Shah, J.
(1) This appeal is directed against the grant of Letters of Administration of the estate 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.
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.
(2) Original applicant's (respondent's) case is that Bai Mangu was his widowed mother-in-law, being the mother of his wife Kanta, to who he was married some time in the year 1934. Mangu's husband Ambalal, who was the uncle of original opponents who are the appellants herein, had died some time in the 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 household 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 the 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.
(3) The original applicant's 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 applicant's 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.
(4) 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 and developed upon them as the heirs of Mangu's husband. It was further contended that Mangu had no valid authority to make a will in respect of the properties mentioned in the will.
(5) At the hearing, both the parties adduced oral evidence o 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 of 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 execution of the will. The learned Judge also reached the conclusion that Bai Kanta had not died prior to Bai Mangu and held that the original applicant was entitled to maintain the application. In the view that he took, the learned trial Judge has ordered the issuance of the Letters of Administration as prayed for. It is against this grant that the original opponents have filed this appeal, which has now come up for hearing before us.
(6) Mr. Patel, learned advocate appearing for the appellants, has, in main, contended that the testatrix was not in a sound and disposing state of mind and that the will was not proved. He further contended that the original applicant was not entitled to the grant of Letters of Administration as Kanta had predeceased Mangu and the legacy had lapsed and, therefore, there was an intestacy. He lastly contended that the application was not maintainable as probate of the will of Mangu was not obtained.
(7) Now it appears from the certified copy of the will Exh. 4/1 which is produced on the record the testatrix Mangu had executed the will so far back as on February 18, 1941 and this will has been registered in the office of the Sub-Registrar at Visnagar on the same day and the testatrix has made an acknowledgment before the Sub-Registrar of her having duly executed the will. The genuineness of the will cannot, therefore, be disputed. It is not the case of the opponents that the will was revoked by the testatrix during her lifetime . it further appears as evidenced by the applicant (respondent) that Mangu had kept the original will in her house after getting it registered. The applicant's evidence is that it was destroyed in fire or was destroyed or supperssed by the opponents with a notice to produce the original will but the latter have not produced it saying that they have not found any such will from the house of deceased Mangu since in their possession. It cannot, therefore, be disputed and is not disputed before us that the original will has been lost or mislaid since the testatrix Mangu's death. It further appears that at the time of the making of the will and also at the time of her death, Mangu was possessed of the property left by her deceased husband Ambalal and her deceased son Janakrai and that Kanta was her only child surviving and she lived with her. It is not the opponent's case that Ambalal was not separate from the opponents' father at the time of his death. Applicant Chhandalal is shown to have been residing in Kalol and doing some service in some Mill at Kalol for the last about 25 years. The further fact that emerges from the evidence on record is that the respondents who has propounded the will has taken no part whatsoever in the execution of the will. It is clear that the will has been made in favour of Kanta out of natural love and affection which Mangu had towards her only child who was living with her at the relevant time. It is common ground that a fire had broken out in the house of Mangu on the evening of January 28, 1958 and that both Mangu and Kanta were burnt alive in the fire. The possession of the partially burnt house was admittedly handed over by the P. S.I., Visnagar, to the opponents. These are the material facts which clearly emerge from the relevant evidence in the light of which we will now proceed to examine the aforesaid contention of Mr. Patel.
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(15) From the aforesaid resume of the evidence, it appears that a fire had broken out in the house of Mangu on the relevant evening and the pleader Gopalbhai and his client Daud were the first persons to go to the burning house and Daud had forced open the 'jalis' and taken out Kanta from the house. Some other persons had then taken out Mangu from the house. The evidence also establishes the material fact that both Kanta and Mangu had perished in the fire. That evidence of opponents' witness Javanji which is in conflict with the evidence of Gopalbhai is that he himself had forced open the 'jalis' and brought out Kanta from the house, but Javanji's evidence appears to be that of a chance witness and does not inspire an confidence and the learned trial Judge was right in disbelieving his evidence. Having regard to the nature and character of the evidence of Gopahbhai which is natural and reliable, we cannot prefer the evidence of Javanji Nagarji to that of witness Gopalbhai and Daud does not clearly establish the fact that Mangu had predeceased Kanta and that Kanta had survived Mangu. It appears from the observations made by the learnt trial Judge in his judgment that the learned advocates of both the parties appearing before the trial Court had conceded that the evidence on the question of which of the two survived the other was not reliable and the learned Judge had, therefore, reached a conclusion that both of them - Mangu and Kanta - must have perished together in the mishap. Apart from the concession so made, the state of evidence on the record is not of a positive character and as aforesaid, both Kanta and Mangu have died in circumstances rendering it uncertain whether either of them, and if so, which survived the other.
