( 1 ) THIS Appeal is directed against the grant of Letters of Administration of the state of deceased Bai Kanta made in favour of the present Respondent by the learned Assistant Judge Mehsana in Civil Miscellaneous Application No. 24 of 1958 by his order dated. November 5 1959

( 2 ) THE present respondent Chhanalal Ambalal claiming to be entitled to the grant of Letters of Administration of the estate left by his deceased wife Bai Kanta as a legatee under a registered will made by Kantas deceased mother Bai Mangu on February 18 1941 had filed an application for the Purpose. The estate is listed not in a separate schedule but in para 4 of the application. The application was originally filed In the Court of the Civil Judge Senior Division Visnagar. The grant was however contested by the present appellants who had lodged a caveat. The respondent had therefore presented the application in the Court of the District Judge Mehsana where it was registered as Civil Miscellaneous Application No. 24 of 1958 and then transferred to the Court of the Assistant Judge Mehsana for disposal.

( 3 ) ORIGINAL applicants (respondents) case is that Bai Mangu was his widowed mother-in-law being the mother of his wife Kanta to whom he was married some time in the year 1934. Mangus husband Ambalal who was the uncle of the original opponents who are the appellants herein had died some time in year 1930 leaving behind him his widow Mangu his son Janakrai and his daughter Kanta. Ambalal was separate from his brother Mansukhlal who was the father of the appellants. His son Janakrai died some time in 1937. The estate consisting of a house a shop a room-let etc. all situated in Visnagar as also some moveable properties consisting of house-hold articles shares ornaments and other articles had thus devolved on Bai Mangu as the heir of her husband Ambalal and her son Janakrai. Thereafter Kanta was residing with her mother at Visnagar and was looking after her mother. On February 18 1941 Mangu had made a registered will of her estate and the testamentary disposition so made thereby was in favour of her only surviving child Bai Kanta an adult daughter as aforesaid.

( 4 ) THE original applicants case further is that while Mangu and Kanta were residing together in the Visnagar house a fire broke out in the house on the evening of January 28 1958 and the two were burnt alive and died. The applicant learnt about this mishap on the next day at Kalol where he was residing and serving in a mill since last 25 years. The possession of the partially burnt house was handed over to the original opponent No. 1 (appellant No. 1) by the P. S. I. of Visnagar on the very next day. The applicants case is that although Mangu and Kanta had died in the fire on the relevant evening Kanta had survived her mother Mangu and therefore on the death of Kanta the applicant as the husband of deceased Bai Kanta was entitled to the grant of Letters of Administration of the estate of Kanta by virtue of the will of deceased Mangu.

( 5 ) THE original opponents contested the grant inter alia on the grounds that the will was not duly executed and attested and that the testatrix Mangu was not in a sound and disposing state of mind at the time of execution of the will. They also contended that legatee Kanta did not survive the testatrix and therefore the legacy had lapsed and there was an intestacy and the property left by Mangu had devolved upon them as the heirs of Mangus husband. It was further contended that Mangu had no valid authority to make a will in respect of the properties mentioned in the will.

( 6 ) AT the hearing both the parties adduced oral evidence on the Issues raised in the matter and the learned Assistant Judge on an appreciation of the oral and documentary evidence on the record reached a conclusion that it was proved that Bai Mangu had made a will on February 18 1941 He also held it proved that Bai Mangu was in a sound and disposing state of mind at the time of the