ASHTBHUJA RATAN KUER Vs. THAKUR DEBI BAKSH SINGH

JUDGEMENT

(1.) This appeal from a decree of the High Court at Allahabad dated 15 April 1937, concerns the genuineness of an alleged will of one Thakur Ambika Bakhsh Singh.

(2.) The main questions for determination are : (i) whether on the evidence before the Courts in India the genuineness of the will was established; (ii) whether the grant of letters of administration cum testamento annexo by the District Judge of Benares (which is within the "province" of Agra) is invalid on the ground that although the whole of the testator's property was situated within the United Provinces of Agra and Oudh, yet by far the larger and more valuable part of it was in Oudh and only a portion small in quantity and value was situated in Agra. On 1 October 1904, the testator is said to have executed in Jaunpur in Agra a will by which he gave successive life interests in his estate of Nanemau to (a) his elder brother's widow; (b) his own senior wife ; (c) his own junior wife, and thereafter in the events which happened to his posthumous daughter, who is appellant before their Lordships' Board. The testator is described in the document as being and in fact was Talukdar of Nanemau, District Sultanpur, Oudh. The will is a lengthy document which sets out firstly his title to the property, secondly his relatives who were living and dead and thirdly his reason for making a will at that time. It then goes on to deal with the succession to his estate in the manner set out above. Its terms are somewhat garrulous and ingenuous but not perhaps, unnatural in a man of the testator's position more particularly as he appears to have been influenced by the death of his brothers, which occurred at a comparatively early age, and by the prognostications of an astrologer who foretold danger to the testator's life in his 35 and 36 year, i.e., about a year after the date of the making of the will. The will concludes in para. 8 "Paragraph No. 8-I will keep this memorandum of will having enclosed it in an envelope at such a place that after my death no one except the three Thakuranis have access to it and I will write a slip in Hindi giving instructions that whoever may find it should not disclose it but should at once get it posted in some distant post office, and probably she will do so. I have thought of this plan so that there may be no friction among the three Thakuranis and no Thakurain should bring any accusation against another Thakurain that the Talukdar had done this in consultation with her, otherwise it will be a cause of ill-feelings among them. The envelope in which this memorandum will be enclosed will bear an address so that it may be presented before His Excellency the Governor-General of India in Council and His Excellency will be graciously pleased to send it to that officer who will fully take into consideration the conditions laid down herein because I do not know what department should deal with it and which officer is competent to consider over the contents thereof."

(3.) The testator died on 13 August 1905, at about the age of 35 or 36, leaving (i) his elder brother's widow, (ii) his own senior widow, (iii) his own junior widow, alive at his death. The appellant, who is the testator's daughter by his junior widow, was born posthumously on 31 October 1905. After his death someone appears to have carried out certain directions as to the despatch of a will of the testator to the Government of India, since, when the will in dispute was afterwards produced in the manner described later, there was attached to it a memorandum of the Government of the United Provinces addressed to the testator and there was written upon it an endorsement in red ink. (1) The memorandum is in the following terms : "REVENUE DEPARTMENT. Dated, Allahabad, 25 January 1906. Office Memorandum. The undersigned is directed to acknowledge the receipt of a document dated 1 October 1904, purporting to be the will of Babu Ambika Bakhsh Singh, Talukadar of Nanemau, Sultanpur District, which has been transferred by the Government of India, Foreign Department, to this government for disposal : and to say that the will should be registered under the Indian Registration Act, 3 of 1877. (Signed illegible). Under Secretary to Government, United Provinces. To Babu Ambika Bakhsh Singh, Talukadar, Nanemau, District Sultanpur." (2) The endorsement is as follows: "P. B. R. no. 1036. Received 20 November 1905." It was suggested in the Courts below that P. B. R. means Persian Branch Register and it is possible that the document which was in "Urdu" was sent to that Register for translation. The Government of India although approached after the issue of the plaint for further information on the matter were unable to supply any, inasmuch as they have destroyed the relevant records for 1905. The letter, however, is obviously genuine and no doubt as to its authenticity was raised in the Courts in India. It is not known who sent some will (whether this or other) to the Government of India but the later history of the document is as follows. One Niaz Ahmad, a muktar who had been employed on the estate during the testator's lifetime and after his death continued to act on behalf of his junior widow, kept a locked box, the contents of which are said to have been unknown, until he left the service and the estate in 1919. About a year after his departure, one Raj Narain who had been appointed to succeed him opened the box in the presence of the junior widow and others on receiving information (as he alleged) that Niaz Ahmad had died. In the box was found the will and letter and both were handed to the junior widow, who shortly afterwards presented the will for registration to the sub- registrar at Jaunpur.