Kashi Nath Singh vs Dulhin Gulzari Kuer

Shearer, J.—This is an appeal against a decree of the Additional District Judge of Shahabad, granting letters of administration with a copy annexed thereto of the will of one Mt. Barta Kuar, who died on or about 18th July 1929. The will, which was an unregistered will, was executed about a week prior to her death. By it Mt. Barta Kuar bequeathed the whole of her property to her great-grandson, Ram Chander Singh who was then a child of two or three. At the time when the will was executed there were other relations of Mt. Barta Kuar living, namely, a son, Charitar Singh, a daughter Mt. Rajwanti Kuar and her son, Sobhnath Singh and a great grandson, Radha Mohan Singh. The sole legatee, Earn Chander Singh, is the son of Radha Mohan Singh and the respondent, Dulhin Gulzar Kuar.

In the will Mt. Barta Kuar explained why she had decided to bequeath her property to the child, Ram Chander Singh, instead of to any of these persons. At the end of the will, there was also a specification of the property which the testatrix purported to dispose of. It consisted of a house in the town of Arrah together with an orchard and some kasht land and an interest in each of two revenue paying estates.

On 2nd January 1930, that is, within less than six months of Mt. Barta Kuar''s death, an application was made to the Collector of Shahabad asking, that the name of the sole legatee, Ram Chander Singh, should be entered in register D instead of that of Mt. Barta Kuar, as a co-proprietor in the two revenue paying estates. This application was successful. Shortly afterwards, on 4th August 1930, an application was made to the Municipality asking that the name of Ram Chander Singh should similarly be entered in the municipal registers as the owner of the house. The house was, however, not recorded in the name of Mt. Barta Kuar, but in the name of her son, Ram Chariter Singh.

The proceedings in the Municipality were for some reason or other unduly protracted, and ultimately the application was rejected. Nothing more was done in the matter of the estate of Mt. Barta Kuar until 1935. The appellant, Kashi Nath Singh, in that year instituted a suit against Ram Chariter Singh, and in execution of the decree which he obtained attached the house which, as I have just said, was in the municipal registers recorded in his name and not in the name of his mother, Mt. Barta Kuar. The attachment was effected on 20th September 1955, and on the same day, Mt. Gulzaro Kuar, the mother of Ram Chander Singh, applied for the grant of letters of administration.

In the interval, it should be said, Ram Chander Singh had died. The application for the grant of letters of administration was opposed by Kashi Nath Singh, who apparently assumed that he was entitled to oppose it as ho had attached the house which was one of the properties which the will purported to bequeath to Ram Chander Singh. The will is a document covering some four or five pages and the thumb impression of Mt. Barta Kuar is on the first of these pages only and not on any of the subsequent pages. Moreover, there do not appear on the will the signature or initials of the Deputy Collector who dealt with the application made under the Land Registration Act or of the Chairman or the Vice-Chairman of the Municipality, nor is there on the back of the will the impression of the seal of any Court or office.

It is somewhat curious that the thumb, impression of the testatrix should not have been taken on each page of the will and that, if it was filed in the Court of the Land Registration Deputy Collector, or in the Municipal office, no seal should ever have been put on it. Relying on these circumstances the contention put forward on behalf of the objector, Kashi Nath Singh, was that the will, which was propounded by Mt. Gulzaro Kuar, was not the document which Mt. Barta Kuar had executed.

The document which Mt. Barta Kuar had executed was, it was contended, a deed of gift. The first page of this document had, it was suggested, been retained, and the remaining pages had been removed and others substituted in order to convert the document from a deed of gift into a will. In endeavouring to support this theory reliance was mainly placed on the circumstances to which I have just referred and on the evidence of Babu Bimla Sahai, a Pleader, who was a member of the subcommittee which dealt with the application made to the Municipality. Babu Bimla Sahai expressed the opinion that the document which had been filed in the Municipal office must have been an unregistered deed of gift, and could not have been a will. In saying so Babu Bimla Sahai relied on the reasons which were given by himself and the other two members of the sub-committee for rejecting the application for mutation. The deduction does not, in my opinion, necessarily follow, and it is significant that Babu Bimla Sahai was unable to say positively that the will was not the document with which the sub-committee had had to deal in 1931. Moreover, in cross-examination Babu Bimla Sahai was forced into an admission that he had been briefed to appear in certain litigation by the objector Kashi Nath Singh.

