TAJO RAM NATH AND ANR. Vs. BANESWAR NATH

JUDGEMENT

(1.) THIS appeal arises out of a suit for Letters of Administration with a copy of a will annexed. The facts of the case are briefly as follows: The Plaintiff -Respondent alleged that late Kashiram Nath who was a resident of village Haldha in the district of Kamrup left a will (which is marked exhibit 1) bequeathing his properties to the Plaintiff. Hence he applied for the grant or Letters of Administration with a copy of the will annexed in the Court of the District Delegate. The Defendants who claimed that they were the nephews of late Kashiram Nath filed objection and as the matter thus became contentious, the petition was refiled in the Court of the District judge, Lower Assam Districts and it was registered as a suit, and the Objector, were arrayed as Defendants. The said Defendants filed written statements denying that late Kashiram Nath executed any will in favour of the Plaintiff. It was further contended that in 1953 late. Kashiram Nath executed a registered will by which he bequeathed his properties in favour of one Mahendra Nath. But subsequently, after about two years, this registered will was revoked by the testator. Even if any will in favour of the Plaintiff was executed previously, it stood revoked by the subsequent will and as such the Plaintiff was not entitled to any Letters of Administration.

(2.) THE will (exhibit 1) which was sought to be propounded by the Plaintiff was alleged to have been executed by the testator on 14 -2 -48 and the testator died on 21 -1 -58. According to the Plaintiff this was the last will and testament left by late Kashiram Nath. The Defendants, on the other hand, contended that late Kashiram executed a registered will in favour of one Mahendra on 12 -5 -53 and that this will was revoked by a registered deed on 21 -6 -55. It was further contended that the original will in favour of Mahendra was torn off by the testator when he executed the deed of revocation and hence a certified copy of the said will was filed and marked exhibit A. The deed of revocation was marked exhibit B. The learned Additional District Judge, Lower Assam Districts held that exhibit 1 was the genuine and last will of late Kashiram Nath and he accordingly granted Letters of Administration with a copy of the will annexed. The present appeal is against this order of the learned Additional District judge. Mr. Choudhury, appearing on behalf of the Defendant -Appellants, puts forward two arguments. Firstly he submits that the document exhibit 1 which is purported to be the will of late Kashiram Nath cannot be treated as a will. "Will'" has been defined in Section 2(h) of the Indian Succession Act to mean legal declaration of the intention of a testator with respect to his property which he desires to be carried into effect after his death. From the above statutory definition it is clear that in order to constitute a will there must be a desire of the testator that the declaration, should he effectuated after his death. Mr. Choudhury submits that by the document (exhibit 1) Kashiram Nath settled the properties during his life time and not posthumously. We however do not think that Mr. Choudhury is correct in this respect. A reading of the document (exhibit 1) Will show that it forms two parts. The document is in Assamese and the following is its English translation:

(3.) IT will appear that by the first part of the above document, the property was put in possession and under the management of the Plaintiff during the life time of the deceased. In the second part it was directed that the Plaintiff would get the properties as an owner on the death of the testator. We do not think that there can be any objection in law if one part of an instrument is operative as will and Anr. part of the same instrument operates as a document giving possession and management. The desire of the testator to give up the ownership of the property to the Plaintiff -Respondent only on his (testator's) death is quite clear and in such circumstances, exhibit 1 falls within the statutory definition of a will.