DWARKA NATH SINGH Vs. MT RAJ RANI

JUDGEMENT

(1.) The point for decision in this case is whether a will executed by one Thakur Shankar Bakhsh Singh (whom it will be convenient to call Shankar Bakhsh) bearing date 28 July 1904, was a disposition of his property made with the consent of the Court of Wards at Sitapur in the terms of S. 34, North Western Provinces and Oudh Court of Wards Act (3 of 1899). The appellants propounded the will in question and petitioned the Chief Court of Oudh at Lucknow for letters of administration of the estate of the ward with a copy of the will of 28 July 1904 annexed. A number of objections were raised to the alleged will; but they have all failed except on the point as to the lack of consent of the Court of Wards. As to this the Chief Court in its original jurisdiction has held that the consent of the Court of Wards was obtained. The Chief Court in its appellate jurisdiction has held the contrary. The relevant facts are as follows: On 1 August 1901, the estate of Shankar Bakhsh was taken under the management of the Court of Wards under S. 8 (d) (i) of Act 3 of 1899 above-mentioned. By S. 4 there-of the Board of Revenue is the Court of Wards. The testamentary capacity of a ward of the Court is governed by S. 34 of the Act which is as follows : A ward shall not be competent (a) to transfer or create any charge on, or interest in, any part of his property which is under the superintendence of the Court of Wards, or to enter into any contract which may involve him in pecuniary liability : but nothing in this clause shall be deemed to affect the capacity of a ward to enter into a contract of marriage : provided that he shall not incur, in connexion therewith, any pecuniary liability, except such as, having regard to the personal law to which he is subject, and to his rank and circumstances, the Court of Wards may, in writing, declare to be reasonable ; (b) to adopt, or to give a written or verbal permission to adopt, without the consent of the Court of Wards ; (c) to dispose of his property by will without the consent of the Court of Wards : Provided, first, that the Court of Wards shall not withhold its consent under Cl. (b) or Cl. (c) if the adoption or testamentary disposition is not contrary to the personal or special law applicable to the ward, and does not appear likely to cause pecuniary embarrassment to the property, or to lower the influence or respectability of the family in public estimation : Provided, secondly, that the provisions of Cls. (b) and (c) shall not apply to any proprietor in regard to whose property a declaration has been made under S. 9.

(2.) No declaration under S. 9 was made in respect of the estate of Thakur Shankar Bakhsh Singh and therefore the second proviso has no application to this case. Previously to his becoming a ward Shankar Bakhsh had made a will, which did not require the consent of the Court of Wards. It was dated 19 June 1901, and by it he bequeathed his property absolutely to his wife Mt. Raj Rani. On 30 November 1901, he purported to make another will which was registered on 3 December 1901. By this will he revoked the will dated 19 June 1901, and bequeathed his entire property to his wife for life without power of alienation and after her death to Ganga Bakhsh Singh, his cousin, and his sons, the appellants. The will was sent through official channels to the Board of Revenue which refused to sanction it; and this refusal was communicated to Shankar Bakhsh by the Deputy Commissioner on 6 August 1902. Shankar Bakhsh presented two petitions to the Board of Revenue, dated 7 October 1902, for permission to adopt a son and asking for the reason why sanction was refused to his will, dated 30 November 1901, and registered on 3 December 1901. He requested the Board to reconsider its decision.

(3.) As the result of consideration the Board of Revenue authorized Mr. Dunne, the special manager of the Court of Wards at Sitapur, to inform Shankar Bakhsh that the Board were prepared to sanction a new will being executed by him provided it fulfilled all the conditions laid down in the Court of Wards Act. This information was duly conveyed to him by a letter of 4 July 1903. He was reminded later of the matter and asked to give an early reply on 6th August 1903, On 18 January 1904, Shankar Bakhsh forwarded to Mr. W. R. Partridge, the Deputy Commissioner at Sitapur, a draft of a new will and asked for the consent of the Court of Wards to it. On 16 March 1904, the Board of Revenue wrote to the Commissioner, Luck- now Division, requesting that the attention of Shankar Bakhsh should be drawn to the fact that the net revenue of three villages mentioned in the draft will might not be sufficient to cover the amount of certain maintenance legacies charged by the proposed will upon the said villages; and they also called for a medical certificate as to his mental condition. The certificate was obtained and was satisfactory. On 27 April 1904, Shankar Bakhah wrote to the Court of Wards stating his willingness to add another village to the villages the income of which was to provide for the allowances and stating also that he desired to strike out of the draft will which he had submitted a certain provision on which nothing now turns. The facts were communicated to the Board of Revenue who after consideration came to the conclusion that the Court could not any longer refuse its consent. On 25 May 1904, the Board wrote to the Commissioner of Lucknow that :