Mr. D.N. Varma, for the appellant, has also relied on the language used in the application made to the Municipality. It is true that the document was there described as a deed of gift. It was also, however, described as a will. In fact, in one passage in the application there occurs the curious expression "deed of gift--will", the words "bakhsishnama" and "wasiatnama" both being used. It is also significant that although in the application to the municipality the document was somewhat loosely described the expression used in the application to the Land Registration Deputy Collector, which had been made some time previously, was wasiatnama or will. Although the will does not bear the impression of any seal, not the signature of the Chairman or the Vice-Chairman of the Municipality, or of the Deputy Collector, it bears endorsements by the record-keeper and by another clerk of the municipality. Both these gentlemen were put into the witness box by the plaintiff and they said that the endorsements on the back of the will were made by them and that the will was the document with which the sub-committee of the municipality had had to deal. It has not been disputed that the thumb impression on the will is the thumb-impression of Mt. Barta Kuar, and it must, therefore, be assumed that during her last illness Mt. Barta Kuar did in fact execute a document, the object of which was to ensure that certain property would devolve on her great great-grandson, Ramchander Singh. I cannot see any very good reason why the advisers of Mt. Barta Kuar one of whom was Mohammad Zaki, a pleader''s clerk should have wrongly advised her to execute a deed of gift instead of a will. Also having regard to what is contained in the application which was made on 3rd January 1930, to the Land Registration Deputy Collector, it is clear that the document then relied on was a will, and not a deed of gift.

In my view, there is no good reason to suppose that the suggestion put forward on behalf of the objector that the will which was propounded by Mt. Gulzaro Kuar was not the document which Mt. Barta Kuar in fact executed, is a tenable one. That being so, the only other question that arises is whether or not the will was validly executed. The will was drawn up by Mohammad Zaki (p.W. No. 1), who, as I have already said, is a pleader''s clerk. It was signed on behalf of Mt. Barta Kuar by her son, Ram Chariter Singh, and was attested by him and by five other persons. Three of these persons, namely Gharbharan Earn (P.W. 3) Kailash Singh (p.W. 4) and Eatan Singh (p.W. 6) were called to say that Mohammad Zaki wrote the will at the request of Mt. Barta Kuar and that at the time when she executed the will Mt. Barta Kuar, though suffering from asthma, was otherwise in a perfectly sound state of health and was fully aware of what she was doing. Sobh Nath Singh (P.W. 5), who is the grandson of Mt. Barta Kuar, also came forward to say that he had been present when the will was executed. The learned Additional District Judge had the advantage of hearing these persons give their evidence, and he was apparently satisfied that they were witnesses of truth.

As I have already said, it seems quite certain that this will was in fact the document which Mt. Barta Kuar executed. There is thus no good reason to distrust the evidence of the various persons who were called to speak to the circumstances under which it came into existence. The lower Court was, in my opinion, entirely justified in coming to the conclusion that the will was duly executed and in directing that letters of administration should issue to the'' proponent, Mt. Gulzaro Kuar.

As I have already said, the reason why the appellant, Kashi Nath Singh, came to object to the grant of letters of administration was that in execution of a decree which he had obtained against Earn Chariter Singh, the son of the testatrix, Mt. Barta Kuar, he had attached the house and kasht land which was described in the will as the self-acquired property of Mt. Barta Kuar. It is a matter of surprise that his right to appear and oppose the grant of letters of administration as a person claiming to have an interest in the estate of the deceased within the meaning of these words as they occur in Section 283, Succession Act, should have been accepted as it was.

