( 1. ) THIS is an appeal under section 299 of the Indian Succession act, 1925, (hereinafter referred to as the Act) against order dated 2-1-1980 passed by the Additional District Judge, Shivpuri, refusing to grant probate in spite of holding the will executed by Smt. Dhanvanti, the testator, in favour of the appellant as duly proved.

( 2. ) THE appellant submitted an application for grant of probate in his favour in respect of a will dated 29-1-1970 (Ex. P. 1) executed by smt. Dhanwanti widow of Shri Ayodhya Prasad, resident of purani Shivpuri. The property bequeathed by the will in question is admittedly situated at shivpuri.

( 3. ) THE respondent opposed the grant of probate inter alia on the ground that the will set up by the appellant is not a genuine document.

( 4. ) THE learned Additional District Judge, after recording the evidence of the parties, held that execution of the will in question has been duly proved and that it is the last will of the testator Smt. Dhanwanti but has refused to grant probate holding that a Hindu need not be given a probate under will. Aggrieved by this refusal to grant probate, the appellant has preferred this appeal.

( 5. ) IN this appeal, Miss Kusum Shinde, learned counsel for the appellant, contended that even if grant of probate in respect of the will in question being executed by a Hindu may not be necessary yet when an application is moved for grant of probate, the Court cannot decline to grant it on proof of the factum of execution of the will. Shri K. N. Gupta, learned counsel for the respondent argued in support of the impugned order and attacked the finding recorded by the learned additional District Judge in favour of the appellant that the will is duly proved. He contends that the will has not been duly proved inasmuch as the attestation has not been proved according to the provisions of section 63 of the Act, that the learned Additional District Judge has overlooked the fact that the appellant had taken active part in getting the will executed in his favour, and, that even otherwise the impugned order is in accordance with law.

( 6. ) HAVING heard the learned counsel for the parties, I have come to the conclusion that the appeal deserves to be allowed.

( 7. ) SECTION 213 of the Act runs as under :-

"213. Right as executor or legatee when established.- (1) No right as executor or legatee can be established in any Court of justice, unless a court of competent jurisdiction in India has granted probate of the will under which the right is claimed, or has granted letters of administration with the will or with a copy of an authenticated copy of the will annexed. (2) This section shall not apply in the case of wills made by muhammadans, and shall only apply :- (i) In the case of wills made by any Hindu, Buddhist, Sikh or jain a where such wills are of the classes specified in clauses (a) and (b)of section 57, and, (ii) in the case of wills nude by any Parsi dying, after the commencement of the Indian Succession (Amendment) Act, 1962, where such wills are made within the local limits of the ordinary/civil jurisdiction of the High Courts at Calcutta, Madras and Bombay and where such wills are made outside those limits, in so far as they relate to immovable property situate within those limits. " According to sub-section (2) of section 213 of the Act, sub-section (1) applies only in case of will made by any Hindu where such wills are of the classes specified in clauses (a) and (b) of section 57 of the Act. Now, section 57 of the Act runs as under:-

"57. Application of certain provisions of part to a class of wills made by Hindus, etc.- The provisions of this part which are set out in Schedule III shall, subject to the restrictions and modifications specified therein, apply- (a) to all wills and codicils made by any Hindu, Buddhist, Sikh or Jaina on or after the first day of September 1870, within the territories which at the said date were subject to the Lieutenant Governor of bengal or