 145) as follows: “The first ground of appeal is that the District Judge, Sagar, had no jurisdiction” “to entertain the application for probate. Chintaman had been stationed as a Railway Guard at Bina for 20 years where he occupied quarters in the railway lines. When he died he was in possession of the furniture of the quarters. The District Judge has held that on the date of his death, Chinthaman had no fixed place of abode at Bina because he was liable to be transferred. I am unable to agree with the District Judge the deceaseds residence had been fixed at Bina for 20 years. “Fixed” cannot possibly mean “permanent” because no one in this world can be said to have a permanent place of abode; everybody is liable to be transferred from his place of abode or to transfer himself to another place of residence.” In proximity of time, we may have some help on the subject from a judgment of Punjab High Court at Delhi (as it was then) in the case of Smt. Raj Rani v. R. Mool Raj (AIR. 1962 Punjab 62). There was an objection raised that the application under S. 276 of the Indian Succession Act was not maintainable at its circuit Bench at Delhi on the ground that Bansilal had no fixed place of abode at Delhi. The learned Judge speaking for the Court has said, “It is in evidence that Raizada Bansi Lal belonged to Ambala where the family has got an ancestral house in which he has a share. He has, however, been in Government service for a pretty long time before his death and was posted at different stations from time to time. In July, 1956, he was posted at Delhi as a Tahsildar in the Income tax Department and till the date of his death i.e. 1.3.1960, he remained posted there. Shrimati Raj Rani, petitioner, has stated on oath that during this entire period she and her husband were living in Delhi in different houses. In about 1959 a house at 9, Bhargava Lane, Boulevard Read. Delhi was allotted to her husband by the Government and he, as well as Shrimati Raj Rani, lived in that house till 1.3.1960 when he died. During their stay at Delhi a son” “was born to them on the 21st of February 1958, and for that purpose Shrimati Raj Rani was admitted to St. Delhi was allotted to her husband by the Government and he, as well as Shrimati Raj Rani, lived in that house till 1.3.1960 when he died. During their stay at Delhi a son” “was born to them on the 21st of February 1958, and for that purpose Shrimati Raj Rani was admitted to St. Stephens Hospital, Tis Hazari, Delhi.” “The respondents admit that the deceased was employed at Delhi and stayed here from July, 1956 to the date of his death, i.e. 1.3.1960. Their case, however, is that Delhi cannot still be termed as his permanent place of abode as envisaged by S. 276 of the Indian Succession Act. I regret I cannot accept this contention. In my opinion, the permanent place of abode is the one where a man has actually been living permanently and not merely as a temporary visitor or a temporary lodger. Obviously, the deceased did not come to Delhi just to pay a visit to this place and go back or to stay here in connection with some particular occasion, namely, to attend a marriage or a funeral or to see an exhibition. He was actually posted here and intended to stay here permanently unless” “he was transferred to another station. I am unable to agree with Mr. Narulas contention that permanent place of abode means the place to which ancestors of a person belonged or a place where his ancestral property is situate. I am sup ported in this view by that taken in Bhagat Singh Bugga v. Dewan Jagbir Sawhney AIR 1941 Cal. 670, and Govind v. Anant 71 Ind Cas 816 (AIR 1923 Nagpur, 145) Mr. Narula relies on Subramanian Chetty v. Maung Po Tha , 11 Ind Cas 851 (Bur) but this authority does not help Narula in any way.” Although there is no direct authority of the Supreme Court as one may wish to cite one way or the other, there are such observations as to the meaning of the word “reside” or “resides” in the context of the issue of a Magistrate under S. 488 Cr. P.C, 1908, in the case of Jagir Kaur v. Jaswant Singh ( AIR 1963 SC. 1521 ) in the following words: “The first word is “resides”. A wife can file a petition against her husband for maintenance in a Court in the District where he resides. P.C, 1908, in the case of Jagir Kaur v. Jaswant Singh ( AIR 1963 SC. 1521 ) in the following words: “The first word is “resides”. A wife can file a petition against her husband for maintenance in a Court in the District where he resides. The said word has been subject to conflicting judicial opinion. In the Oxford Dictionary” “it is defined as: “dwell permanently or for a considerable time: to have ones settled or usual abode: to live in or at a particular place.” The said meaning, therefore, takes in both a permanent dwelling as well as a temporary living in a place. It is, therefore, capable of different meanings, including domicile in the strictest and the most technical sense and a temporary residence. Whichever meaning is given to it, one thing is obvious and it is that it does not include a casual stay in, or a flying visit to a particular place. In short, the meaning of the word “would”, in the ultimate analysis, depend upon the context and the purpose of a particular statute. In this case the contest and purpose of the present statute certainly do not compel the importation of the concept of domicile in its technical sense. The purpose of the statute would be better served if the word “resides” was understood to include temporary residence. The juxtaposition of the words “is” and “last resided” in the sub-Section also throws light on the meaning of the word “resides”. The word “is” as we shall explain later, confers jurisdiction on a Court on the basis of a casual visit and the expression “last resided” about which also we have something to say, indicates that the Legislature could not have intended to use the word “resides” in the technical sense of domicile. The word “resides” cannot be given a meaning different from the word “resides” in the expression “last resided” and, therefore, the wider meaning fits in the setting in which the word “resides” appears. A few of the decisions cited