Reuben, J.:— This is an appeal filed by four sons of Hazari Missir (deceased) against an order of the Additional District Judge of Gaya, dismissing their application for probate of a document put forward by them as being the will of their deceased uncles, Sarwan and Balgobind.
2. The application was opposed by respondent Sukhdeo Missir who is the son of Padarath Missir another brother of Hazari Missir. The document in question purports to make a disposition of the property of Sarwan and Balgobind Missir in favour of six sons of Hazari. Sarwan and Balgobind died some time in the year 1928. The present application was filed on 13-9-1940, by the four applicants, the other two sons of Hazari Missir having died in the mean time. The application was opposed on the grounds, firstly, that the document is not a genuine document executed by Sarwan and Balgobind Missir, secondly, that it is not a will at all but is a deed of partition, thirdly, that, at the time of the execution of the document, they were not in a sound disposing state of mind, and, fourthly, that, at the time of the execution of the alleged will, they were joint with Padarath Missir and as such had no right to execute the will. In an application for probate, the Court has no jurisdiction to enquire into the nature of the rights of the testator in the property covered by the will and, so, the last point was rightly ignored by the learned Additional District Judge, and he has considered only whether the document was in fact executed by the alleged testators, whether, at the time of the execution of the document, they were in a sound disposing state of mind and whether the applicants are entitled to probate. He decided the first two points in favour of the applicants but, on the third point, he has-decided against them, holding that the document in question is not a will at all. Hence, the present appeal.
3. The alleged will (Ex. 1) is a very unusual kind of document. It is styled by the executants as a deed of partition and has been registered as such, and the first point which arises is whether, supposing it to be a will, it has been duly executed by the testators and whether they were in a sound disposing state of mind. As regards both these points, there is very little direct evidence, because both the scribe and the three attesting witnesses are dead. The only acceptable evidence on the point is the evidence of Rajeshwar Missir (applicant 1), a man aged about fifty years—a witness whose presence it would be natural to expect at the time of the execution of this document. He deposes that he was present at the time of the execution and attestation of the will. Balgobind Missir signed the will for himself and, at the request of Sarwan, on behalf of Sarwan. The attesting witnesses then signed the will in the presence of the testators. Another witness, Nageshwar, was examined on the point. He gave his age as fifty years, but in view of the Court's estimate of his age as twenty-eight years it is not likely he can give any acceptable evidence on the point. Further, from his cross-examination, it appears that he is illiterate and unable to identify the document. On the other side, Sukhdeo Missir examined himself and deposed that his father, Padarath, did not separate from his three brothers, and that the applicants' case that he did is false. He further deposes that Balgobind and Sarwan were addicted to ganja and bhang and bad no capacity to understand business. Similar evidence was given by one other witness, Lachmi Singh, who, however, confined himself to saying that Sarwan and Balgobind were addicted to ganja and bhang but did not go so far as to say that they were unable to understand ordinary business transactions. The evidence regarding the jointness or separation of the brothers is really irrelevant in this proceeding, and that regarding the state of mind of these two persons was rightly regarded by the Additional District Judge as unsatisfactory. In this state of the evidence, while not rejecting the evidence of Nageshar Missir, the Additional District Judge relied on the presumption of due-execution and attestation which, under the provisions of Section 90 of the Evidence Act, he was entitled to draw. The document is more than thirty years old. It is a registered document and it comes from proper custody. The presumption was, therefore, justified. The section provides that, where these conditions are satisfied, the Court may presume that the signature and every other part of such document, which purports to be in the handwriting of any particular person, is in that person's handwriting, and, in the case of a document executed or attested, that it was duly executed and attested by the persons by whom it purports to be executed and attested. Under this section therefore, it could legitimately be presumed that the document was a genuine one executed by Sarwan and Balgobind by affixing their signature thereto. The only doubt that could arise is whether, in view of the fact that at the time of the execution of the document they believed themselves to be executing a deed of partition, it can be presumed that the document was attested in the way that the law requires a will to be attested. Under Section 63 of the Succession Act, in addition to the signature or mark of the testator, it is necessary that the will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the will or has seen some other persons sign the will in the presence and by the direction of the testator, or has received from the testator a personal acknowledgment of his signature or mark, or of the signature of such other person and each of the witnesses shall sign the will in the presence of the testator. Have these requirements been complied with in the present case? On an examination of the document, we find that there were three attesting witnesses. So far as the number of the witnesses goes, therefore, the requirements of this section