THAKUR ISINGH Vs. THAKUR BALDEO SINGH

JUDGEMENT

(1.) THIS case has been argued so recently that the introductory facts need not be recapitulated. It will be sufficient to bear in mind that the suit concerns property of two classes--that comprised in list A and that comprised in list B--to which quite different considerations apply.

(2.) WITH respect to the property in list A, the whole controversy turns upon the validity and the character of the instrument which is marked as Exhibit C in the cause, being an instrument executed on the 28th of June 1871, by Maharaj Singh, for the purpose of effecting a transfer of the property contained in it to Baldeo Singh, the respondent. It will be convenient first to consider the character of the instrument, because certain arguments were advanced against its validity depending entirely on the hypothesis that it is a transfer operating inter vivos, and their Lordships have come to the opposite conclusion, namely, that it must be considered as a will.

(3.) AS regards judicial opinion, it may be observed that the question of will or deed was an issue between Baldeo and Ishri after the death of Maharaj, before the Deputy Commissioner of Sitapur, upon the application for mutation of names; and he held it to be clearly a will. The Judicial Commissioner in the present case gives no opinion upon the point. The District Judge thinks that it is a deed, though he says it is not very material whether it is held to be one or the other. His reasons for thinking it to be a deed are that the donor Maharaj uses the word "tamlik" ("assign") and calls his deed a "tamliknama," and he has it stamped as if it were a deed. It appears that the stamp is not exactly that which the instrument would bear if it were a deed of assignment, but the District Judge says it is not so far distant from it, but that it carries to his mind a conviction that the stamp, coupled with the use of the name, shows that Maharaj intended something different from a will. Then he says that it cannot be a will, because it affects the property in the lifetime of Maharaj; but that seems to their Lordships to be an assumption of the question. Of course if it affects the property in the lifetime of Maharaj it cannot have a testamentary character, but the very question is whether it does affect the property in the lifetime of Maharaj. The District Judge does not assign any additional reason for thinking it does affect the property in that way.