SANTU Vs. MAIKU

JUDGEMENT

(1.) This is an appeal by an objector to an application for probate. The applicants presented an application for probate of the will of one Sita Ram alleged to have been executed and registered by him on 3 May 1929. That Sita Ram who died on 22 February, 1934, did execute a will on 3 May 1929, does not, in our judgment, admit of any doubt whatever. The learned District Judge who heard the application for probate has upon a consideration of the evidence held that the will, a certified copy of which only has been produced was executed by Sita Ram on that date. The two attesting witnesses had died by the time the application came before the learned Judge for final disposal. One of these witnesses, Baldeo Prasad, however had made at an earlier stage of the proceedings a declaration which is referred to in the application itself. The declaration is as follows: I, Baldeo Prasad, one of the witnesses to the last will and testament of the testator mentioned in the above petition, declare that I was present and saw the said testator affix his signature thereto.

(2.) Furthermore the scribe Chandu Lal gave evidence and deposed that the will in respect of which probate is sought was executed by Sita Ram. The endorsement shows that Sitaram was duly identified before the Sub-Registrar. It is unnecessary to refer further to the evidence on this point. We see no reason whatever to differ from the conclusion which has been reached by the learned District Judge. The applicants having failed to produce the original will it was for them to show that the will had not been revoked by the testator before his death. In this connection it is appropriate to refer to the provisions of the will. In the will the testator declares: I have arrived at an age of sixty years, I have no male or female issues, my wife has died. I have purchased out of my own hard earned money, two houses.... I am not living in my houses and carry on business separately for a long time. I have no co-sharer or co-partner in my moveable and immovable property and both the houses have not been transferred in any way or stand hypothecated anywhere. I think it proper that I should make some proper arrangement of my property in my life time so that after my death my property may not be wasted. I, therefore, while in a sound state of body and mind and in the full enjoyment of my senses, without compulsion and coercion on the part of anyone else and of my own accord I have executed, after due consideration and in consultation with my well wishers, the will in the following terms So long as I, the executant, shall remain alive, I shall be the owner in possession of all my moveable and immovable property, outstanding debts, household goods, ornaments, cash, utensils and clothes I shall have every proprietary power to bring the things to my own use and make transfers in respect thereof. After the death of me, the executant, Sri Thakur Krishnaji installed in the temple in house No. 19/127 situate in Patkapore Bazar, Ram Narain, city of Cawnpore shall be the owner in possession of my moveable and immovable property, household goods, outstanding debts, ornaments and cash, etc.

(3.) It will be seen that by the aforementioned provisions the testator made an endowment of his entire property. The later provisions in his will make provision for the creation of a trust to manage the endowed property. Bight trustees were appointed, the first named being Maiku Lal one of the petitioners. It is alleged by the petitioners in their petition that the original will had been mislaid since the testator's death. The evidence adduced by the petitioners in regard to the disappearance of the will was directed to proving that one of the trustees mentioned in the will namely Shri Kishan appropriated the will on the day after the death of the testator and had refused to make it available. In the course of his evidence Maiku Lal deposed: He (the testator) himself until his death managed the property on behalf of Thakurji. In the interval between the execution of the will and the testator's death I did not see the will When the testator's property was examined after his death no list was drawn up. The household property was left as it bad been. The money and documents were found by the idol of Thakurji. Shri Kishan opened the door next day in my absence and took the money and the will away. I read out the will aloud in front of all present after the testator's death. I asked Sri Kishan for the will four or five days later. He said he had it under lock and key and would let me have it later. After that I asked for it several times but he always made excuses saying he would give it to me later. This went on for two or three months. I then gave up asking for it. Two or three months after that he gave me the key. I then opened the Kothri in the absence of Sri Kishan but in the presence of others, that was two or three months after the death of the testator and the day after I had been given the key. The Kothri is in the same house as mandir. Various things were found of which a list was made land others signed the list. The will was not found. I have the list but not with me at the moment. There was no note on the list that the will was not found. The will was not asked for from Sri Kishan after that.