MARY ASSUMPTION TRADING Vs. VINCENT MANUEL TRINIDADE

JUDGEMENT

(1.) This Judgment would dispose of two connected appeals, being F.A.OS. 58 and 59 of 1969, and C.Ms. 27 of 1971, 627 of 1971 and 608 of 1973 in the former and C.M. 644 or 1973 in the latter.

(2.) Late Alex Gajetan Trinidade, who died in Delhi of an heartattack on May 15, 1967 at the ripe age of 83, was admittedly survived by a widow, appellant No. 1 herein, two sons, appellant No. 2 and respondent No. 1 and their respective wives, appellant No. 3 and respondent No. 2 and a minor grandson, son of respondent No. 1 and 2. Respondent No. 1 is the younger of the two sons. The elder son has no issue. It is a common case of the parties that at the time of his death the testator, who was a retired Goods Supervisor of the Northern Railway, was the exclusive owner of a two and a half storeyed building situated at 2, Netaji Subhash Marg, Darya Ganj, Delhi-6, in a portion of which he resided and carried on in the ground floor dry cleaning business. A part of the building was in the occupation of tenants. It is also a common case of the parties that the business, which was originally started by the testator and was carried on by him in the name and style of (D.G.) Kay, Drycleaners and in which the two sons were working as employees, was eventually converted into a partnership by a deed of partnership of August 1, 1960 (Ex. R.I) entered into between the testator and the two sons. According to Ex. R I, the two sons had been working in the said business as employees but the testator was not finding it possible to look after the business as sole proprietor "on account of his advanced age and constant heart trouble". The deed makes provision with regard to various matters, such as. shares of the parties and their entitlement to draw a monthly allowance. It further provides that "in the event of the death of party of the first part his wife shall succeed to his interest and rights in this partnership as a full-fledged partner." It is also a common case of the partics that at the time of his death and for many years since before that the testator had been living in his house with his wife, the younger son and his wife and their child and the elder son and his wife, the appellants No. 2 and 3 herein, had been living separate from the testator. It is alleged by the younger son, respondent herein, that on May 1. 1966, about a year before his death, the testator executed a will, Ex. P. 1. According to the will the testator owned and possessed the aforesaid property in Darya Ganj; was running his drycleaning business on the ground floor and owned, inter alia, "other moveable and immovable property". The will makes no mention of the deed of partnership, Ex. R 1 or the fact of the execution of the said document or that the dry cleaning business ceased to be the testator's a sole proprietory business and became a partnership business with a definite shares of the testator and the two sons. It further makes out that both the sons were "looking after their own affairs and as such both my sons have no claim over my property". It then recounts the fact that the testator's wife had been faithful to him and mentions that "she deserves my best attention" and purports to bequeath to his wife "right" to realise the recover rent from the tenants" including D.G. Kay Dry Cleaners & Dyers and gives her the right to relet any porttion that may fall vacant and utilise the rent so recovered "for her maintenance and upkeep during her life time only". It then affirms that except the aforesaid right "she will have no other right at transfer. mortage, a gift, any portion of the said property provided always that she will have a right of residing in the building during her life time." The will then records the bequest in favour of the testator's grandson, son of his younger son, respondent No. 1 "all my property, moveable and immoveable (subject of course to my wife's right to recover and obtain rent of 4 parts of the building as stated in clause (4) and bank account together with Dry Cleaning business." It further provide? that the grandson "will also give to my wife aforsaid Rs. 300.00 per month which if not shall be a first charge on the above building. The will then makes a provision for the management of the business and the other affairs in view of the fact that the grandson was then a minor and entrusts the task to the minor's father with the proviso that "under no circumstances during the tenure of the supervision of the affairs and property will he (the son) misappropriate the property or money. In the case of withdrawal of money for any special reason, this can be done only after obtaining counter signature of Mrs. Victoria Trinidade," the wife of the younger son. The maintenance of the building is made the responsibility of the "D.G. Kay Drycleaners and Dyers". The will purports to have been executed by the testator in the presence of Shri Chet Ram Mittal, Advocate and Mr. J.D. Cruz of the Municipal Corporation of Delhi who according to the recital in the document signed the document in the presence of the testator and "at the same time" and "in presence of each other". The will contains an endorsement that its copies had been made out for the widow, the grandson and his parents. The copy of the will is not marked either to the elder son, who had been disinherited, or to his wife.

(3.) By a petition under Section 276 of the Indian Succession Act, the younger son, respondent No. 1, sought from the District JudgeLetters of Administration, with the will annexed, to the estate of the deceased. Annexure 'B' to the petition mentions the aforesaid immoveable property situated in Darya Ganj, the share of the testator in the dry cleaning business and certain bank accounts. It does not mention any other immoveable property. After the usual notices to the relations including the appellants and the citation, the grant was opposed by widow and elder son of the testator and the latter's wifeappellants herein on the ground that the testator left no "valid will" and that the testator had not bequeathed any part of his property in favour of the minor grandson. On the pleadings of the parties, the learned District Judge framed the following issues :