ISHWARDEO NARAIN SING Vs. KAMTH DEVI

JUDGEMENT

(1.) One Jagdishwar Prasad Singh who was the son of Sripat Narain Singh by his first wife died on the 18th August 1934 leaving a minor daughter Srimati Kamta Devi. His wife had predeceased him but Jagdishwar Prasad Singh did not marry a second wife. It is alleged that Jagdishwar Prasad Singh had on the 18th December 1930 made his last will and testament. This will purports to have been attested by two witnesses, namely, one Sahdeo Singh, an Advocate practising at Ghazipur, and one Rameshwar Lal, Since deceased, who was an Honorary, Magistrate of Ghazipur. By this will the testator appointed one of his step-brothers, namely Ishwardeo Narain Singh, as the executor. By the will he directed that the entire fixed rate tenancy in village Billahri should be sold and the sale proceeds utilized towards the expenses relation to the marriage of his daughter and that until the property was sold the income thereof should be accumulated and should be utilised towards the expenses relating to the maintenance and marriage of the daughter. He further directed that after his death a grove should be planted in certain lands situate in village Kundesar and a temple should be constructed in the grove and an idol of Shri Thakurji should be installed therein and all the Zamindari rights together with the grove and the 'katcha' properties and the Zamindari share in certain villages mentioned therein should be dedicated to Thakurji and the income therefrom should be utilised towards the expenses relating to the Rag. Bhog, Puja and construction and repairs of the Thakur Bari, etc. He appointed his stepbrother Ishwardeo Narain Singh as the trustee and manager of the Thakur Bari and the property dedicated to Thakurji. On the 29th October 1934 Ishwardeo Narain Singh presented a petition to the District Judge, Ghazipur, for the grant of probate to him. At the foot of that petition, Rameshwar Lal, one of the attesting witnesses, declared that he was present and saw the testator affix his signature thereto. The estate was valued at Rs. 3,000. An objection was put in on behalf of Srimati Kamta Devi, the daughter of the testator. At the trial, amongst others, evidence was given by the attesting witness Sahdeo Singh as to the due execution of the will and the testamentary capacity of the testator. The other attesting witness Rameshwar Lal was also called as a witness. After examination-in-chief his cross-examination began but before the cross-examination was complete that witness died and consequently his evidence could not be used as evidence in the case. The trial Court was satisfied that the will had been duly executed and that the testator had a sound disposing mind. He, however, found that the disposition contained in the will in favour of Thakurji was void for uncertainty and relying on a decision in-'Phundan Lal vs. Arya Prithi Nidhi Sabha', 33 All 793(A), the learned District Judge held that the will was not expressive of any definite intention and was, therefore not a will as defined in Section 2(h) of the Indian Succession Act. In view of this finding the leaned District Judge rejected the application for probate. An appeal was taken to the High Court. The High Court held that the due execution of the will had not been proved. The High Court also held the view that the will was void for uncertainty and on both of these grounds the High Court affirmed the Judgment of the trial Court and dismissed the appeal. The petitioner applied to the High Court for leave to appeal to the Privy Council but such application was dismissed. The Petitioner thereafter applied to the Privy Council and obtained special leave to appeal. The appeal has since then been transferred to this Court and has now come up for hearing.

(2.) The dismissal of the application for probate on the ground that the disposition in favour of Thakurji is void for uncertainty can on no principle be supported and indeed learned counsel appearing for the respondent had not sought to do so. The Court of Probate is only concerned with the question as to whether the document put forward as the last will and testament of a deceased person was duly executed and attested in accordance with law and whether at the time of each execution the testator had sound disposing mind. The question whether a particular bequest is good or bad is not within the purview of the Probate Court. It is surprising how this elementary principle of law was overlooked by both the Courts below. However, as learned counsel appearing for the respondents has not sought to support this ground nothing further need be said on that.

(3.) As regards the other grounds, the trial Judge who had the attesting witness before him was satisfied that this evidence could not be brushed aside lightly and could be safely relied on as correct. The High Court, however, took the view that the due execution of the will had not been proved and that the evidence of the only attesting witness Sahdeo Singh could not be accepted in view of the surrounding circumstances. The first circumstance referred to was that the will was an unnatural will. The testator had no male issue but had only one minor daughter. His wife had predeceased him and he had not married a second wife. By his will he made provision for the marriage of his daughter out of certain specified part of his estate. The rest of his properties he gave to Thakurji. We see nothing unnatural or unofficious about this will.