S VENKATARAMA IYER Vs. SUNDARAMBAL

JUDGEMENT

(1.) THE petitioner, S. Venkatarama Iyer, is the duly constituted attorney of v. Venkatarsima Iyer who claims to be the executor by implication of a testamentary writing in the nature of a will which was executed at Madras in or about September, 1932, by one K. Raja Gopalan in respect of the amount lying to his credit with " THE Officers & Staff Provident Fund of the Indian and Malayan Offices of C. C. Wakefield & Co., Ltd." THE deceased K. Raja Gopalan was until his death an employee in the service of C. C. Wakefield & Co., Ltd., and the amount standing to his credit at his death was Rs. 5,952-15-6 according to the letter of the Manager of C. C. Wakefield,& Co., Ltd., dated June 8, 1938, and addressed to v. Venkatarama Iyer. THE petitioner prays that letters of administration with the said will annexed limited to the amount standing to the credit of the deceased in the said fund be granted to him having effect throughout the Province of Bombay and for the use and benefit of v. Venkatarama Iyer limited until he shall obtain probate of the will of the deceased from this Court.

(2.) THE petition is made under the terms of Section 241 of the Indian Succession Act by which it is provided that when any executor is absent from; the Province in which application is made, and there is no executor within the Province willing to act, letters of administration, with the will annexed, may be granted to the attorney or agent of the absent executor, for the use and benefit of his principal limited until he shall obtain probate or letters of administration granted to himself. Under this Section letters of administration can be granted to an attorney or agent of the executor only when the executor is absent from the Province. It is necessary, however, that the attorney applying for letters of administration should be within the jurisdiction of the Court. Section 242 has no application to this case. It provides that when any person to whom, if present, letters of administration, with the will annexed, might be granted, is absent from the Province, letters of administration, with the will annexed, may be granted to his attorney or agent, limited as mentioned in Section 241. That Section applies when any person who is entitled to administration in case of intestacy, or a universal or residuary legatee, or the representative of a residuary legatee, or a legatee with beneficial interest, or a creditor of the deceased is absent. In the absence of any one of these letters of administration with the will annexed may be granted to his attorney or agent limited as mentioned in Section 241. It is also provided by Rule 628 of the High Court Rules that an application for letters of administration with the will annexed inter alia may be made by a constituted attorney of a person residing out of the Province, provided that such constituted attorney resides within the Province and that such application is made through an attorney of this Court. It is in evidence before me that the executor mentioned in the writing, v. Venkatarama Iyer, is residing outside the Province of Bombay, and that his constituted attorney, the petitioner, is in Bombay, and it is the constituted attorney who has made this application under Section 241. So long as any grant made under the Section is subsisting, the administrator under this Section is the legal representative of the deceased and has all the powers of an ordinary administrator.

(3.) SEVERAL issues were raised on behalf of the defendant. The first issue is whether this writing is the last will and testament of the deceased K. Raja Gopalan. A will is denned in Section 2(h) of the Indian Succession Act as the legal declaration of the intention of a testator with respect to his property which he desires to be carried into effect after his death. It has been held that no technical words are necessary for a will and that the form of a wilt is immaterial. It is enough if the document embodies the legal declaration of the intention of the testator with respect to his property or any portion of his property which he desires to be carried into effect after his death. The question, therefore, is whether the writing containing the declaration, exhibit B, is a legal declaration of the intention of the deceased K. Raja Gopalan with respect to the amount standing to his credit with the Fund which he desired to be carried into effect after his death. The mere use of the word ' will' in the declaration cannot make it a will if it does not amount to a testamentary disposition, just as the absence of the word cannot make it any the less a will if there is a testamentary disposition of property. What is necessary is that the will must make a disposition of the testator's property and the declaration regarding the disposition must be in accordance with the provisions of the law. An unprivileged will can only be made in accordance with the provisions of Section 63 of the Indian Succession Act. One of the essential characteristics of a will is that it must be revocable during the lifetime of the testator, for its irrevocability would be inconsistent with its being a will. It was conceded in argument by the defendant's counsel that this declaration was not irrevocable, and that it was open to the deceased to have changed his mind and made another declaration on another form if he so desired with the consent of the company. There is no doubt that this disposition of the amount standing to his credit was to take effect after his death, for the declaration says so in so many words. The writing has been signed by the deceased and the signature of the deceased has been attested by S. Venkatarama Iyer, one of the two attesting witnesses whose signatures appear on the writing. S. Venkatarama Iyer was called, and he deposed to the writing having been signed by the deceased in his presence and in the presence of the second attesting witness who has also put his signature as an attesting witness, though it cannot be clearly deciphered. S. Venkatarama Iyer was, however, sure that it was signed by the second attesting witness, that the deceased signed in the presence of them both, and that both of them attested the signature of the deceased in the presence of each other. It is enough under Section 68 of the Indian Evidence Act if one of the attesting witnesses is called to prove a document which requires in law to be attested by two or more witnesses, and I am satisfied on the evidence given by S. Venkatarama Iyer that the writing was duly signed and executed and attested by the deceased in or about September, 1932. Moreover, it has been held in Nona Tawker v. Bhavcmi Boyee (1920) I.L.R. 43 Mad. 728 that if a person depositing money with a fund rilled in a form provided by the fund, and intended another person as the person entitled to receive the money after his death, the form amounted to a will if made in the town of Madras, provided it was duly executed and attested as a will and probate obtained. Such a writing contained in the form is held to be in the nature of a testamentary instrument and must be proved to have been duly executed. This case was followed in Ma Nu v. Ma Gun (1924) I.L.R. 2 Ran. 388 in which it was held that the testamentary disposition was invalid as the subscriber was a Burman Buddhist, but that otherwise a testamentary disposition of that nature would be valid if duly signed and attested by two witnesses. I am satisfied that this writing was a will made by the deceased in 1932 and was properly executed and attested as his last will.