SURENDRA NATH CHATTERJEE Vs. SIVADAS MOOKERJEE

JUDGEMENT

(1.) This appeal is directed against an order of dismissal made on an application for Probate of a Will and codicil alleged to have been executed on the 24 June 1916, by Rai Bahadur Krishnamohan Mookerjee, formerly a member of the Provincil Judicial Service. Mookerjee executed a Will on the 24 November 1914. On the 24 June 1916 he executed a second Will which stated explicitly that all previous Wills, if any, were thereby cancelled. On the same date he executed another document described as a codicil. On the 14 April 1918 he executed two deeds of gift, one in favour of his five daughters Saraswati, Lilabati, Satyabati, Kamala and Dargamani, the other in favour of Probodh Chandra Chatterjee, the only son of his daughter Kamala. The former of these two deeds of gift refers to the Will End codicil executed on the 24 June 1916 and cancels " the said Will-" On the date of execution of the deeds of gift, the second Will is alleged to have been partially torn and thrown away, Mookerjee died on the 1 June 1918, On the 31 May 1919, Surendra Nath Chatterjee, his grandson by his daughter Saraswati, instituted the present proceedings for Probat of the Will and codicil executed on the 24 June 1916, which, he alleged, were in the custody of the sons of the testator, Sivadas Mookerjee and Kedarnath Mookerjee. The application was opposed by the sons who denied that the alleged Will and codicil had been duly executed or were in existence at the time of the death of the testator, The contents of the Will and codicil have, however, been satisfactorily proved by means of secondary evidence, namely, by copies which are undoubtedly genuine, But the Court below has refused Probate on the ground that the Will and codicil were revoked by the deed of gift in favour of the daughters and also by reason of what the testator did with the documents after ho had executed the deed of gift.

(2.) We are not concerned with the contents of the first Will executed on the 24 November 1914, which was unquestionably revoked by the second Will executed on the 24 June 1916 and could not be revived by the revocation of the revoking Will. Reference may in this connection be made to Section 60 of the Indian Succession Act which provides that no unprivileged Will or codicil nor any part thereof, which shall be in any manner revoked, shall be revived otherwise than by the re-execution thereof or by a codicil executed in the required manner and showing an intention to revive the same. This accords with the opinion expressed by the Judicial Committee in Quito V/s. Gilbert (1854) 9 Moo. P.C. 131 at p. 143 : 14 E.R. 247 : 105 R.R. 31 see also Brown, In the goods of (1858) 1 Sw. & Tr. 32 : 27 L.J.P. 20 : 4 Jur. (N.S.) 244 : 164 E.R. 615; Brown V/s. Brown (1858) 8 El. & Bl 876 : 27 L.J.Q.B. 173 : 4 Jur. (N.S.) 163 : 120 E.R. 327 : 112 E.R. 813; Dickinson V/s. Swatman (1860) 4 Sw. & Tr. 205 : 30 L.J.P. 84 : 6 Jur. (N.S.) 831 : 164 E.R. 1495; Hodgkinson, In the goods of (1893) P. 339 : 62 L. J.P. 116 : 69 L.T. 540. We need consequently examine the provisions only of the second Will and the codicil.

(3.) It is plain from the dispositions made by the testator in his second Will that the chief objects he had in view fell into three categories, namely, first, provision for his daughters, Borne of whom had became widows; secondly, arrangement for the preservation and continuance of the worship of the family deities; and, thirdly, peaceful enjoyment of the family estate by his two sons. As regards the song, his hope as expressed in the Will was that they should live jointly in amity and commensality. But, he was evidently not satisfied with the direction given in this behalf in the Will and proceeded in the codicil to make alternative provisions. The provisions so made were four-fold; first, that the ancestral house and lands shall be deemed dedicated for the worship of the family deities; secondly, that two of his houses and some lands in the suburbs of Calcutta should be taken by his two sons according to the distribution directed; thirdly, that his other landed properties should be taken by the two song in the manner specified and, fourthly, that another house should be taken jointly and three plots of land in his native village should be partitioned. It is thus obvious that the provisions in the Will were, as explicitly stated, alternatives to the provisions in the Will, except as regards the disposition in favour of the daughters which remained unaffected. The dead of gift executed in favour of the daughters on the 14 April 1918 was plainly intended to supersede at least those provisions of the Will which contained dispositions in their favour; but it was clearly designed to go much further. The deed contains the following; statement: "Prior to this, I executed a Will and codicil on the 24 June 1916, and made a different provisions for you. But in apprehension that disputes may arise therefrom, I cancel the said Will and execute and sign the present deed of gift and deliver to you the possession of the said property." There has been much discussion at the Bar as to the true construction of this clause. The appellant has contended that the testator intended to cancel the Will alone, leaving the codicil untouched; the respondents have argued that not the Will alone bat the codicil also was therewith intended to be revoked. We are of opinion that there is no roam for doubt as to the true interpretation of the clause. The intention of the executant of the deed mast be judged from the plain language used. Ha was himself a lawyer and fully appreciated the distinction between a Will and a codicil, indeed, he expressly refers to both the Will and the codicil in the earlier part of the passage, yet in the subsequent portion he cancels only "the said Will" and not "the Will and the codicil." It would be contrary to established principles of construction if we ware to bold that the term Will," when used for the second time, signifies what is described immediately before by the phrase " Will and codicil. We hold accordingly that this clause in the deed of gift operated to revoke the Will but not the codicil.