(16) Relying upon the aforesaid uncertainty of evidence, Mr. Patel has contended that the burden of proof of the fact that the legatee has survived the testatrix which lies upon the original applicant who claims as the representative of the legatee has not been satisfactorily discharge and, therefore, in absence of evidence to show which of the two died first, the legacy lapses and there is an intestacy. In support of his submission, Mr. Patel has put wrong reliance on the provisions of Section 105 of the Indian Succession Act, which reads as under:--
'105. (1) If the legatee does not survive the testator, the legacy cannot take effect, but shall lapse and form part of the residue of the testator's property, unless it appears by the will that the testator intended that it should go to some other person.
(2) In order to entitle the representative of the legatee to receive the legacy, it must be proved that he survived the testator.'
(17) Thus, Section 105 of the Indian Succession Act in terms lays down that if the legatee is not proved to have survived the testatrix, the legacy lapses and cannot take effect; the onus probandi lying on the party who asserts the affirmative. Now, Section 105 of the Act incorporates the common law rule that the representatives of the donee who claim under the will must prove that in fact the donee survived the testator; otherwise, the claim fails. As aforesaid, there is no certain evidence to show whether any of the two deceased persons - testatrix or the legatee - had survived the other. The evidence only establishes that both of them perished in a common calamity, namely, the fire. There is some evidence that legatee Kanta had survived the testatrix; but that evidence again is not certain. The virtual impossibility of two human beings ordinarily ceasing to breathe at exactly the some moment of time has also to be borne in mind. There is an element of uncertainty on the cardinal issue; which of the two survived the other. This is thus a case of commorientes, that is to say, of persons who perish at the same time in consequence of the same calamity. The common law rule incorporated in sub-section (2) of Section 105 of the Indian Succession Act throws the onus probandi on the representatives of the legatee, which is difficult, if not possible, to be discharged in cases of commorientes. It is to remedy this imperfection of the law that the Legislature seems to have come to the aid of the Courts by enacting a statutory presumption in Section 21 of the Hindu Succession Act, 1956 (Act No. 30 of 1956), which will hereafter be referred to as 'the Act'. Section 21 of the Act reads as under:--
'21. Presumption in cases of simultaneous deaths. - Where two persons have died in circumstances rendering it uncertain whether either of them, and if so, which, survived the other, then, for all purposes affecting succession to property, it shall be presumed, until the contrary is proved, that the younger survived the elder.'
(18) Section 21 of the Act incorporates the rule now enacted in Section 184 of the English Law of Property Act, 1925, which reads as under:--
'In all cases where, after the commencement of this Act, two or more persons have died in circumstances rendering it uncertain which of them survived the other or others, such deaths shall (subject to any order of the Court), for all purposes affecting the title to property, be presumed to have occurred in order of seniority, and accordingly the younger shall be deemed to have survived the elder'.