are satisfied. Each endorsement is stated to be “on the admission of the executants.” This satisfies another requirement of the section. As regards the affixing of the signature of the attesting witnesses in the presence of the testators, there is the fact that this is the ordinary mode of attesting a document and is the mode by which attestation is defined in Section 3 of the Transfer of Property Act. If, therefore, under Section 90 of the Evidence Act, the presumption of due execution is drawn, it necessarily amounts to a finding that the executing (attesting?) witnesses signed in the presence of the testators. This conclusion is corroborated by the evidence of Rajeshwar Missir and the indications of the document itself as appearing from the position of the signatures of the testators and of the attesting witnesses and the nature of the pen and ink used by them. I would, therefore, take the last requirement of Section 63 of the Succession Act, to be satisfied and would hold, that, supposing the document to be a will, it has been properly executed and decide as such. The next point is whether, in fact, this is a will, and this is the point on which the main contention in the appeal has been rested. The first unusual feature about the document is that it is executed by two persons. A joint will, however, is not unknown to the law L.R (1898) P. 71 is a case in which a joint will was made by a husband and wife. It was divisible into three parts. The first part was the will of the husband in case the wife should survive him, the second was the will of the wife in case her husband survived her, and the third of both of them to come into operation when they were both dead. The Court granted probate of so much of the instrument as became operative upon the death of the wife. In L.R (1872) 4 P.C 236,2 the Court construed a mutual will made by a husband and wife as separable, the disposition of each spouse being treated as applicable to his or her share of the joint property, and held that each spouse was at liberty to revoke his or her part of the will during the co-testator's lifetime, with or without communication with the co-testator, or after the co-testator's death. Nearer home, probate was allowed of a joint will by a husband and wife by the Bombay High Court in 45 Bom. 987.3
4. “Will” has been defined in Section 2 of the Succession Act to mean the legal declaration of the intention of the testator with respect to his property which he desires to be carried into effect after his death. The manner in which, in ordinary cases, that will may be expressed has been prescribed in S. 63 to which I have already referred, and, under S. 59, a will may be made by every person of sound mind not being a minor. Here, there is no suggestion that, at the time of the making of the will, Sarwan and Balgobind were minors. On the contrary, it is the case of both parties that they were old men. Further, under S. 62, a will is liable to be revoked or altered by the maker of it at any time while he retains his capacity to dispose of his property by will. These are the two characteristics of a will, namely, it must be intended to come into effect after the death of the testator, and, secondly it must be revocable. That, at the time of the execution of the document, the executants were unaware that it was a will and that they thought that it was a document of some kind is irrelevant; it is the intention of the executants, as expressed in the document, which decides the question. Thus, in 10 Cal. 7924 a tamliknama executed for the purpose of effecting a transfer of property was held by their Lordships of the Judicial Committee to be a will. The case is of special interest because the argument that the document was not a will relied very strongly upon the use of the word “assign” and upon the reservation of a life interest to the donor. In dealing with this contention, their Lordships said:
“No doubt both those circumstances tend towards the conclusion to which Mr. Woodroffe wished to lead their Lordships, but they are by no means conclusive. If they had been the words of an English conveyancer preparing an English instrument, they would have afforded a very strong argument; but the instrument was prepared by Lal Sundar, and we must not construe with too great nicety, or assign too much weight to the exact words that he uses for a transfer of property, as if he were accurately weighing the difference between a testamentary instrument and one operating inter vivos. We must remember that wills are comparatively new in any part of India, and are of more recent introduction in Oudh in respect to this class of property. So with respect to the reservation of a life interest. The will being not a very familiar instrument to the people who prepare it or who sign it, the testator often does express a great anxiety that he shall not be considered to have parted with anything in his lifetime, and their Lordships have seen here instruments which most unquestionably were wills, and intended to operate as such, in which nevertheless there have been expressions upon the face of them intimating that the testator intends to remain the owner of his property until he dies.”
5. To state one more instance, in A.I.R 1924 Mad. 605,5 a document described as a deed of gift was held to be a will. The relevant portions of the document were as follows:
“You shall yourself after my lifetime use and enjoy the two rooms built on the ground of the house Municipal No. 11 ….. I shall myself enjoy the rent in respect of those two rooms as long as I may be alive. You shall yourself use and enjoy after my lifetime that rent and that ground and the two rooms from son to grandson and be on in succession with power to gift, mortgage, exchange and sale. No one has any right to or interest in those rooms. To this effect is the gift deed document executed and given in respect of the aforesaid two rooms and their grounds.”
