Nirmal Nalini Devi and Another vs Nirmal Nalini Devi and Another

Mukharji, J.—This is a first appeal by one Saradindu Gangopadhya whose application for the grant of probate in respect of a document which, according to him is the will of a lady named, Jagat Tara Debi, has been rejected by the learned Additional District Judge of Dumka (Santal Parganas). The document in question is Ex. 1, and it has been printed at p. 32 of the paper-book.

The application for probate was filed on 2-8-1944, the testatrix died on 6-7-1944 at Deoghar which was her fixed place of abode. According to para. 3 of the application for probate, the appellant is the she bait named in the will and is also the executor by implication. The amount of assets which is likely to come to the petitioner''s hand is Rs. 22,650 8-0: vide para. 4 of the application for probate. The details of the assets are set forth in annexure A of the will. In the first place there was a prayer that a probate of the will might be granted. There was an alternative prayer that if the petitioner was not entitled to get a probate of the will, then letters of administration might be granted with the will annexed thereto. The properties mentioned in annexure A included both movable and immovable properties. Among others there is a brick built house valued at Rs. 10,000.

The main objector was Nirmal Nalini Devi. She is the widow of a deceased son of the testatrix. Another objector was Birendra Nath Pandey who is the son of one Bidhu Bhusan Pandey, a deceased brother of Kali Prasanna Pandey, the husband of Mt. Jagat Tara Debi, the testatrix. The genuineness of the will was called in question by the objectors. According to them even if it is genuine, it is not a will. The title of the testatrix to the properties mentioned in annexure A, already referred to and her right to dispose them of were challenged by the objector Nirmal Nalini Devi in para. 6 of her objection petition. In para. 8 and the subsequent paragraphs some serious allegations were made against the present appellant, Upon the pleadings of the parties, the learned Additional District Judge framed issues which are to be found at p. 16 of the paper-book. These are as follows: (1) Is the document alleged to be the last "will" of Jagat Tara Devi, a "will" within the meaning of the Succession Act? (2) Is the document genuine and duly attested? (3) Can a probate or letters of administration with a copy of the alleged "will" annexed thereto be granted to the applicant?

The above issues were framed on 30-5-1945. The learned Additional District Judge by his order dated 5-2-1946 held that "the application cannot be admitted to probate." The application was accordingly dismissed, but without costs. Hence this appeal.

Before I proceed further, I may refer to the contents of the alleged will. The document is in Bengali and purports to have been written by the lady herself. The handwriting will suggest even to a casual observer that the writer was barely literate. The English translation of the will is to be found at p. 32 of the paper-book and it is as follows:

I, this day, in a state of sound health, and mind, dedicate to Goddess Kailashri Mate whatever movable and immovable properties I possess. My relatives have no right whatsoever to interfere with this property and no one shall be competent to gift away or sell this property. After my death, my husband shall be the shebait. He shall not be competent to gift away or sell the same. After my husband''s death Saradendu Gangopadhya shall be the shebait. I have got another debottar will drafted and the same is ljing with the former Head Master of the Local school who is at present practising as a lawyer at Deogbar. I have not affixed my signature to it. The contents of that will were similar to those of this document. If I suddenly die this document shall be treated as my debottar will, and work shall be carried out in accordance with the directions mentioned in this document. I affix my signature and I exactly put down in writing what I have resolved in my mind. I have got no other will or document besides this document which I have executed and the unsigned and unregistered (will) which lies with the said lawyer. If I suddenly die, this document shall be treated as my debottar will. If my husband or my relations put obstruction in any way, it will not be accepted for all these houses, movable and immovable properties have been acquired out of my exclusive stridhan. My relations shall not be competent to interfere in any way with this debottar property and they shall not be treated as heirs of this property.

Srimati Jagat Tara Devi then affixed her signature and also the date. The first witness is her husband Kali Prasanna Pandey. His signature is preceded by the following endorsement.

My wife has, this day, scribed this in her own handwriting and she has herself put down the signature,

Then there are three witnesses more including a doctor named Sourindra Nath Mukhopadhya. The present appellant Saradindu Gangopadhya also signed as one of the witnesses. The date put down by Srimati Jagat Tara Debi is 5-9-1939, while three of the witnesses signed on 7-9-1939.