Section 21 of the Act and Section 184 of the Law of Property Act, 1925, being in pari materia, we will proceed to consider the relevant English decisions, wherein a similar question had arisen. In Hickman v. Peacey, (1945) AC 304, where four persons had been killed by the explosion of a bomb which had destroyed an air-laid shelter in which the persons concerned had taken the refuge and where there was no evidence to show whether any of the deceased had survived the others, it was contended that the common law rule that the representatives of the donee who claim under the will must prove that in fact the donee survived the testator, still prevails if the deaths were simultaneous. This argument was rejected by a bare majority of the House of Lords and the simple rule laid down that unless it was possible to say for certain which of the persons died first, the younger is presumed to have survived. It was held per Lord Macmillan, Lord Porter and Lord Simonds, Viscount Simon L.C. and Lord Wright dissenting that 'in the absence of such evidence, they had died in circumstances rendering it uncertain which of them survived the other or others within the meaning of S. 184 of the Law of Property Act, 1925, and that accordingly, in the administration of their estates by the executors of the respective will, the younger of the deceased should be deemed to have survived the other'. The statutory presumption provided for by Section 184 of the Law of Property Act is 'subject to any order of the Court' and the Courts in England have taken the view that the presumption is to prevail until there is evidence to remove the presumption. In re Bate; Chilling worth v. Bate, (1947) 2 All ER 418, Jenkins J. dealing with the case of the death of testator Bate and his wife Jane Bate, both of whom were found dead in their kitchen as a result of carbon monoxide poisoning has affirmed the dictum in 1945 AC 304, observed that if the circumstances left it uncertain, which of them survived the other, the presumption enacted by section 184 must prevail and for all purposes affecting title to their respective property, their deaths must be presumed to have occurred in the order of seniority. Refereeing to degree of evidence needed to remove the presumption, the learned Judge has observed that '..... it is necessary that there shall be evidence leading to a defined and warranted conclusion that one died before the other'. To all intents and purposes, Section 21 of the Act is a provision similar to Section 184 of the English Act and instead, the use of the words 'until the contrary is proved'. This makes it abundantly clear that when a statutory presumption is raised, it is for the party disputing it to prove by defined and warranted conclusion the contrary - that the elder survived the younger - and rebut the presumption. Section 21 of the Act thus acts as a proviso to sub-section (2) of Section 105 of the Indian Succession Act, 1925 in cases governed by the Hindu Succession Act, 1956.
(19) In India, prior to the enactment of the Hindu Succession Act, 1956 (the Act), there was no presumption of law arising from age as to survivorship among persons who perished in the same calamity. There was no presumption that the younger survived the elder. Such a question was always form first to last a pure question of fact, the onus probandi lying on the party who asserts the affirmative as observed by the Privy Council in Agha Mir Ahmad Shah v. Mudassir Shah following the English decision in Wing v. Angrave. In this case, the Privy Council, dealing with the case of a Mahomedan husband and his young wife, both of whom had lost their lives in the 1935 Quetta earthquake, had repelled the contention that the survivorship of the younger should be considered as an element in evidence and observed that ' . . . it is obvious that in a disaster like an earthquake, it is a matter of pure change whether the younger or the elder would be killed first. It may well be that the younger might receive injuries which cause instantaneous death, while the elder might merely be druid under the debris and eventually die of suffocation.' It is noteworthy that the Privy Council further observed that the aforesaid rule in Wing v. Angrave, (1860-8 HLC 183) was not modified in India by any statute as has been done in England by Section 184, English Law of Property Act, 1925. A similar view was taken in the earlier Calcutta, Oudh and Sind decisions reported respectively in : AIR1944Cal132 and AIR 1939 Sind 234. However, in view of the change brought about by Section 21 of the Act, the aforesaid Privy Council decision, as also the Calcutta, Oudh and Sind decisions no longer lay down the correct law in cases of person governed by the Act. We may say that in an earlier Bombay decision in Yeknath v. Laxmibai, 24 Bom LR 836 = (AIR 1922 Bom 347), Macleod, C. J. and Shah, J., while dealing with the question of the power of a Hindu widow inheriting as gotraja sapinda to adopt had occasion to consider a similar question as to which of the two persons, both of whom had died in an epidemic of plague on the same day and had been cremated on the same day, had died first. In absence of certain evidence as to which of the two died first, Macleod, C. J., speaking for the Court observed that some importance must be given to the fact that one of the two was considerably the younger man and, therefore, 'when the evidence on the question who died first is so evenly balanced, I think we are entitled to say that the probabilities are in favour of the younger man surviving the elder'. Thus, the Bombay view warranted a presumption, in such cases of uncertainty, that the younger survived the elder. The matter is now set at rest by enacting a rule similar to Section 184 of the English Law of Property Act, 1956 in Section 21 which provides for the raising of a statutory presumption in such cases of uncertainty and, therefore, the English decisions in 1945 AC 304 and 1947-2 All ER 418 will now be relevant and will hold good. In our judgment, Section 21 of the Act is a progressive rule of evidence and introduces a rebuttable presumption in cases where two persons have died in circumstances rendering it uncertain whether either of them and if so which, survived the other. The language of Section 21 and the object and the scope of the Act are not open to doubt. A similar view has been taken by Tekchand J. of the Punjab High Court In re Mahabir Singh, AIR 1963 Punj 66, where the learned Judge, while considering the scope of Section 21 of the Act, has observed that 'under Section 21 of the Hindu Succession Act, 1956, the presumption is, until the contrary is proved, that the younger survived the elder. The provision lays down a rule of evidence and introduces statutory presumption of a rebuttable character in cases of simultaneous deaths.'