6. Here, again, we find specific provision made preserving the rights of the donor during his lifetime.
7. In this case the alleged will is in the following terms:
“Padarath Missir is own brother of us the executants. For the last 30 years our own brother, the said Padarath Missir, has been separate in mess. We the declarants and Hazari Missir, the three brothers are joint. After dividing the entire self-acquired and ancestral properties, movable and immovable residential house etc., into four parts Padarath Missir, our own brother, took his own share and separated and we the executants and Hazari Missir who is our own brother have upto this time been in joint possession of the remaining properties and have remained joint in mess, business and village and Court affairs. Now we, the executants, have become 50-60 years old. No son or daughter i.e, male or female child was born to us the executants or is alive. Our own brother Hazari Missir has got only (sic) six sons whose names are Rajeshwar Missir, Ramnandan Missir, Sheodhar Missir, Dndhsagar Missir, Rajdeo Missir and Laldeo Missir who are our own nephews. Up till now the entire properties moveble or immovable of us the three brothers are joint and all the three brothers are living jointly. No other person has got any right or claim thereto. Hence we the executants have in accordance with the advice of our well-wishers thought it advisable and proper to divide all the existing properties, movable or immovable among all the sons viz. Rajeshwar Missir and others the names of which six sons have been mentioned above and who are own nephews and the sons of Hazari Missir our own brother, id equal shares, specified below. As they are already entitled and as there is no other heirs of us the executants, except them, the above division is better by all means; therefore we the executants, have in a sound state of body and mind in enjoyment of proper senses without the threat and persuasion of any one etc. of our own accord and free will, divided the whole and entire 10 bighas, 18½ kathas of jagir lands lying in the mauzas given below as per boundaries given below and the residential house, which are our exclusive share, and articles which have been in our possession and occupation, together with all the rights which are enjoyed by us the executants, without deduction and exception of anything, in equal shares among Rajeshwar Missir, Barunandan Missir, Sheodhar Missir, Dudhsagar Missir, Rajdeo Missir and Laldeo Missir sons of Hazari Missir, residents of mauzah Naugarh Mahwari, perganah Siris, thana and Sub Registry office Aurangabad, district Gaya, by occupation jagirdars and cultivators on the following conditions, After the death of us, the executants, and of our wives they will remain in possession and occupation of the properties allotted to them by partition under this deed of partition in equal shares, and will appropriate the produce thereof and they have been treated as absolute owners of their respective shares. We the executants shall during our lifetime and during the life time of our wives remain in possession and occupation of the partitioned properties in the same manner as at present. We the executants shall during our or our wives' lifetime, have in case of necessity right to execute a deed of sale etc. that is to say we shall have all kinds of power as we possess at present. No party will interfere in it. In order to avoid future dispute and to maintain peace and good will, we have under this deed of partition partitioned in equal shares the properties mentioned below among the persons named above. The value of the properties partitioned is Rs. 600. We have therefore executed this deed of partition which may be of use when required.”
8. The document is very badly drafted and the meaning is obscure, but it is clear that what it expresses is the intention of the executants as to what should happen to their property after the death of themselves and their wives. The postponement of the operation of the document till after the death of the wives does not prevent the document from being a will: vide 36 Cal. 149.6
9. In the argument in support of the contention that this is not a will, stress was laid on three points, firstly, the assertion contained in the document itself that the property has been divided between the sons, secondly, the provisions in it regarding the rights of the executants and their wives during their lifetime, and, thirdly, it is contended that the document is an irrevocable one and, therefore, cannot be a will. On a perusal of this document, we find that, although the executants speak of having divided the property and having treated their nephews as absolute owners of their respective shares, no actual division of the property was made. The property itself is set out at the end of the document, and there is no indication whatever of any division of it into shares, or of the allotment of any portion of that property to one of the nephews in exclusion of the rest. What the executants are speaking of throughout the document is undivided shares and not shares divided by metes and bounds, and they make it clear that this division into shares will come into effect after they die by saying:
“After the death of us the executants and of our wives they will remain in possession and occupation of the properties allotted to them by partition under this deed of partition in equal shares, and will appropriate the produce thereof.”
10. It is in this sense that the nephews are “treated as absolute owners of their respective shares,” and the executants are accordingly to preserve their rights in the property, by the provision which forms the basis of the second contention. The contention is on a par with that of 10 Cal. 792 based on the use of the word “assign.” In this connection, reference has been made to 25 C.W.N 511.7 In that case, however, the document in question was held not to be a will because there was nothing in it in the nature of a testamentary devise. It merely expressed the intention of the executant to adopt the plaintiff and gave certain directions regarding the way in which he was to conduct himself in his capacity as the adopted son. There were certain directions in the document regarding the property of the executant, but they were all consistent with being a mere expression of his desire as to how the property should be applied when the plaintiff, as the adopted son, succeed, ed to the executant. The document was on the face of it intended to take effect at once and was, therefore, not a will. The document, which the Court was called on to interpret in 33 Mad. 304,8 was somewhat different from that before us. It was couched in the future tense instead of in the past. Their Lordships cited the observation of Kekewich, J. in (1841) 64 L.T 489 at p. 51, that “There is no magic in the use of the future tense which is frequently employed to express a present contract,” and, on a consideration of the whole document, held that there were clear provisions in it having an immediate operation. They also held that the deed was irrevocable and, therefore, could not be will.