Mr. D.N. Varma in attempting to justify the intervention of his client referred to certain observations in a recent decision of this Court in In the goods of the estate of R.S. Sinha Vs. Miss Salena Hector, . The observation in question is this:

A creditor, who has attached a portion of the estate might possibly be a person who had an interest in the estate but a mere creditor without even a decree can hardly be said to have an interest in the estate.

Mr. D.N. Varma also referred to Nobeen Chunder Sil v. Bhobosoonduri Dabee (81) 6 Cal. 460. In that case two brothers shortly after the death of their father, had borrowed money and by way of security had given a mortgage over certain property which admittedly belonged to their father. Some time after this mortgage bond was executed, a will was propounded by their mother. Under that will their mother was to take a life interest in the estate of their father, any interest which they themselves were to take was postponed. If the will was a valid will, the result was that the mortgages which they had executed were not valid.

In the circumstances it was held that the mortgagees were entitled to intervene and oppose the grant of probate as they were persons interested in the estate of the testator. These decisions, it is obvious, are of no assistance to the present appellant, Kashi Nath Singh. Kashi Nath Singh is not a creditor of the testatrix, but a creditor of her son Earn Chariter Singh. So far from its being admitted that the property disposed of by the will is the property of the testatrix, the contention is that it belongs to her son, Earn Chariter Singh, and is therefore liable to be taken in execution of the decree which Kashi Nath Singh has obtained against Earn Chariter Singh.

In Gopal Chandra Bose v. Ashutosh Bose (13) 20 I.C. 342 it was pointed out that a person who claims outside and independently of a will or claims adversely to the testator and disputes his right to deal with the property, can in no sense be deemed to claim an interest in the estate of the deceased within the meaning of Section 283, Succession Act. That was a ease in which the daughter of a Hindu had executed a will disposing of property which she claimed to have inherited from her father and the contention put forward on behalf of the objector was that she had really taken no more than a life interest in the estate and was, therefore, not competent to dispose of it by will. The reasoning, it is obvious, applies a fortiori to the present case.

In the written statement, which was put in by Kashi Nath Singh, there occurs this:

The properties mentioned in schedule A never belonged to Mt. Barta Kuar nor did she ever get possession over them rather the properties belonged to Chariter Singh and they have all along been in his possession.

In an application for probate of a will or for the grant of letters of administration with a copy of the will annexed the sole question that arises is whether or not the will is a true one. It is not open to the probate Court to decide whether or not the property with which a testator has purported to deal, in fact, belonged to him. In Birj Nath De v. Chandra Mohan Banerji (97) 19 All 458 Sir John Edge said this:

It has been contended that where an application for probate of a will is contested and it is alleged that the property dealt with by the will was not of the testator or was not property over which the testator had a power of testamentary disposal, it is the duty of the Court to try an issue raising this question. All we can say is that it would be exceedingly inconvenient if Courts in this country had to try such issues. A Court could never be quite sure that it had got the proper parties before it. It would be difficult always to be sure that there was no collusion in the case. It is much safer in the interests of the public that issues as to the title to property should be decided when the issues are raised in a regular suit, and not on an application for a grant of probate.

It is true that the learned Additional District Judge realised perfectly well that it would have been improper for him to decide whether or not the house and the orchard and kasht land described in the will actually belonged to Mt. Barta Kuar and not to her son, Ram Chariter Singh. It is, however, a pity that he did not also recognize that for more or less the same reasons as made this improper Kashi Nath Singh was not a person interested in the estate of the testatrix and as such entitled to oppose the grant.

The result of permitting persons in such a position as Kashi Nath Singh to appear and contest the grant of probate or letters of administration may be very inconvenient and troublesome to the proponents of a will who are thereby put to the expense of proving it in solemn form when it might otherwise be proved in common form.

I would dismiss this appeal with costs.

Meredith J.

I agree.