In order to fully appreciate the arguments advanced in this case regarding the true character of the document, Ex. 1, it is necessary to bear in mind the definition of the term ''will'' as given in the Succession Act (Act 39 [xxxix] of 1925). Section 2(h) is as follows:

''Will'' means the legal declaration of the intention of a testator with respect to his property which tie desires to be carried into effect after his death.

The document, Ex. 1, can be divided into two parts. The first part of it relates to the dedication of all the properties movable and immovable which belonged to the lady on the date the document was executed. The language of the document makes it clear beyond any doubt that the dedication was to take effect immediately if it had not already taken effect. The words "arpan karilam" occurring in the document mean "I dedicate." Disposition of property intervivos cannot form the subject matter of a will. The second part of the document, Ex. 1, relates to the appointment of she baits. Dr. D.N. Mitter in his able argument has contended that shebaitship being a property, this part of the document should be construed as a will. Mr. L.K. Jha appearing for the other side accepts the position, but his contention is that the document in question should not be construed as a will. According to him, the document is nothing more than a deed of dedication in which the foundress indicates the line of succession so far as the she baitship is concerned. Dr. Mitter has contended that a document may be non-testamentary in part and yet be admitted to probate. As regards this contention that shebaitship is a property, I need not refer to the various rulings that have been cited by him because, as already indicated, Mr. Jha accepts the position. The only question in this case is what should be the proper construction of Ex. 1. It is a well established principle of law that in order to construe a document one should look to the document itself. If it is, not clear, then the intention of its author is to be gathered from the surrounding circumstances.

It is not the case of either party that the document, Ex. 1, is vague or that it is couched in equivocal language. In North Eastern Rly. Co. v. Lord Hastings 1900 A.C. 260, their Lordships have laid down that where the language is plain and unambiguous the fact that the parties had interpreted the words in a sense different from that which the words themselves plainly bore could not affect the construction. A perusal of the document, Ex. 1, makes it clear that the lady first of all dedicated her properties, and then laid down who should be the successive shebait. No doubt she makes use of the term ''will'', but the mere mention of the word ''will'' will not make a document a testamentary one if really it is not so. Their Lordships of the Judicial Committee have made this observation in Tirugnanapal v. Ponnammal Nadathi AIR 1921 P.C. 89. One is to remember that the document in our case was executed by a lady who apparently had very little education. It will be too much to suppose that she understood what is meant by will. One thing which is noteworthy is that wherever she has used the word "will" she has qualified it by the word ''debottur''. From this it is sufficiently clear that what was uppermost in her mind was that she was creating a abettor of her properties both movable and immovable.

