PRADEEP KANTILAL SHROFF Vs. KHORSHED KERSAP AGA

JUDGEMENT

(1.) SHRI Hansraj Jeewandas Thacker (hereinafter referred to as the deceased) died at Bombay on or about 5th day of December 1981. Shri Pradeep Kantilal Shroff has filed Petition No. 766 of 1984 for issue of letters of administration alongwith Will annexed of the deceased being the document Exhibit A to the petition. The document Exhibit A to the petition is the document in dispute. One Nirupa Manilal Thacker has filed a Caveat opposing the grant sought for by the petitioner on various grounds. The following preliminary Issue is required to be considered and decided by the Courts : Preliminary Issue : Whether the document Exhibit A to the petition is a Will?

(2.) IT is necessary to consider as to whether the document Exhibit A to the petition is liable to be considered as Will within the meaning of section 2 (h) of the Indian Succession Act, 1925. If the Court comes to the conclusion that the impugned document on its construction does not amount to Will within the meaning of section 2 (h) of the said Act, the petition would fail on this ground alone. For the purpose of examining the abovereferred contention, it shall have to be considered as to whether the language of the relevant part of the document is plain or whether the same is ambiguous so as to provide scope for leading oral evidence as desired by the petitioner. If the language of the document Exhibit A to the petition is unambiguous on fact of it, the parties are not entitled to lead oral evidence in an attempt to vary the plain meaning of the language used in the relevant part of the document.

(3.) SECTION 2 (h) of the Indian Succession Act, 1925 defines the expression Will as under: `will means 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. " (The underlining is done to supply emphasis ). It is well settled that the essential characteristics of a Will are that the disposition must operate after the death of the testator and it should be revocable during the life of the testator. A document which is plainly intended to operate immediately on its execution can never be construed as a Will. Such a document providing for disposition of assets in praesenti must necessarily operate as a non-testamentary document.