The expression "fixed place of abode" in Section 270 of the Indian Succession Act does not require a permanent structure attached to earth and owned by the person concerned. It is the living of the person and his intention to live that decides as to the fixed place of abode of that person.

MISHRAJ, J.

1. A proceeding for grant of probate of the last will and codicil of one D.B. Futnani which has been converted into a Testamentary Suit in T.O.S. No. 19 of 1984, has remained pending for about six years in the trial court and for another about four years in the instant appeal, only on the question of maintainability of the application for probate in this Court. A learned single Judge of this Court has answered the issue on the maintainability of the proceeding in this Court against the defendant/appellant. The defendant/appellant has invoked the appellate power of this Court under Clause 15 of the Letters Patent. Mohanlal and Madhusudan, who are father and son, have presented the application alleging inter alia that Vishanji D. Futnani (Caveat defendant) is the elder son of late D.B. Futnani. D.B. Futnani, it is not in dispute, originally lived in Bombay. The petitioner/plaintiff (respondent) lived in Madras and the Caveator/defendant (appellant) has been living in Calcutta. D.B. Futnani, however, came over to the city of Madras in the year 1981 and stayed till his death on 1-4-1983 with Mohanlals son, the second plaintiff Madhusudan. According to the first plaintiff/respondent D.B. Futnani came over to Madras after his wifes death, as there was no one to look after his needs at Bombay and the defendant/appellant who was at Calcutta was not able to give any care to D.B. Futnani at Bombay.

2. The case as narrated by the first plaintiff/respondent in his deposition has been incorporated by the learned single Judge in his judgment which is as follows:

“Prior to 1981 he (D.B. Futnani) was staying with my mother in Bombay and on 30-5-1985 my mother passed away, so he was residing alone in Bombay.

On 29-7-1981 my brother left my father alone at Bombay and went to Calcutta. When I came to know, I rang up to Bombay to speak with my brother. He told me that he has all alone there and so I sent my son to Bombay and I also went to Bombay and stayed with him till November, 1981 and then before Deepavali I requested him why he should not come to Madras and stay with our family. He agreed to my request. I brought him to Madras ever since 1981 and he was staying with me from that period.”

According to the first plaintiff/respondent, D.B. Futnani executed the last will and codicil on 28-6-1982 and 29-3-1982 respectively at Madras where he lived from November 1981 to 1-4-1983, i.e., the date on which he died at Madras, leaving behind him properties at Bombay and other places including a bank balance in compulsory deposit of Rs. 4,600/- and Rs. 102/- in two banks at Madras, ten shares worth Rs. 12,000/- in Muralimohan Satram and Company (Madras) Private Limited and debt to the extent of Rs. 65,000/- and odd by Bharat Trading Corporation, Madras. The plaintiffs/respondents applied for probate. The defendant/appellant who had already entered caveat, however, objected to the entertainability of the application of probate in the Original Side of this Court on grounds inter alia that conditions under section 270 of the Indian Succession Act were not satisfied. The trial Court took up the issue of maintainability of the application as the first preliminary issue. It has decided as above in favour of the plaintiffs/respondents.

3. Learned counsel for the appellant has questioned the finding of the Court on the issue of maintainability of the application-suit for probate in the Original Side of this Court and submitted that the learned Judge has not appreciated the true scope and meaning of the expression “fixed place of abode” in Section 270 of the Indian Succession Act and has taken notice of very negligible/insignificant proportion of the properties of the deceased covered by the will in the city of Madras for holding against the appellant. He has, however, conceded that, in case, the Court finds that the deceased had fixed place of abode in the city of Madras or he had some tangible property within the ordinary civil jurisdiction o