(1.) This appeal arises out of a suit brought by the plaintiffs, who are appellants here, to recover possession of property, movable and immovable, of the value of upwards of Rs. 6,00,000. The property belonged to one Nanak Chand, a Brahman residing in Meerut, who died on the 16 of October 1899. He left him surviving his widow named Musammat Champa, who died at Calcutta on the 9 of March 1900. He left no issue. The plaintiffs are the grandsons and great-grandsons of one Kishan Sahai, the paternal uncle of Nanak Chand, and claim to be entitled to his estate as reversioners. On the 20ch of January 1885 Nanak Chand executed a will, which is printed at page 72 of the respondent's book. He was then in the 23rd year of his age. By this will he left his property, subject to an allowance of Rs. 100 a month to any widow he should leave behind, in trust to the District Judge, and, if he should decline to act, to the Collector of the district. By paragraph 8 of the will he declared that 1\4 of the income of his estate should be spent in charity, namely, in the distribution of food among travellers, faqirs, and devotees, and in assisting the needy. He states that it is not his object that such persons as are healthy and habitually carry on begging as a profession and dislike to do work should be assisted. By paragraph 9 another 1\4 of the income of the property is devoted to the assistance of friendless people and widows of respectable families who would feel it a disgrace to ask openly for relief, and to other matters of public utility. By paragraph 10 of the will the remaining 1\2 of the income is directed to be applied to the construction of a school to be called "The Nanak Chand Anglo- Sanskrit School" for teaching English, Sanskrit, Nagri and Urdu to students of all castes and creeds, preference being given to Hindu boys. The will provides that if the testator should leave a son, the whole of his property should go to him and he reserves to himself the right to adopt a son. The will provides that only in the event of the testator leaving neither a begotten nor an adopted son is the property to go to the District Judge. The will also makes provision for any daughters that he might leave. In paragraph 1 of the will the testator says that he has long been living separate and has up to that moment been separate from the descendants of his uncle Lala Kishan Sahai. This will was witnessed by no less than twenty-eight witnesses, and it was presented for registration, and duly registered by the District Registrar Mr. Harrison on the 22 January, 1885. The original will is not forthcoming, but an authenticated copy of it, taken from the transcript made of it in the District Registrar's book at the time of registration, is on the record. The District Judge having declined to administer, the Collector of Meerut took possession of the estate a few days after the death of Musammat Champa, The present suit was instituted against the Collector on the 8 of July 1902, and it was dismissed by the learned Subordinate Judge on the 10 of November 1903. The case of the plaintiffs is that Nanak Chand owing to his displeasure with the other members of his family executed the will, but that before his death he became reconciled to them and increasingly fond of his wife Musammat Champa; that he accordingly changed his intentions about his property, and cancelled the will mentioned above in order that his estate might devolve upon his heirs in the ordinary course of inheritance. How and when the will was cancelled the plaint does not state. In paragraph 11 of the plaint it is stated that the will "was declared to be invalid and ineffective by means of cancellation made in clear words." It is alleged that Nanak Chand having cancelled his will died intestate, and that his estate devolves on the plaintiffs as reversioners. Another plea put forward by the plaintiffs is that at the time when the will was executed Nanak was member of a joint Hindu family, to which they belonged, and that the will is consequently invalid. The defence was that Nanak Chand was separate from the members of his family for a considerable time before the execution of the will, that he was the sole owner of the property bequeathed by him and that the will was never cancelled.
(2.) The great bulk of the voluminous evidence, both oral and documentary, which has been adduced in the case, was directed to the issue as to whether Nanak Chand was or was not separate from the rest of his family at the time he made his will. The other main issue in the case was whether he had revoked the will. On both these issues the lower Court found in favour of the defendant. In the memorandum of appeal to this Court eight pleas are put forward. The last two were not pressed by the learned advocate for the appellants, the remaining six pleas relate to the two issues set forth above. The first, second and third have reference to the issue as to whether Nanak Chand was at the time he made the will a member of the joint undivided Hindu family. If it were necessary to decide this issue we should not have much difficulty in agreeing with the Court below in its finding. Nanak himself distinctly says in his will that he was separate at the time he made his will, and there is a mass of evidence in support of his assertion. But in our opinion this issue is not at, all material to the case. It is admitted that Nanak did separate from the rest of his family in 1886 and that he was separate when he died. Having regard to this admitted fact the contention on behalf of the plaintiffs that, assuming that he was joint at the time of the will, the will is thereby invalidated, cannot in our judgment be sustained. The rule enacted in 1 Vict., Cap. XXVI, Section 24, namely, that a will is to be construed as speaking and taking effect as if it had been executed immediately before the death of the testator, unless a contrary intention shall appear by the will, has been embodied in the Indian Succession Act, 1865, Section 77. That section has been incorporated in the Hindu Wills Act of 1870. It is true that this Act does not extend to these Provinces; but we see no reason whatever why the principle should not beheld applicable to the case before us. We hold therefore that, even if it had been shown that Nanak Chand was joint at the time when he made the will, the will must be construed as speaking and taking effect with reference to the state of things in existence immediately before the testator's death, when admittedly he had separated from the members of his family. This disposes of the first three grounds of appeal.
(3.) The 4th, 5 and 6 grounds refer to the issue as to whether the will had been revoked by Nanak before his death. It may be mentioned here that it appears from the pleadings that on the 9 of November 1899, a will purporting to have been executed by Nanak on the 14 October 1899, that is, two days before his death, was presented for registration by one Ram Sarup on behalf of the widow Musammat Champa. Registration of this was refused, and we are informed that it is common ground that the will propounded by Ram Sarup was a forgery. We have no information as to what were the contents of this forged will, or as to the grounds on which it was refused registration, the documents relating to it which were filed with the plaint having been returned to the plaintiffs.