P.C.Mallick, J. - (1.) This is a proceeding in which Banku Behari Das seeks to propound the Will of his father Manmatha Nath Das. The Will is dated August 20, 1960. The Will is being contested by Kasliinath and Hem Chandra. They have filed caveats and affidavits in support thereof. In the affidavits the only point of substance raised is that the instrument sought to be propounded is not a testamentary instrument and as such no probate can be granted to such an instrument. Mr. B.N. Dutta Ray learned counsel appearing for the caveators did not raise any other dispute. It is not disputed that the instrument was executed and attested according to law, as if it is a testamentary instrument.
(2.) The provisions of the Will are simple. The instrument has been described as a testamentary instrument by Manmatha Nath Das and has been executed and attested by two attesting witnesses as such. The only son of the executant has been appointed executor. The disposition in the Will is in the following terms : "I am at present of the trustees to the debutter estate of Sm. Tripura Sundari Dasi deceased, for the deities Sri Sri Iswar Radha Ballau Jew at Brindaban, District Mathura, Uttar Pradesh, and I hereby appoint my said eldest son Banku Behari Das as the trustee and sebait in my place and stead, of the said debutter estate and after my death he will act as such trustee and sebait along with the other trustees and shall hold the debutter trust estate and shall do all acts and things in carrying out the objects of the trust as such trustee." It is contended that it is nothing more than a deed of appointment of a sebait and trustee of the deity Sri Sri Radha Ballav Jew at Brindaban and does not purport to dispose of any property of Manmatha Nath Das. Manmatha, therefore, must be held to have died intestate and the instrument propounded is merely a deed of appointment and no probate can be granted to such an instrument.
(3.) Before I consider the interesting point of law canvassed in this proceeding, I should note that in the petition it is stated that the total assets likely to come into the hands of the executor would not exceed Rs. 2075/-. In the affidavit of assets the sum or Rs. 2059-62 nP. is stated to be the "Provident Fund" money and salary due to the deceased. Another asset is the claim of Rs. 110/- due and payable to the estate of Manmatha by the estate of one Sanat Chandra Das. The third asset is the sum of Rs. 5/- in cash.;