at the Bar may be useful in this context.” (7) In Sampornam v. N. Sundaresan, 1952-2-Mad LJ. 573: ( AIR 1953 Mad 78 ), it was held that the word “resides” implied something more than a brief visit but not such continuity as to amount to a domicile. A few of the decisions cited at the Bar may be useful in this context.” (7) In Sampornam v. N. Sundaresan, 1952-2-Mad LJ. 573: ( AIR 1953 Mad 78 ), it was held that the word “resides” implied something more than a brief visit but not such continuity as to amount to a domicile. In Khairunnissa v. Bashir Ahmed ILR 53 Bom 781: (AIR 1929 Bom 410), on a consideration of the relevant authorities, it was pointed out that a casual or a flying visit to a place was excluded from the scope of the word “resides”. A Full Bench of the Allahabad High Court, in Arthur Flowers v. Minnie Flowers ILR 32 ALL 203, expressed the view that a mere casual residence in a place for a temporary purpose with no intention of remaining was not covered by the word “resides”. In Balakrishna v. Sakuntala Bai AIR 1942 Mad 666 it was held that the expression “reside” implied something more than “stay” and implied some intention to remain at a place and not merely to pay it a casual visit. In Charan Das v. Surasti Bai AIR 1940 Lah 449, it was held that the sole test on the question of residence was whether a party had animus manendi , or an intention to stay for an indefinite period, at one place, and if he had such an intention then alone could he be said to “reside” there.” (8) The decisions on the subject are legion and it would be futile to survey the entire field. Generally stated no decision goes so far to hold that “resides” in the sub-Section means only domicile in the technical sense of that word. There is also a broad unanimity that it means something more than a flying visit to or a casual stay in a particular place. They agree that there shall be animus manendi or an intention to stay for a period, the length of the period depending upon the circumstances of each case. There is also a broad unanimity that it means something more than a flying visit to or a casual stay in a particular place. They agree that there shall be animus manendi or an intention to stay for a period, the length of the period depending upon the circumstances of each case. Having regard to the object sought to be achieved, the meaning implicit in the words used, and the construction placed by decided cases thereon, we would define the word “resides” thus: a person resides in a place if he, through choice, makes it his abode permanently or even temporarily: whether a person has chosen to make a particular place his abode depends upon the facts of each case.- Some illustrations may make our meaning clear: (1) A, living in a village goes to a nearby town B to attend a marriage or to make purchases and stays there in a hotel for a day or two: (2) A, a tourist, goes from place to place during his peregrinations and stays for a few days in each of the places he visits: (3) A, a resident of a village, who is suffering from a chronic disease, goes along with his wife to a town for medical treatment, takes a house and lives there for about 6 months: (4) A, permanent res ident of a town, goes to a city for higher education, takes a house and lives there, alone or with his wife, to complete his studies. In the first two cases, A makes only a flying visit and he has no intention to live either permanently or temporarily in the places he visits. It cannot, therefore, be said that he “resides” in the places he visits. In the last two illustrations though A has a permanent house elsewhere, he has a clear intention or animus manendi to make the place where he has gone for medical relief in one and studies in the other his temporary abode or residence. In the last two cases it can be said that though he is not a domicile of those places: he “resides” in those places.” The clue as to animus manendi in the instant case is also the decision of the deceased to shift his residence from Bombay to Madras for medical relief and to stay in Madras so long as such medical relief was necessary. A temporary residence of this kind which is continued for an indefinite period and is not one which is temporary in the sense of a visit for a day or two to consult a physician or surgeon, to return again for further treatment, in our view, must receive the meaning of abode and a fixed place of abode, in that sense giving to the Court the jurisdiction to deal with the matter as to the grant of probate, at the instance of someone claiming through the person who lived within the jurisdiction of the Court until his demise. 5. In the case of Sukh Lal v. State Bank of India, Calcutta (AIR. 1967 SC 543), the Supreme Court has dealt with the meaning of the expression “place of residence” and has said as follows: “The expression” place of residence” connotes a place where a person has his dwelling house which need not necessarily be permanent or exclusive. A person may have more places of residence than one at a given time. A place occupied by a person with the intention of setting up a fixed, though not permanent abode would be deemed to be a place of residence. Sojourn for a purely temporary purpose will not constitute residence, and the place of sojourn will not be deemed a place of “residence” within the meaning of the Act, but where a person possesses establishments at more places than one and spends time more or less considerable in all those places, as exigencies of his occupation, vocation or fancy demand, he would be deemed to have a place of residence at each of those places.” 