(20) We may sat that Mr.Patel had, while dealing with the scope and effect of Section 105 of the Indian Succession Act, referred us to Illustration (vi) to Section 105 to reinforce his aforesaid contention that in absence of proof by the representative that the legatee had survived the testatrix, the legacy lapses. The Illustration is consistent with the main enactment, namely, Section 105 of the Indian Succession Act and reads as under:-
'(vi) The testator and the legatee perished in the same shipwreck. There is no evidence to show which died first. The legacy lapses.' Now, this Illustration to Section 105, though given in the Indian Succession Act, is a rule of evidence. It is based upon the legislative assumption which no longer survives in view of the provisions of section 21 of the Hindu Succession Act which introduces a progressive rule of evidence and lays down a rule of artificial assumption. The illustration deals with the cases of commonrientes and in view of our opinion aforesaid that Section 21 of the Hindu Succession Act, 1956, applies to such cases where there is an element of uncertainty on the cardinal issue, namely, which of the two survived the other, the Illustration has no relevance and value and must give to way to Section 21 of the Act.
(21) Mr. Patel then contended that having regard to the scheme of the Hindu Succession Act. 1956, and especially having regard to the fact that section 21 finds its place in Chapter II of the Act which deals with Intestate succession. Section 21 can be invoked only in cases of intestate succession, Section 21 can have no play in the case before us. It is true that the preamble of the Act speaks of the Act being enacted to amend and codify the law relating to intestate succession among Hindus. But, the Act also deals with testate succession. Chapter III of the Act deals with testamentary succession. Section 30 of the Act which finds its places in Chapter III provides that any Hindu may dispose of by will or other testamentary disposition any property which is capable of being so disposed of by him in accordance with law. The explanation provides, inter alia, that the interest of a male Hindu in a Mitakshara Coparcenary property shall be deemed to be property capable of being disposed of by a will. Section 30 thus recognises testamentary disposition where none existed before. Section 6 of the Act deals with devolution of interest in Coparcenary property and its proviso deals with the devolution of the interest of the deceased in the Mitakshara Coparcenary property by testamentary of intestate succession as the case may be in the event of the deceased being survived by a female relative specified in Class I of the Schedule or a male relative specified in that class who claims through such a female relative. Section 7(1) of the Act which deals with devolution of interest in the property of a toward etc., also provides for devolution of such interest by testamentary or intestate succession. Sections 6 and 7 find their place in Chapter II which in main deals with intestate succession and falls under that caption. Moreover, Section 21, although it finds its place under Chapter II, falls under the caption 'General Provision relating to Succession' and provides for raising a presumption 'for all purposes affecting succession', and this would include testamentary succession. Thus, having regard to the scheme of the Act and the aforesaid relevant provisions, the object and scope of the Act are not open to doubt and in our judgment, Section 21 will apply to cases of succession, both testamentary and intestate and the preamble cannot restrict its operation. Section 21 will, therefore, come into operation in the instant case and Mr. Patel's contention must, therefore, be rejected.
