The main legal point established in the judgment is the requirement of probate for establishing rights under a will, as governed by Section 213 of the Indian Succession Act.

These three appeals relate to the same properties and are being fought between the same parties. The 1st defendant (I speak with reference to O. S. No. 106 of 1961) is the appellant and claims to be the mortgagee of the properties covered by S. A. No. 784 of 1967 and his wife, being the mortgagee of the properties covered by S. A. No. 785 of 1967 is the appellant therein. The 1st defendant is the donee under Ext. D7, to set aside which O. S. No. 106 of 1961 was brought, and S. A. No. 991 of 1966 relates to that suit. The properties covered by Ext. D7 gift were claimed by the donor, the 2nd defendant, to be her own and although she has died after filing her written statement, the 1st defendant sustains the same plea and stands to benefit by Ext. D7 being held valid. Himself and his wife being mortgagees in possession, resisted the actions for redemption brought by the plaintiff, on the ground that the plaintiff is not the owner of the equity of redemption under the will, Ext. P1 (original is Ext. D3).

The same plaintiff in O. S. No. 106 of 1961 seeks to set aside the gift, Ext. D7, claiming to be the owner of the properties covered by that deed. Thus, all the three suits are brought by the plaintiff on the basis that he is the owner under a will, Ext. P1, executed by one Cherian Daniel, the husband of the 2nd defendant. The precise claim of the plaintiff is that Cherian Daniel and his widow, the 2nd defendant, together executed Ext. D3 as early as 17-12-1919 in favour of the plaintiff's father, Simon Isaac, the nephew of Daniel. Simon Isaac in turn executed Ext. P6 of 1107 in favour of the 1st plaintiff, the eldest son, and by some internal arrangement among the sons of Isaac, the 2nd plaintiff also claims rights in the properties.

Thus, plaintiffs 1 and 2 assert ownership of the properties in the schedules to the three suits, virtually on the strength of Ext. D3. The defendants repudiate this right based on the contention that Ext. D3 is inoperative containing no dispositive words and that if that deed is to be construed as a will there is an additional barrier in the way of the plaintiff getting a decree because no probate has been taken out as required by Section 213 of the Indian Succession Act. The trial court took the view that Ext. D3 was a settlement deed or a gift and decreed all the suits in favour of the plaintiff.

The appellate court departed from the construction of Ext. D3 a gift and held that it was a will but even as a testamentary deed it conferred rights on the plaintiffs' father, Isaac, and so, confirmed the decrees. The contentions put forward before me will depend, for their fruitfulness, upon a construction of Ext. D3. If it is a gift or a settlement deed, as argued by respondents' counsel, the decree must stand confirmed. On the other hand, if it is a will, as held by the learned District Judge, then the objection on the basis of Section 213 of the Indian Succession Act may have to be considered. There is a third point raised now that there is no finding that the properties belonged to Daniel as against the wife, the 2nd defendant, and that, therefore, the decrees granted could not be confirmed because only the properties of Daniel could be derived by the plaintiffs' father, Isaac, even on the terms of Ext. P1 read as a will, since the 2nd defendant has transferred her properties while alive. I will consider these three contentions briefly.

2. Ext. D3 was jointly executed by the husband and wife, Daniel and the 2nd defendant, and at the threshold, one has to consider whether there are any dispositive words used in the deed so as to convey the rights covered by it. While there is considerable force in the contention of the appellant that there are no such words, I am not inclined to frustrate the purpose of Ext. D3 unless I am compelled to do so by the total lack of the necessary words of disposition. The following excerpt from Ext. D3 is useful to gather the intention of the executants.

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