MADAN GOPAL Vs. RAMJIVANIBAI

JUDGEMENT

(1.) THE short question of interpretation of clause (b) of Section 57 of the Indian Succession Act which merited a short and instant answer, unfortunately, required long investigation of the law. Because, it was necessary to be definitive as is contended by the applicant's counsel, Shri N.K. Jain, on the question of interpretation on which little guidance from reported decision of this Court being available. I extract, therefore, not only clause (b) but also clause (a) which has a material bearing on the interpretation of the sister clause:

(2.) IN the instant petition validity is challenged of the impugned order by which substitution of a legal representative (who claimed his right in virtue of a will executed in his favour) was allowed giving rise to the legal contention of statutory interpretation aforesaid. Shri Jain has contended that until the concerned legal representative (who has been ordered to be impleaded by the Court below) has probated the will, he is not entitled to be so impleaded. Unfortunately, for him, toe law has a dear answer to the objection which is to be found in c1ause (ii) of sub -section (2) of Section 213 by which wills of the classes specified in clauses (a) and (b) of Section 57 are exempted from the requirement of being probated in order to establish, inter alia the legatee's right claimed under such will.

(3.) ALTHOUGH , according to me, the language of clause (b) is dear and needs no external aid for its interpretation, it may still be pointed out that the legislative history also supports the view taken by me. The Hindu Wills Act, 1870, which the Succession Act 1925 fully repealed, had a provision (in Section 2 thereof) parallel to aforequoted clauses (a) and (b). Accordingly, 1870 Act being fully repealed to make room for a complete Code for all communities, the old provision dealing with the rights of the particular communities, was re -enacted in new Code It may be mentioned that 1870 Act applied only to wills made by any Hindu, Jain, Sikh or Buddhist within the territories subject during that period to the control of lieutenant Governor of Bengal and in the towns of Madras and Bombay. As to the purpose of the enactment of 1870 it was observed in Administrator -General of Bengal v. Premlal, 22 I.T. 107 that its effect inter aha was to place a Hindu executor on the Same footing as the executor of an Anglo -Indian testator in so far as it concerned the taking out of probate.