(22) Now, it is not disputed that the parties are governed by the Act and that legatee Kanta was younger than the testatrix Mangu who was Kanta's mother. As aforesaid, there is an element of uncertainty on the cardinal issues; which of the two survived the other. The statutory presumption provided for in Section 21 of the Act will, therefore, be clearly attracted in the instant case and the presumption takes the place of proof until the contrary is proved. This statutory presumption can only be rebutted by evidence beyond doubt that each died precisely at the same moment of time or that the elder in fact survived the younger. As aforesaid, there is no evidence leading to a defined and warranted conclusion to exclude the presumption in favour of the survival of the younger (legatee). Thus, legatee Kanta is proved to have survived the testatrix and sub-section (1) of Section 105 of the Indian Succession Act does not come into operation in the case and the lapse does not occur. The learned trial Judge was, therefore, right in finding that Kanta was entitled to the estate of deceased testatrix Mangu as a legatee under the Will, of which Ex. 4/1 is a certified copy. The property of Mangu had thus devolved upon Kanta.
(23) Now, it is not disputed that Kanta has died intestate and without leaving any issue. The property would, therefore, devolve on her husband, the present respondent, as laid down in Section 15(1)(a) of the Hindu Succession Act, 1956, Mr. Patel has, however, disputed this proposition and contended that Kanta's property had devolved upon the appellants who were the heirs of Kanta's father. Mr. Patel's submission was that Kanta had inherited the property from her mother Mangu and she herself having died intestate and without any issue, her property would devolve upon the appellants as provided for by Clause (a) of sub-section (2) of Section 15 of the Hindu Succession Act, 1956. This argument is, however, based on a false premise and an assumption that the property in question was the one inherited by kanta. It is clear that Clause (a) deals with devolution of 'any property inherited by a female Hindu from her father or mother' and provides that 'in the absence of any son or daughter of the deceased', the property shall devolve not upon the other heirs referred to in sub-section (1) in the order specified therein, but 'upon the heirs of the father'. The instant case is clearly a case of a devise and not of an inheritance. Kanta's property is indisputably the one which had devolved on her by a 'devise' or a 'bequest' under the will of her mother Mangu. The words 'devise' and 'inheritance' are distinct expressions as is apparent from the use of the two distinct words in the explanation to sub-section (1) of Section 14 of the Act. Clause (a) of sub-section (2) of Section 15 clearly relates to inheritance and as such, can have no application in the case of a devise as is the case before us. We cannot, therefore, accept Mr. Patel's contention that the respondent-husband is not the heir to the property of Kanta.
(24) Mr. Patel lastly contended that Section 213(1) of the Indian Succession Act, 1925 creates a bar to the grant of Letters of Administration unless probate of the will is obtained. Mr. Patel's submission was that as the requisite probate of the will of Mangu was not obtained by the petitioner, he was not entitled to the grant of Letters of Administration as prayed for. This contention has no merit Sub-section (2) of Section 213 provides that Section 213 shall only apply in the case of such wills as are of the classes specified in Clauses (a) and (b) of Section 57 of the Act. Now, it is into contended before us nor does it appear on the record that the will in question is the one that falls in either of the two Clauses (a) or (b) of Section 57. It appears that it was precisely for this reason that such a contention was not raised in the trial Court. In the case before us, what the applicant seeks is the grant of letters of administration to the property of his wife Kanta, who has died intestate and leaving no issue; the property of Kanta being that which was left to her as a devise by the will of her mother, a certified copy of which is produced at Exh. 4/1. Clearly, therefore, Section 213(1) cannot operate as a bar to the grant as prayed for. Mr. Patel's contention must, therefore, fail and is rejected.
(25) The aforesaid were the only contentions raised by Mr. Patel and they cannot be sustained for the reasons stated.
(26) As aforesaid, we have found that testatrix Mangu was in a sound and disposing state of mind at the time of the execution of the will, which was her last will and testament, proved to have been validly executed and attested in accordance with law. We have also found relying on the statutory presumption that Kanta had survived testatrix Mangu and therefore, the legacy did not lapse. The respondent-husband is the heir to the property of deceased Kanta which had devolved upon her by the will of testatrix Mangu. The learned Assistant Judge was, therefore, right in ordering the grant of the Letters of Administration to the respondent. In the result, the appeal fails and is dismissed with costs.
(26) Appeal dismissed.