UMA CHARAN BOSE Vs. RAKHAL DAS RAY

JUDGEMENT

(1.) This is an appeal by the applicant for the grant of letters of administration with a copy annexed of what is alleged to be a will of one Upendra Nath Ray, dated the 5 July 1907. Upendra died in 1914 leaving a widow Damayanti. That lady obtained letters of administration of the estate of Upendra Nath Ray with a copy annexed of the document which was described in the grant as a trust-deed in 1916. The widow died in 1924 and the appellant thereupon applied for letters of administration with the document annexed on the allegation that on the death of the widow he was entitled to obtain letters of administration. The objector is the heir under the Hindu law of Upendra Nath Ray. This matter came up before the Subordinate Judge of Burdwan for hearing and he dismissed the application by an order dated the 3 December 1925. The argument that was addressed to the learned Judge in the Court below on behalf of the appellant was that after the death of the widow of the executant of the document under the terms of the deed of trust, he was entitled to be a trustee of a certain portion of the property mentioned in the deed and thus he was entitled to letters of administration. Various objections were raised by the opposite party. But it is unnecessary to state them in detail as the learned Subordinate Judge has only sustained the plea that the application by this person was not maintainable. It was contended before the Subordinate Judge that the application was maintainable under the provisions of Section 37, Probate and Administration Act, 1881, now replaced by Section 250, Succession Act, 1925. The Subordinate Judge did not accept that contention and he has dismissed the application on the ground that the petitioner before him had no right to maintain the application.

(2.) It is contended on behalf of the appellant that the petitioner had a right to maintain the application with reference to the provisions contained in the deed of trust of 1907 and that the Subordinate Judge was wrong in holding that the applicant could not maintain this application. The respondent on the other hand contends that the document, on the basis of which the application is made, is riot a will and therefore the applicant was not entitled to come to the probate Court in order to ask for letters of administration with the copy of the document annexed. The contention of the respondent is that under the document the property was conveyed to the different grantees and there was no testamentary disposition which was to be given effect to after the death of the testator. That being so, the application for letters of administration with the copy of the document annexed is not maintainable. In order to see what the document is it is necessary to recite some of the provisions of the document. It begins by making the usual recital as regards the necessity for making the provisions for his property as he was old and as he had no son of his own. The executant of the deed described the document as niynmnibandha patra, that is, a deed of trust. It then states that whoever would be his heir in future might raise a dispute with regard to the property and that in that view it was extremely necessary that a noyampatra (deed of trust) should be made with regard to the mode in which the moveable and the immovable properties should be enjoyed in future.... It is not necessary to state anything with regard to para. (1) as no argument was addressed upon it. Para. (2) makes a present dedication of certain properties in favour of his ancestral deity Sri Sri Iswar Sridhar Jieu Deb and the objector is appointed a shebait after the death of the grantor. The next important passage is contained in para. (7) and with reference to that paragraph the appellant claims that there has been a testamentary disposition and he is entitled, according to the tenor of that paragraph, to ask for letters, of administration of the estate with the will annexed. The relevant passage runs thus: I give (Arpan karilani) to the H.I. Charitable Dispensary according to the following provisions the aforesaid properties together with the government securities and furniture and loan business etc. described in schedule cha. After my death my wife Sreematy Damayanti Dasi will be the trustej of the said properties.... In the absence of all those (persons) Sreeman Umacharan Bose (the present appellant)...and his sons grandsons...will act like my wife.

(3.) The next important passage is in para. (12) which runs thus: I shall myself enjoy the properties which I shall acquire subsequently other than those which are hereby dedicated and made over for the said debsheba and the dispansary.