This is an appeal against the Order of Ist Additional District Judge, Hyderabad dated 24th May, 1976 and also against the Order dated 2-12-1976, whereby the caveat of the appellant against grant of probate to the respondent was dismissed by the first order and probate was granted to the respondent in respect of the will executed by Mst. Moral Bai decease] by the second order.
2. The appellant is a tenant in respect of a shop in property No. D-1562, Rasham Gali, Hyderabad and the landlady of the same is Mst. Moral Bai deceased, who had filed ejectment application against the appellant and her application had been granted. But in appeal by the appellant the eject--ment order was set aside. The appeal of the respondent Mst. Motal Bai succeed in the High Court, and therefore, she filed L. P. A No. 3 of 1970, which is pending. During the pendency of the L. P.
A. Mst. Motal Bai died on 7-10-1974 and on 8-1-1975 the present respondent Ram Chand filed an application under Order XXII, rule 3, C. P. C., for being impleaded as a legal representative of Mst.
Motal Bai in the L. P. A. Claim--ing that he is adopted son of Mst. Motal Bai and that the property in question had been bequeathed by Mst. Motal Bai in his favour by a will exe--cuted by her and registered in 1962. The said application was filed by the present respondent and ultimately on 7-9- 1975 the respondent Ram Chand took time in L. P. A. No. 3 of 1970 for obtaining probate in respect of the said will.
3. After the respondent had field this probate application the appellant Abdul Aziz filed a caveat contending that the probate should not be granted to Ram Chand as Mst. Motal Bai had only a life interest and that he was in terested in the property as he was a tenant of the property and that the property had been treated at one time as evacuee property and he had, therefore, an in--terest in the property as he would have a right to its allotment in case it was treated as evacuee property.
The District Judge rejected the caveat of the appellant on 24-5-1976 after hearing the parties on the ground that the appellant had no locus standi to file the caveat or to appear as party in probate proceedings as he has no interest in the property, which was the subject of probate. The appellant did nut challenge the said order by another proceedings and waited for the final order in probate proceedings. On 2-12-1976 the learned District Judge, Hyderabad granted the probate in favour of the respondent as he had proved the will executed by Mst. Mota Bai. The appellant filed an appeal on 11th March, 1977.
Mr. Ismail Munshi, Advocate for the appellant has raised the contention that under Hindu Law Mst.
Motal Bai had only a life interest in the property, and therefore, she had no authority to bequeath the property by any will as on the death of the widow the property reverts to the rever--sioner. The learned counsel has relied upon AIR 1959 Cal. 1308 ; I L R 6 Pat. 788 ; 1 L R 17 Born. 69) ; PLD 1971 Kar.
147 and lastly 1975 SCMR 429, which is a case decided by the Supreme Court in respect of Mst.
Motal Bai in respect of property bearing No. E-1704 where it was held that Motal Bai had only a life interest in property bearing No. E-1704 under Hindu Law, that on her death her interest in property extinguished and her cause of action did not survive in favour of her successor in interest, if any. Mr. Ismail Munshi also raised the point that the probate has been obtained in respect of will which was, on face of it invalid because she had stated in the will that she has no issue while in fact she had issues. He also submitted that the respondent had obtained probate by conceal--ing the facts that Mst. Motal Bai had two sons and one daughter in India.
It is, however, not necessary to consider these submissions in view of the fact that I am deciding the appeal on two preliminary points raised by Mr. Akhtar Mahmood (1) that the appeal is barred by Limitation, (2) the appellant has no locus standi to file this appeal. Mr. Akhtar Mahmood has shown me para. 3 of affidavit of the appellant in support of application under section 5 of Limitation Act filed along with this appeal where the appellant has stated on oath that he had been making weekly enquiries from the Court of District Judge, Hyderabad in respect of probate proceedings and that it was only on 10-2-1977 that he received the information that probate had been granted on 2-12-1976 and he received the copy of the order of probate on 14-2-1977.
5. Now the position is that under Article 156 of the Limitation Act which is admittedly applicable in respect of the present appeal a period of 90 days is prescribed for filing an appeal and the period started from date of order viz. 2-12-1976, and therefore, the appeal could be filed latest by the 1 March, 1977 or excluding the 4 days in obtaining the copies between 10-2-1974 to 14-2-1977, the appeal could be filed on 5th March, 1977. Section 3 of the Limitation Act is quite mandatory and requires dismissal of the suit and appeal if it is filed beyond the period of Limitation. In PLD 1964 SC 236 it was held by the Supreme Court that each day's delay has to be explained. In the present case before me the appellant had admittedly the copy of the probate order with him on 14-.2-1977 and if I allowed a margin of 4/5 days or even a week as time for preparation he could have filed the appeal by 21-2-1977. In any case what was important was that the appellant should have explained the delay which was occasioned from the 1st March, 1977, till 14 March, 1977 but he has failed to offer any explanation in respect of this time and even if the four days of obtaining the copy are added to this period there is no explanation at all as to why the appeal could not be filed on 5th March, 1977. And further there is no explanation of every day's delay from 5th March, 1977 to 11th March, 1977 when this appeal was actually filed and consequently there is no justification to grant the application under section 5 of the Limitation Act as the appellant has failed to give any reasonable explanation of the delay beyond 5th March, 1977 at all. Consequently the application under section 5 of the Limitation Act is dismissed and the result is that the appeal has also to be dismissed on that account.
6. Mr. Akhtar Mahmood has relied upon PLD 1977 Dacca 404 on the point that the appellant had no interest in the probate pro--ceedings.st th
7. The submission seems to be justified as the observations of the Dacca High Court are that persons who claimed the property through deceased, are the persons who will be affected by the grant of probate and they are the persons who could have the right of appearing in the pro-- ceedings. It was further held that the probate Court was merely concerned with the proof of the will. It was further observed in that judgment that the probate Court does not decide about the title in respect of the property in question and if there is any defect in the title of the deceased in respect of that property the same cannot be gone into in probate Court. The appellant in this case merely claims that he is a tenant in that property. A tenant has no interest in the property, and therefore, the present appellant could not be having any locus stand to be a party to the probate pro--ceedings.
8. Moreover, the appellant is hardly affected by the grant of probate to the respondent as the grant of probate does not improve the title of the respondent, if he has otherwise no title in the property.
Consequently, I hold that the appeal of the appellant was incompetent as he could not be regarded as a competent party to the proceedings.
9. The result of the above discussion is that the appeal was barred by limitation a$ well as incompetent, and therefore, the same is hereby dismissed. These are the reasons of the oral order passed in the Court on 24-2-1981.