GAYESHWAR PRASAD Vs. MUSAMMAT BHAGWATI KUER

JUDGEMENT

(1.) Naubat Lal a mukhtear of Gaya, after his son and daughter had both died young, found himself approaching old age without any children. He and his wife took into their family Bhagwati Kuer, a daughter of the wife's brother whom they brought up as their own daughter. Naubat Lal married the girl to a man named Bit Lal who lived with him until he died in 1910 and in their old age there was living. with them the widow whim they treated as a daughter and her daughter whom they treated as a grand-daughter. It is said that shortly after the death of Bit Lal in 1910, Naubat Lal executed a will where by he left his estate to his widow for life, with remainder to Musammat Bhagwati Kuer, whom he had practically speaking adopted, and her daughter Musammat Prem Kuer. Naubat Lal's widow did not obtain probate of the will, but entered into possession of the estate in the ordinary course. After her death, when the property was claimed by the sons of Naubat Lal's sister as reversioners the first attempt was made to prove the will. On November 30, 1929, Bhagwati Kuer applied for probate. The suit was contested by the sister's sons who denied that the will had been executed at all taking the alternative pleading that Naubat Lal was not of sound mind, and that the will had been executed, if executed at all, under the undue influence of Kali Charan the brother of Naubat Lal's wife. The District Judge of Gaya awarded to Musammat Bhagwati Kuer letters of administration with the will annexed finding that it had been duly executed, and finding that Naubat Lal was of sound disposing mind at the time and that there was no undue influence; the sister's sons appeal from that decision.

(2.) The will purports to have been executed on July 9, 1910. On May 31, 1914 the District Sub-Registrar of Gaya attended at the house of Naubat Lal, who by that time had become blind and intirm, and registered it. Mr. Khurshed Hussain on behalf of the appellants suggests that the will was not really executed in 1910 and that the will which was registered in 1914 was not the will of Naubat Lal, who was not at that time in a fit state to execute such an instrument. The first point which is naturally taken on behalf of the appellants is that the will is open to suspicion, owing to the long delay which elapsed before any attempt was made 10 prove it in Court. Mr. Baldeo Sahay on behalf of the respondent points out that the widow had every inducement to postpone the proof of the will so long as she was alive, because the proof of the will would involve payment of probate duty on the value of the estate. If Naubat Lal had died interstate, the widow would in the ordinary course have enjoyed a life estate in his property without the payment of any succession duty, so that it was natural that she should postpone proving the will, and that it should not be produced in Court until the property devolved in a manner dependent on the will, that is to say, until it took a course at variance with the ordinary course of intestate succession. The explanation is reasonable; though it may be unfortunate that the liability to pay probate duty which is incurred by the person propounding a will affords such manifest temptation to delay propounding it when the estate immediately created by the will is for practical purposes similar to that which would follow on intestate succession. The explanation is one which must be accepted.

(3.) Mr. Khurshed Hussain argues in the second place that the will ought to be regarded with suspicion as being an unnatural will, because it disinherits the reversionary heirs of Naubat Lal. The learned District Judge regarded the will as a natural will, that is to say, he considered that Naubat Lal had left his property in the manner which would be expected, considering the circumstances in which he. lived during the latter part of his life. Mr. Khurshed Husain suggests that a pious Hindu disinheriting his reversionary heirs, and leaving the property in a manner not warranted by the Shashtras, would suffer in spiritual benefits; and that the will must be regarded as unnatural and as prima facie open to suspicion on that ground. It may be observed that this kind of criticism might be made of practically every will executed by Hindus of small means in Behar, since unless the property were left in a manner at variance with the rules of intestate succession, there would be no point in making a will at all. But Mr. Khurshed Hussain, conceding that it may be natural that some provision, should be made for Musammat Bhagwati Kuer and her daughter, argues that a pious Hindu would not have ignored the interest of his reversionary heirs. There is actually in the will the expression of a desire that if no children should survive Musammat Bhagwati Kuer and her daughter, the property should go to his sister's sons; and it is possible that the testator intended in this way to create a valid contingent remainder for the benefit of their families, but it is no part of our duty as a probate Court to express an opinion on the validity of this contingent bequest. On the whole it appears to us that the view set forth by Mr. Baldeo Sahay, supporting that of the learned District Judge is correct, that this is such a will as we should expect to be executed by a person living as Naubat Lal and his wife did, having for practical purposes adopted Musammat Bhagwati Kuer as a daughter. The will is not to be regarded with suspicion as being in any way unnatural.