RAI BR PANNALAL Vs. LALA HANSRAJ GUPTA

JUDGEMENT

(1.) This suit has been set down for the trial of certain issues settled by McNair J. on 5th December 1938. The facts can be summarized as follows : One Lala Raghumull Khandelwal, a resident of Delhi, to whom I shall refer as "the testator," died without male issue on 5th September 1926. More than twelve years prior to his death, on 6 April 1914, he had executed a will, whereby be appointed his friend Rai Sahib Kedar Nath and his nephew Deen Doyal his executors. As to the residue of his estate, moveable and immovable, he directed that if he died without male issue it should be applied by his executors for the purpose of education of boys and girls belonging to the Hindu community, the Arya Samaj having preference in such manner and under conditions as to his executors shall seem proper. The will was deposited for safe custody with the firm of Messrs. B.N. Basu & Co., the well-known attorneys. On the day before his death, that is to say on 4 September 1926, the testator executed another will. He appointed as his executors his son-in-law Hansraj, his two nephews Dinonath and Gordhan Das, and one Gopal Das Modi. He gave power to his wife Bhagwati Debi to appoint herself or another person as fifth executor and she subsequently exercised this power by appointing herself executrix. By this will the testator purported to revoke all wills and testamentary dispositions theretofore made by him.

(2.) The second will does not contain a bequest for the purpose of the education of Hindu boys and girls, such as is found in the first will. On 23 September 1926, the executors and executrix of the second will applied for probate to this Court in its testamentary and intestate jurisdiction. Caveats were entered by various members of the testator's family and also by Kedar Nath, the executor of the first will. All these caveats were subsequently withdrawn and probate of the second will was granted on 10 January 1927. The executors subsequently fell out among themselves and in July 1929, the executor Gopal Das filed an administration suit. The Official Receiver was appointed receiver of the testator's estate on 16 June 1931. On 11 May 1937, the plaintiffs obtained leave under Order 1, Rule 8(1), Civil P.C., as members of the Hindu community to sue on behalf of all persons including boys and girls belonging to the community, and also to make the Official Receiver a defendant. On 16 May 1937 this suit was instituted.

(3.) The only other fact that requires mention is that on 18 May 1937, McNair J. dismissed an application made in the testamentary jurisdiction under Section 263, Succession Act, for revocation of the grant of probate of the second will. The application was made by Rai Bahadur Pannalal and Pundit Shiva Narayan Kaul, two of the plaintiffs in this suit, notice of motion having been given on 25 August 1936. The defendants in this suit are the five executors of the second will, the testator's daughter, who is the wife of the first defendant, four persons to whom certain specific properties are thereby bequeathed in trust for charitable and religious purposes, and the Official Receiver. Paras. 7 to 25 set out a long story to the effect that the execution of the second will was obtained by the defendants other than the Official Receiver at a time when the testator lacked testamentary capacity, and that subsequently the caveators were induced to withdraw their opposition to the grant of probate by corrupt means.