11. The provision preserving the rights of the executants and their wives during their lifetime has already been considered by me above, and I have drawn attention to the remarks of the Judicial Committee in 10 Cal. 792 regarding provisions of this kind occurring in wills in India. All that the provision in the deed amounts to is that Sarawan and Balgobind reserved their rights in the property. They did not, by this deed, purport to create new rights.
12. There is equally no substance in the third point, namely, that of the irrevocable nature of the deed. The deed is a unilateral one, in which no consideration passed from the beneficiaries to the persons executing it. It is a mere expression of the wishes of these persons regarding what is to happen to their property when they die. The purpose for which they executed the document was in order to avoid, family disputes after their death. There is nothing in the document, however, by which they purport to bind themselves to make an alteration in their disposition of the property. This being so, there is no reason why the document should be regarded as irrevocable. 8 C.W.N 61410 to which reference was made, was a case of family arrangement arrived at in order to put an end to disputes. Their Lordships pointed out that, if the document was a will, it could have but little effect in settling disputes, as it might be revoked the next day. This was apparently realised by the persons executing the deed for, in para 14 of the document, they made a clear provision to the effect that it would be irrevocable. In coming to his finding that the document is not a will, the Additional District Judge has also relied upon the statement of Rajeshwar Missir in his cross-examination that he got possession over the properties of Sarwan and Balgobind during their lifetime. This statement is in conflict with an assertion, a few lines earlier, that he never got possession of the properties of Sarwan and Balgobind “during his lifetime.” No attempt was made by either party or by the Court to clear up the discrepancy. I do not think the statement of much help in interpreting the document for there is nothing to connect the possession said to have been obtained by the witness with the execution of this document. According to the case of the applicants, Sarwan and Balgobind were living jointly with them. They were old men, and it is not unlikely that the property was being looked after by their nephews. What the witness says, therefore, does not necessarily mean that possession was handed over to the nephews in pursuance of the document, that is, that effect was given to the document as a deed which operated inter vivos.
13. On all the above grounds, I differ from the learned Additional District Judge and hold that the document executed by Sarwan and Balgobind is a will. The applicants have asked-for probate, but, not being the executors, they cannot get it. They can, however, get letters of administration with the will annexed under Section 234 of the Succession Act. Such a grant of letters of administration has been opposed before us on the ground that the grant is discretionary and should not be made because, according to the story of the applicants, they are in possession of the property and, therefore, there is nothing to administer. In view of the provisions of S. 298, read with Section 57 of the Succession Act, the contention that the grant of administration is discretionary in the present case is open to question. It is not necessary to go into the point, however, because it is admitted that, in a partition suit between the parties, the applicants were prevented from making use of this document as a piece of evidence on the ground that, being a will, it could not be admitted in evidence without probate. There is, therefore, some reasonable ground on which the applicants are entitled to ask for letters of administration.
14. In the result, I would allow this appeal with costs. The order of the Additional District Judge will be set aside. The applicants will get letters of administration with the will annexed conditional on their executing an administration bond under Section 291 of the Succession Act, for Rs. 400, with one surety for the like sum. They will also recover the costs incurred by them in the proceedings before the lower Court.
Shearer, J.:— I agree to the order proposed. I was at one time inclined to take the view that there was no real animus testandi on the part of the executants of this document and that it had been brought into existence for some collateral purpose, as, for instance, to prevent the other brother, Padarath Missir, or his sons from laying claim to any part of the property of the executants and their brother Hazari Missir. In that view of the matter it could not, of course, be regarded as a will: (1864) 33 L.J.P 29.11 The document contains a recital that the executants and Hazari Missir were joint. If Hazari Missir had also joined in its execution, it could perhaps have been said that as between all three executants it operated as a deed of partition and that, so far as two of them were concerned, it operated also as a will. The difficulty, however, in which I find myself was not raised at the trial nor was it raised in the argument before us. On further consideration I am not satisfied that it is so manifestly a real one that letters of administration should be refused. As my learned brother has pointed out, the ultimate effect of the document is not a matter which the Probate Court has to decide.
V.R
15. Appeal allowed.