That a document can be partly a will and partly of a non-testainentary character does not admit of any serious doubt in view of reported decisions on this point. Williams in his Law of Executors and Administrators, Edn. 10, vol. I, at p. 291, says that a will may be in part admitted to probate and in part may be refused. The learned author goes on to say that although this may be so, the Court even by consent cannot order a passage of the will to be expunged which the testator being of sound mind intended to form part of it. In Doe v. Cross (1846) 115 E.R. 1041, a power of attorney was executed by a son serving in the Army in India in favour of his mother who was in England. According to the term of the power of attorney the mother was to receive and hold the income from certain properties in England until the son should return. There was also a provision that if the son did not return to England, the mother will take the income. The document was acted upon and the son died in India without returning to England. It was held that the disposing part of the document constituted a will. In Venkata Subbarayadu v. Pullamma AIR 1915 Mad. 930, there was a letter which in part effected immediate settlement. The rest of the letter related to the dispositions of property after the writer''s death. The Madras High Court held that the latter part is a will. Instances like these could be multiplied. On the authority of the decisions just mentioned it was argued by Dr. D.N. Mitter on behalf of the appellant that the second part of the document, Ex. 1, which relates to the appointment of shebaits after the death of Jagat Tara Davi should be treated as a will although the other part which creates an endowment may not be treated as such. Above I have stated that in the matter of the construction of a document one has to focus one''s attention on the language of the document. Another important point to be remembered in such a case is that the document should be construed as a whole. Exhibit 1 which we are called upon to construe is quite a short document and was apparently written at one sitting. The question of construing it in parts could only arise if read as a whole the document gives rise to inconsistencies and absurdities. Let us first of all take the document as a whole and see what sense it conveys. In the opening lines the lady created a trust. She dedicated all her properties to the deity, known as Kailashri Mata. After this, could the document stop short? Ordinarily speaking, the answer must be in the negative because whenever a religious endowment is created the founder or the foundress would like to lay down the line of succession to the office of the shebait. If a deed of endowment remains silent as to the future shebaits, the heirs of the founder become the shebaits. In Ex. 1 after stating that the lady dedicates all her properties to Goddes3 Kailashri Mata she prescribes as to who the future shebait of the deity will be. She of course does not say in so many words that she will her self be the first shebait, but her intention in this respect is sufficiently clear. She states that after her death her husband will become the sbebait and that on the death of her husband the present appellant will be the next shebait. The document further recites that the movable and immovable properties belonging to the lady are her stridhan properties and that neither her husband nor her relations have any right in these properties. The document read as a whole is a deed of dedication such as a Hindu lady will like to execute. Let me now separate the two parts of the documents from each other and see what result is obtained. We are asked to ignore the first part for the purposes of the present case because as already pointed out, the first few lines of the document deal with the immediate disposition of property. We must assume that a dedication has already taken place and the lady has already divested herself of her properties, because otherwise no question of shebait ship can possibly arise. The lady becomes the first shebait. Was it open to her to deal with her shebait rights in the manner she is alleged to have done? The rights of a shebait were considered in Raheshwar Mullick v. Gopeshwar Mullick 35 Cal. 226. It was held in this case that a shebait is a manager or quasi trustee for the benefit of the idol. It was further held in this case that a shebait cannot alienate the hereditary office of shebait ship by will. Our attention has also been drawn to the case in Chaitanya Gobind v. Dayal Gobinda 32 Cal. 1082. In this, case a shebait appointed a manager or shebait by a certain document. It was held that there was no testamentary disposition of the property belonging to the akhra. According to the definition of "will" the property which the testator disposes of by his will must remain his property at the time of his death, or must remain his property when the terms of the will are given effect to. A shebait holds his office for his life. If he can alienate shebait ship, he can do so during his life time and that again for good and sufficient reasons.

In Uma Charan Bose Vs. Rakhal Das Ray, there was a provision for the appointment of a future trustee in a document and it was contended before their Lordships that this provision made the document a will. The contention was negatived. Their Lordships hold that the document was not a will within the meaning of Section 2, Succession Act.

In para. 5 of the application for probate the appellant has stated as follows:

That your petitioner does hereby undertake to duly administer the property and credits of the said Jagat Tara Devi deceased and to make a full and true inventory thereof and to exhibit the same in this Court within six months from the date of grant of probate to him and also to render to this Court a true account of the said property and credit within 1 year from the said date.

The list of properties contained in annexure A is a fairly long one. Whether the document is construed as a whole or it is construed in parts the properties in question could not possibly belong to Jagat Tara Devi at the time of her death, because Ex. 1 clearly shows that whatever properties the lady had were dedicated to the deity. The statement of facts made in para. 5 of the application for probate runs counter to the ease of the appellant that by Ex. 1 the lady disposed of the shebait right only. I may also at this place refer to ground No. 4 of the grounds of appeal to this Court. There it is said that according to Ex. 1 there was no present dedication, but that the dedication was to come into effect on the death of the testatrix. In ground No. 5 a grievance is made of the fact that the learned lower Court did riot take evidence. According to the appellant there was overwhelming evidence in his possession to prove that the lady treated the property as secular property even after the execution of the document and until her death. I have already shown above-that the document makes it abundantly clear that the dedication took effect immediately and-was not postponed. By the statement made in grounds Nos. 4 and 5 of the memorandum of appeal the appellant has really given away his whole case. If the lady continued to treat the properties as secular properties, then that fact can only show that Ex. 1 was never intended to be an effective document. The words "arpan karilam" in Ex. 1 can have only one meaning namely, that the dedication was made by the lady in her lifetime when she executed the document Ex. 1. I have referred to all these above and I do not wish to say anything more.

