N. D. Ojha, J. - (1.) THIS is an applica tion for certificate under Article 133 (1) (a) (b) and (c) of the Constitution of India. Smt. Kamala Kunwar respondent No. 1 made an application for probate of a win executed by one Smt. Jaggo Bai on Octo ber 26, 1961. Beni Chand entered a caveat and filed a written statement contesting the claim of Smt. Kamla Kunwar. The applica tion was dismissed by a learned Single, Judge, but on special appeal by Smt. Kamala Kunwar the order of the learned Single Judge was set aside and probate of the will was granted to her by a Bench of this Court. Now Beni Chand has filed this ap plication for certificate. In paragraph 21 of the affidavit filed in support of the application for certificate it has been stated that "a decision has been recorded in favour of the applicant Kamala Kunwar who has been held entitled to a grant of probate and the property worth Rs. 1, 86, 799.14 accord ing to the plaintiff and Rs. 5, 90, 000/- accord ing to the defendants case covered by the Will has been held to pass to the plaintiff, Kamala Kunwar." A counter-affidavit has been filed by one Raman Lal as Pairokar of Smt. Kamala Kunwar but the aforesaid assertion made in paragraph 21 of the affi davit has not been specifically denied except making a bald statement in paragraph 11 that the contents of paragraph 21 of the affidavit were incorrect. In the rejoinder-affidavit the facts stated in the original affi davit were reiterated. We have perused the application for probate filed by Smt Kamala Kunwar. Annexure I to the said application contains the details of the property in res pect of which probate was sought for. Cer tain amendments were made in the list of properties and the total valuation of the properties after amendment is shown as Rs. 2, 00, 299.14 np. In this view of the matter there seems to be no doubt that the properties in respect of which probate was sought for were and still are valued at a mm of more than Rs.20, 000/-.
(2.) IT was, however, contended by the learned counsel for the respondent that the subject-matter of the proceedings for probate was the question as to whether the will in respect of which probate was asked for was the last will of Smt Jaggo Bai and was duly executed by her in accordance with law. It was urged that the grant of a probate per se did not confer any title in respect of the properties which were be queathed under the will and, therefore, the value of the properties could not be the sub ject-matter of the dispute within the mean ing of clause (a) of Article 133 (1) of the Constitution. Respondent's learned counsel further contended that even clause (b) of Article 133 (1) would not be applicable in asmuch as in order to attract the said clause the property respecting which the claim or question arises must be property in addition to or other than the subject-matter of the dispute. Reliance was placed upon the fol lowing observations made in the case of Chittarmal v. Shah Pannalal Chandulal, AIR 1965 SC 1440. "The variation in the language used in clauses (a) and (b) of Article 133 pointedly highlights the conditions which attract the application of the two clauses. Under clause (a) what is decisive is the amount or value of the subject-matter in the court of the first instance and 'still in dispute' in ap peal to the Supreme Court; under clause (b) it is the amount of value of the property respecting which a claim or question is involved in the judgment sought to be ap pealed from. The expression 'property' is not defined hi the Code, but having regard to the use of the expression 'amount' it would apparently include money. But the pro perty respecting which the claim or question arises must be property in addition to or other than the subject-matter of the dispute. If in a proposed appeal there is no claim or question raised respecting property other than the subject-matter clause (a) will apply; if there is involved in the appeal a claim or question respecting property of an amount or value not less than Rs. 20, 000 in addition to or other than the subject-matter of the dispute clause (b) will apply." In our opinion learned counsel for the res pondent is right in so far as he contends that in proceedings for grant of a probate the property bequeathed is not the subject-matter in dispute and Article 133 (1) (a) will not be attracted, but we are unable to agree with the submission that even clause (b) will not apply. Smt. Kamala Kunwar res pondent has been mentioned as the execu trix of the will and administratrix of the pro perty and is also one of the legatees. Beni Chand has been given nothing under this will. Once probate is granted to her she becomes entitled to the properties bequeath ed to her and will continue to be so entitled to the same unless any contrary decision is given by a competent court of law on a suit for declaration of title. In this view of the matter the order granting probate involves claim respecting property of a value of more than Rs. 20, 000/-. These properties are other than the subject-matter of the dispute. The judgment against which an ap peal is sought to be filed in the Supreme Court is at variance and Article 133 (1) (b) is clearly attracted. In Smt. Jasodabai v. State of Maharashtra, AIR 1970 SC 1972 a writ pe tition was filed praying that certain notices issued for declaration of lands in excess of the ceilings as surplus and requiring that they be surrendered, be quashed on the ground that the Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961 was unconstitutional. The properties which were affected by the notices in question were more than Rs. 20, 000/- and a certificate under Article 133 was prayed for but refused by the High Court In that connection the Supreme Court held: "The appellants before the High Court were attempting to save then property by challenging the validity of the Act and the decision of the Court that the Act was valid directly affected the civil rights of the parties in properties well over the mark in value. In these circumstances, the High Court could not refuse the certificate." It will be noticed that in Jasodabai, s case the properties which were sought to be declared as surplus were not the subject-matter of the dispute in the writ petition. The subject-matter in dispute in the writ petition was the notices issued under the impugned Act which were sought to be quashed on the ground that the Act was un constitutional. Obviously, therefore, Article 133 (1) (b) was in contemplation of the Lordships when they held that the High Court should have granted certificate under Article 133 inasmuch as its decision affected the properties valued at more than Rupees 20.000/-.
(3.) IN Central Talkies v. Dwarka Prasad, AIR 1956 AU 348 a Bench of this Court while considering the scope of Article 133 (1) (b) held that if a will is declared to be invalid the result would be that the en tire properties covered by the aforesaid document will be affected and, therefore, in determining whether the decision affects the property of Rs. 20.000/- or more, the value of the entire property should be taken into consideration.;