- (1.) THIS F. A. F. O. is directed against the Order of the Court below granting probate to the widow of the deceased testator. The respondent No. 1 had applied for grant of probate of the will of her late husband under Section 276 of Succession Act (hereinafter referred to as the Act) which was contested by the appellant before the Court below. Parties are admittedly Indian Christians and Sri P. I. Thakur Dass is said to have died on 2-12-62. He had executed a will on 18th July. 1957 which was propounded to be the last will executed by him. In her application the widow claimed to be one of the beneficiaries under the will and the opposite parties were the sons and daughters of the deceased. The Court below, on the evidence before it, came to the conclusion that the will in question had been duly executed by late Sri P. I. Thakur Dass in a proper state of mind and after fully understanding the same in the presence of the attesting witnesses. The Court, therefore, granted probate of the will dated 18th July, 1957. Aggrieved by this Order, the appellant has come up in appeal.
(2.) AT the very outset Sri A. K. Banerji appearing for the appellant has contended that no probate could be granted in the present case as nobody had been appointed as an executor under the will and only Letters of Administration could have been granted to her in view of S. 234 of the Act. It may be recalled that there was a fire in the record room of the District Judge, Allahabad and it has been reported that the entire record of this case had been burnt at that time. This Court therefore, directed reconstruction of the material parts of the record and this has since been done and the parties have filed their paper books containing the necessary pleadings, documents and copies of statements, etc. The respondents in their paper book have filed the copy of the petition for the grant of probate in para. 5 where of the petitioner has claimed herself to be only a beneficiary under the will. In the main petition also there is no allegation anywhere that she had been appointed an executor under the will. On this basis it is sought to be argued that no probate could be granted to respondent No. 1. He has referred to Ss. 222 and 276 (1) (e) of the Succession Act in this connection. Section 276 provides for the manner in which an application for grant of probate or for letters of administration should be made. Sub-clause (e) of sub-sec. (1) thereof provides that a petition for grant of probate must state therein that he/or she was an executor appointed under the will. This provision is mandatory and in the absence of such an averment the petition was liable to be rejected. Section 222 of the Act also provides that probate of the will can be granted only to an executor of the will. Thus Ss. 222 and 276 (1) (e) read together lay down that probate can be granted only to an executor named in the will and the fact that the applicant was such an executor must be stated in the application. It appears that such a defect was never pointed out earlier nor any such issue was raised in the Court below. In this Court a certified copy of the will has been filed by the respondent before me which shows that the applicant has been appointed as an executrix therein. The actual words used in paragraph 2 of the will are; "till such time as my wife Sushila is alive as my survivor even it my son Ajit attains majority, she is the sole owner and chief executrix of every thing mentioned above. . . . . . without the consent of my son Ajit. "
(3.) FROM a perusal of above paragraph of the will it does appear that the testator had expressly appointed the applicant as an executor of his will. Apart from this along with the application for grant of probate an affidavit of valuation was filed in which it was stated that the applicant was an executor under the will. It is urged by the appellant that these words appear to have been copied out from the form which is prescribed under the Court-fees Act and as such it cannot be said that the word 'executor' had, in fact, been used by the applicant in the original application. As the original record has been destroyed in a fire I have no means of ascertaining whether a printed form of affidavit had been used by the applicant. No such objection had been taken in the Trial Court where it was possible to examine this aspect. Now I do not consider that it would be proper for me to hold otherwise. I would, therefore, treat that such an allegation was consciously made in the affidavit. Since this affidavit forms part of the main petition it must be held that there was substantial compliance of the legal requirements of sec. 276 (1) (e) of the Act. It was next urged that the original will had not been placed on record and the document flied in the case was not admissible in evidence. No probate, therefore, could be granted in respect of that will. The basis of this argument is a stray mention in the statement of the applicant herself that two wills were executed simultaneously and only one of them which is Ex. 1 on record was handed over to her by her late husband. The words 'true copy' had been noted by her husband at the time of handing over Ex. 1 to her and the endorsement was also initialled by him. On this basis it was urged that Ex. 1 was merely a copy of the original will and unless loss of the original will was proved no secondary evidence of the same would be admissible. However, this does not appear to be correct. The applicant does not claim to have been present when the will was executed. She only stated that two wills were executed. The first copy was given to their son Ajit and the carbon impression was handed over to her. At the time of handing over the deceased had mentioned the words 'true copy' on it and put his initials also. The attesting witnesses have, however, stated that both the wills containing identical matter had been executed simultaneously by the testator and were duly attested by them. If the will was prepared in this manner and both of them were duly signed by the testator and also attested by witnesses of the salve then both of them would be originals and either of them could be used as primary evidence. The mere fact that on one of such original wills the words 'true copy' have been subsequently appended by the testator (after the same had been executed in accordance with law) would not turn it into a mere cony of the original. It will still remain to be the original will in view of Sec. 62 of the Evidence Act.;