- (1.) This is an appeal from the judgment and decree of the High Court of Judicature at Allahabad dated 30.7.1951 reversing the judgment and decree of the Additional Civil Judge of Allahabad dated 8.3.1943 passed in Suit No. 27 of 1940. The relevant facts are as follows:
(2.) One Cawashaw Dadabhoy Motishaw, a Parsi, (hereinafter referred to as the testator) died at Allahabad on 10.11.1937 leaving him surviving a step-brother (plaintiff 1) now represented by his widow and children, being respondents 1 to 8, a step-sister's son (originally defendant 4, subsequently transposed as (plaintiff 2) now represented by respondents 9 to 12, a step-brother's son (defendant 2) now represented by respondents 13 and 14, a step-sister (defendant 3) now respondent 15 and a step sister's daughter (defendant 5) now respondent 16. He is said to have left considerable properties which he acquired in or near Allahabad . Prior to his death the testator had on 11.3.1922 executed a holograph will in the following terms: "This is the last will and testament of Mr. Cawashaw Dadabhoy Motishaw, residing 20, Canning Road, Allahabad. I hereby give, devise and bequeath to my so called mother named Mrs. Shrinbai Maneckshaw Bejonji Mistri, wife of Maneckshaw Bejonji Mistri alias Photographer residing 20, Canning Road, Allahabad, her heirs, executors and administrators, for her and their own use and benefit, absolutely and for ever all my estate and effects, both real and personal, whatsoever and wheresoever and of what nature and quality soever, and I hereby appoint her the said Mrs. Shrinbai Maneckshaw Bejonji Mistry, sole executrix of this my will. Mrs. Shrinbai, the wife of Mr. Maneckshaw Bejonji Mistry, residing 20 Canning Road, Allahabad, is my adopted mother by my own will and accord and for which no one in the world has the right to dispute about her calling my own mother. This will has been made and written by myself with all my full mind with good heart and disposition and in sound state of my body and mind. In witness thereof I have hereunto set my hand this 11th day of March one thousand nine hundred and twenty two (1922)". There were two attesting witnesses to the will, namely, B. Hirji and M. B. Mistry who was the husband of Mrs. Shrinbai (defendant 1). Shrinbai applied for and on 18-8-1939 obtained probate of the said will from the High Court of Judicature at Allahabad and took possession of the estate.
(3.) On 13.4.1940 the testator's step-brother (plaintiff 1) filed a suit, being O. S. No. 27 of 1940, in the Court of the Civil Judge of Allahabad against Shrinbai paying for a declaration that the bequest in favour of Shrinbai was void in law, and that there was an intestacy in respect of the whole estate of the testator which became divisible amongst the heirs of the testator, for an enquiry as to who were the heirs of the testator according to the personal law applicable to Parsis, for administration of the estate by and under the direction of the Court and for necessary accounts and enquiries. The connection of the plaintiff was that the bequest to Shrinbai was void under S. 67, Indian Succession Act. Certain other persons who also claimed to be the heirs of the testator were impleaded as pro forma defendants 2, 3 and 4. Defendant 4 was later on transposed to the category to plaintiffs as plaintiff 2. Shrinbai, defendant 1, filed a written statement denying that the plaintiffs or the pro forma defendants were the legal heirs of the testator and pleaded inter alia that the provisions of S. 67, Indian Succession Act were not applicable to the facts and circumstances of the case and that in any case her heirs were under the will made the direct objects of a distinct and independent bequest and that consequently there was no intestacy and the plaintiffs had no locus standi to maintain the suit. Subsequently the two daughters of Shrinbai were, on their own application, ordered on 23.9.1940 to be added as defendants 5 and 6. A separate written statement was filed on behalf of those added defendants on the same lines as that of their mother. The pro forma defendants naturally supported the plaintiffs and the suit was contested only by Shrinbai and her two daughters.;