DWARKA PRASAD GUPTA, J. - (1.) THIS second appeal has been filed by the mortgagee against the judgment and decree passed by the learned Civil Judge, Doongarpur, up holding the decree passed by the Munsif, Sagwara, in a suit for redemption.
(2.) THE property in dispute between the parties, which is situated in the town of Sagwara, belonged to one Nihalchand who mortgaged the suit house with possession with Jadavchand, father of the defendant for a sum of Rs. 580/ - by a registered mortgage -deed dated January, 7, 1920 for a period of 15 years. Nihalchand mortgagor died leaving the plaintiff Jhumaklal as the nearest reversioner, being the son of Nihalchand's nephew. Nihalchand also executed a will dated May 14, 1945 leaving all his immovable property to the plaintiff Jhumaklal.
(3.) AS the original mortgagee, Jadavchand had expired, plaintiff Jhumaklal filed a suit for redemption of the mortgaged property against the defendant and stated that he was willing to pay the mortgage amount to the mortgagee's legal heir. In the written -statement, defendant Chhaganlal addmitted that the suit property was mortgaged by the deceased Nihalchand in favour of his father Jadavchand. However, the defendant denied that the plaintiff was the legal heir of the mortgagor Nihalchand and was entitled to redeem the property. It was also pleaded by the defendant that he and his father during the continuance of the mortgage, had spent a sum of Rs. 4884.25 on making repairs and constructions in the mortgaged property and that in case a decree for redemption is passed, the defendant was entitled to the re -imbursement of the aforesaid amount spent by him on repairs and on making constructions in the mortgaged -property together with interest thereon in all a sum of Rs. 6816 62. The suit for redemption was decreed by the trial court and the decree was upheld by the first appellate court; and it was held by both the courts below that the plaintiff was entitled to claim redemption both on the ground that he was the nearest heir of deceased Nihalchand and also on the ground that Nihalchand had executed a registered will in favour of the plaintiff on May 14, 1945. It was held that the plaintiff's father Ratan Chand was the adopted son of Talak Chand who and Gulabchand father of Nihalchand were both real brothers. On the question of improvements alleged to have been made by the mortgagee, it was held that the mortgagee was entitled to a sum of Rs. 316. 90 in respect of repairs and improvements, besides the principal amount of Rs. 580/ -, in all a sum of Rs. 896.90. The first question, which was argued in this appeal, was that the plaintiff could not claim any right to the suit property on the basis of an unprobated will. The execution of the will by Nihalchand in favour of the plaintiff has been found proved by both the courts below and the finding in respect of that question of fact has not been challenged before me. Section 213 of the Indian Succession Act does not affect the vesting of the estate of the deceased in any particular person for which must really be governed by the personal law of the parties. Thus the Jack of probate does not affect the legal right of a legatee under the will. What Section 213 provides is that a person seeking to establish his right in any court of justice as an executor or a legatee under a will must have obtained the probate of the will, under certain circumstances mentioned in that Section. So far as the right of ownership of immovable property is concerned, it is not necessary for a legatee to obtain a probate in respect of the will executed by the deceased. The aforesaid view has been taken by this Court in Sheonath Singh v. Madanlal 1959 RLW 593 and in Mst. Jadav v. Ram Swarup and Anr. AIR 1961 Raj 402. Thus the proposition can no longer be disputed that the absence of a probate does not debar the filing of a suit by the legatee in respect of any immovable property devolving upon such legatee by virture of the will.;