6. Learned counsel for the appellant has placed reliance to give to us a different impressions as to the meaning of the expression “fixed place of abode”, on the judgment of the Supreme Court in the case of Jeewanti v. Kishan Chandra (AIR 1962 SC., 3). In the said judgment considering the meaning of the word “residence”, as accruing in the context of the jurisdiction of the Court to entertain an application in a marriage dispute under the provisions of the Hindu Marriage Act, the Supreme Court has said, “In order to give jurisdiction on the ground of “residence”, something more than a temporary stay is required. It must be more or less of a permanent character, and of such a nature that the court in which the respondent is sued, is his natural forum. The word “reside” is by no means free from all ambiguity and is capable of a variety of meanings according to the circumstances to which it is made applicable and the context in which it is found. It is capable of being understood in its ordinary sense of having ones own dwelling permanently, as well as in its extended sense. In its ordinary sense “residence” is more or less of a permanent character. The expression “resides” means to make an abode for a considerable time, to dwell permanently or for a length of time, to have a settled abode for a time. It is the place where a person has fixed home or abode. Where there is such fixed home or such abode at one place, the person cannot be said to reside at a casual or temporary visit, e.g., for a health or business or for a change. If a person lives with his wife and children, in an established home, his legal and actual place of residence is the same. If a person has no established home and is compelled to live in hotels, boarding houses or houses of others, his actual and physical habitation is the place where he actually or personally resides.” 6 A. We are unable to take the approach as shown by the Supreme Court in this judgment as on the facts of this case, it is not possible to say that the deceased testator had no actual abode and physical habitation in the place where he died because there is no dispute to the fact that he personally resided at the said place for a considerable period of time. Moving his residence from Bombay to Madras might have been mainly for the reason of the expectation of better medical treatment with the help of his son, who has been residing in the City. But, he did make the city his fixed place of abode for a considerable period and during that time, he treated his Bombay home only as a temporary shelter as and when he went to Bombay to attend to some work as and when it was required for any legal and/or practical purposes. But, he did make the city his fixed place of abode for a considerable period and during that time, he treated his Bombay home only as a temporary shelter as and when he went to Bombay to attend to some work as and when it was required for any legal and/or practical purposes. We are not adverting to the other authorities that have been brought to our notice by the learned counsel for the appellant, because it is difficult in the face of the above to hold that we must read in the words “fixed place of abode” a permanent structure attached to earth and owned by the person concerned. It is neither ownership nor permanency of the structure which determines the place of abode. It is the living of the person and his intention to live, that decides as to the fixed place of abode of that person. 7. This detailed exercise as to the issue of “fixed place of abode” has been occasioned only because the learned counsel for the appellant has chosen to address us in this behalf in some details. The issue of jurisdiction of this court in the instant case is fully resolved on the fact conceded by the appellant that howsoever insignificant that properties might be, the deceased left behind him some movable properties in the city within the jurisdiction of this court. We have on this only to reiterate what the learned single Judge has recorded in his judgment in this behalf. The learned single Judge has found as follows: “Even though the properties at Madras left by the deceased may be very small, this Court will have jurisdiction as per section 270 of the Indian Succession Act: no doubt as per section 271, it shall then be in the discretion of this Court to refuse to exercise the said jurisdiction, if it could be more justly and conveniently tried by another Court. So, despite section 271 it cannot be said that in such a situation this Court has no jurisdiction. In the matter of Ramchand Gurdasmal (AIR 1956 Madras, 274), this Court has held as follows: ‘In regard to this clause the settled case-law is as follows: The existence of any property would be sufficient. Thus a watch and chain and an umbrella might be sufficient to give jurisdiction In re Mohendra Narain (5 Cal. WN. 377(A). In the matter of Ramchand Gurdasmal (AIR 1956 Madras, 274), this Court has held as follows: ‘In regard to this clause the settled case-law is as follows: The existence of any property would be sufficient. Thus a watch and chain and an umbrella might be sufficient to give jurisdiction In re Mohendra Narain (5 Cal. WN. 377(A). So also debts which are to be paid according to the terms of an agreement to the deceased or his heirs residing within the jurisdiction of the Court, Khubchand Bhai v. Motilbai (AIR 1936 Sind 150 (B). ‘Again the Court within whose jurisdiction the office of the officer dealing with the provident fund due to a deceased railway servant lies can entertain the application for grant of probate for the provident fund money: F.G. Simpson v. S.M. Benneti AIR 1946 Oudh 73.’ “In AIR 1944 Fd PC. 29 ( Asht Bhuja Kuer v. Deri Baksh ), it was also held that even where, by far the larger and more valuable part of the property of the testator, was in Oudh and only a small portion of the property was situate in Agra, the District Judge in Agra had jurisdiction to grant Letters of Administration” “with the Will annexed. It was further observed there that Section 271 does not go to jurisdiction but to discretion.” For the aforementioned reasons, we do not find any merit in the appeal and the appeal must fail. We have recorded at the outset how the application for the grant of probate has been delayed for almost a decade only on the question of maintainability. We are inclined to order that the trial Court shall be fully justified in refusing to either party any prayer for adjournment, unless supported by cogent materials and sufficient reasons, and proceeding with the hearing of the case for the disposal at the earliest. With the observation as above, the appeal is dismissed. Hearing fee is Rs. 1,500/- (Rupees one thousand and five hundred).