One of the real tests of a valid will is, whether it is revocable. If a document is such that it cannot be revoked, it cannot be called a will in the real sense of the term. The question, therefore, is whether Ex. 1 could be revoked by the lady who is alleged to have executed it. In Gouri Kumari Dasee v. Ramanimoyi Dasee AIR 1923 Cal. 30 it has been held that the creator of a debottar trust is not entitled to make & change in the order of succession of shebaits unless he made a reservation to that effect in. the deed of gift. The lady Jagat Tara Davi, the execuant of Ex. 1, made no such reservation in the alleged will. She clearly stated in the document which purports to be a will that on her death her husband will be the shebait and that when her husband dies the present appellant will be the next shebait. After having laid down the line of succession it was not open to her to, effect any change even if she wanted to do so. In this view of the matter also, the document in question cannot be construed to be a will.

The learned Additional District Judge did not take any evidence in this case and it has been argued that this procedure was wrong. As according to the objectors the document pro-pounded by the appellant is not a will, the learned lower Court considered this question and dismissed the case upon his rinding that the document cannot be called a will. In ground No. 5 of the grounds of appeal it is stated, as already indicated, that the appellant had quite a mass of documentary evidence to show that Jagat Tara Debi continued to deal with her properties as if she was their sole owner. It will be taking upon rather an inconsistent position to say with one breatb that in respect of Ex. 1 the ownership of the properties remained with Jagat Tara Debi and at the next breath to claim that by Ex. 1 Jagat Tara Debi disposed of the she-baity right. The clear recital in the document, Ex. 1, does not warrant a conclusion that the endowment was to come into being after the death of Jagat Tara Debi. In the circumstances of the case I am of opinion that the learned lower Court acted rightly in deciding issue 1 regarding the real character of the document Ex. 1, before he took up any other issue. After the trial of issue 1, it became altogether unnecessary to consider the other issues. In my opinion, this appeal is without any merit, and it must be dismissed, but in the circumstances of the case without any costs.

I agree to the order proposed by my learned brother. In my opinion the Additional District Judge was right in holding that the document in question is not a will. Dr. Mitter relied on the latter portion of the document as comprising a will relating to the sebaiti interest and cited several cases in which it was held that the same document was, aa regards one portion of it, an instrument of a non-testamentary nature and, as regards another portion, a will. These were all cases in which it was possible to separate the document into two distinct parts. This is not the case here. Reading the document as a whole, one has to accept the construction placed on it by my learned brother, namely that in the first portion the lady dedicates the property to the deity, and in the second she as the founder of the trust lays down the rule of succession to the sebaitship. I do not find it possible to read the second part asa will executed by a aebait relating to the sebaitship

It has been urged that the Additional District Judge erred in disposing of the case on a preliminary issue. The general principle is that a case should not be tried piecemeal, but this is subject to the mandatory provisions of Order 14, Rule 2, Civil P.C.: vide Janki Das v. Kalu Ram AIR 1936 Pat. 250 In this connexion it is contended that for the decision of the preliminary point it was necessary to consider extrinsic evidence to show what was he intention of Jagat Tara Devi and that the production of such evidence was prevented by the procedure adopted by the Judge. The question of extrinsic evidence to prove intention only arises if there is any ambiguity in the document which is under construction. Here the only portion of the document about which there can be any ambiguity is the expression "arpan karilam" in the first portion of it. During the argument it was suggested at one stage that these words might mean "I have created" and might refer to a dedication previously made that very day, either, orally or by another document, so that the present document relates entirely to the sebaiti interest. The only other possible interpretation is that put on the words by my learned brother, that they mean "I dedicate" i.e. by the present document, an interpretation with which I agree. It is clear from the appellant''s petition for probate, however, that he treated the property as still belonging to Jagat Tara Debi at the time of her death,-a position which he again takes up in paras. 4 and 5 of the memorandum of appeal in this Court, in which he says that the document is clear that "the dedication was to come into effect on the death of the testatrix" and mentions that he has filed as arge number of documents

to show that Jagat Tara Dev was dealing with the property as secular property from after the execution of the document till her death.

His case, therefore, was that the dedication was made by the document now in question, and that that dedication became operative on the death of the lady.

In these circumstances it cannot be urged that the appellant has been prejudiced by not being given an opportunity to adduce evidence.