1. This is an administration suit to administer the estate of one Dhanjisha Edalji Anklesaria who died on April 27, 1944., leaving him surviving his three sons, plaintiffs Nos. 1 and 2 and defendant No. 4, and four daughters, plaintiff No. 3 and defendants Nos. 2, 5 and 6. His eldest son Maneksha predeccased him. Maneksha left his will and plaintiff No. 1 and defendants Nos. 1, 7 and 8 are the executors of that will.
2. The deccased left a will and testament bearing the date May 8, 1934. He also left a supplemental will, dated April 25, 1944, and he also left a draft trust deed which did not bear any date. The will of May 8, 1934, the supplemental will of April 25, 1944, and the undated draft trust deed were all admitted to probate.
3. This suit is filed because several difficulties have arisen as to the construction of these various testamentary documents and also because the plaintiffs allege that there was difficulty in the administration of the estate owing to the unhelpful attitude of defendant No. 3. Whether that allegation is correct or not, it seems from the plaint that the executors found it difficult to cooperate in order to administer the estate of the deccased.
4. The various questions that arise for my consideration have been formulated in the form of issues, and I shall proceed to answer these questions.
5. The first question is : whether the will dated April 25, 1944, left by the testator is supplemental to the will dated May 8, 1934? It is undoubtedly so and both the wills have to be read as one testamentary document and the provisions of both these documents have to be reconciled with each other.
6. The second question is of very great importance and that is, whether the with drawal of the first will by the testator from the Sub-Registry renders the charitable bequests contained therein void? Now the facts relating to this question are that the plaintiffs allege that, according to their information and belief, the first will was deposited with the Registrar of Ahmedabad within six months of its execution and re Malned in the custody of the Sub Registrar for several years till some time in the year 1942 when it was withdrawn by the deccased and kept by him amongst his other papers till the date of his death. Under Section 118 of the Indian Succession Act, if a testator has a nephew or niece or any nearer relative, he cannot make a charitable bequest unless he satisfies two conditions, and those two conditions are: first that he must execute his will not less than twelve months before his death and second that he should deposit it within six months from its execution in some place provided by law for the safe custody of the wills of living persons. Now there is no doubt in this case that the testator left sons and daughters and, therefore, he has got to satisfy the conditions laid down by Section 118 of the Indian Succession Act. The first will was executed more than twelve months before his death and the only question is whether the second condition under Section 118 was complied with or not. The Advocate General on behalf of charity contends that inasmuch as the testator left the will with the Registrar at Ahmedabad for some period and then withdrew it, it constitutes the deposit contemplated by Section 118; the fact that the will was withdrawn and did not remain deposited at the date of his death does not in any way militate against the compliance with the condition laid down under Section 118. In order to appreciate this contention of the Advocate General, I have got to consider what meaning to give to the expression 'deposited' used by the legislature in Section 118; and in order properly to construe that expression, it is necessary to consider the relevant provisions of the Indian Registration Act, because the section itself speaks of the will being deposited in some place provided by law for the safe custody of the wills of living persons. Now the law that provides for the safe custody of the wills of living persons is the Indian Registration Act and the provisions with regard to the custody of the wills of living persons are contained in Sections 42, 43, 44 and 45 of the Act. Section 42 provides that any testator may deposit, either personally or by his duly authorized agent, his will with the Registrar in a sealed cover super-scribed with the name of the testator and that of his agent (if any) and with a statement of the nature of the document. Section 43, Sub-section (1), provides that the Registrar on being satisfied that the person presenting the same for deposit is the testator or his agent, shall transcribe in his Register-book No. 5 the superscription contained in the sealed cover and also fill in certain particulars mentioned in that section; Sub-section (2) of that section then provides that the Registrar shall then place and retain the sealed cover in his fire-proof box. Section 44 provides for the withdrawal of the sealed cover and authorizes the Registrar to return the sealed cover to the testator or his agent if satisfied that he is actually the testator or his agent; and Section 45 provides that when the testator dies an application is made to the Registrar to open the sealed cover and on the Registrar being satisfied of the death of the testator he shall, in the presence of the applicant, open the cover and, at the applicant's expense, cause the contents thereof to be copied into his Book No. 3; and after he has made such a copy, the Registrar shall redeposit the original will.
6. Now, in my opinion, the expression 'deposited' in Section 118 of the Indian Succession Act does not mean the mere physical act by the testator or his agent of handing over a sealed cover to the Registrar. The very expression 'deposited' has implicit in it a certain continuity. The document must continue to remain for a certain time, and what that certain time is to be determined by the context in which the expression 'deposited' is used. A thing cannot be called to be 'deposited' if it is handed over to another person and is immediately withdrawn because, if the Advocate General's contentions were sound, the condition of the section would be complied with merely by the testator handing over a sealed cover with the necessary superscription and at the very next moment withdrawing it from the Registrar. That could not possibly be the meaning of the expression 'deposited.' Therefore, as I was saying, a certain continuity is necessary, and looking to the provisions of the Registration Act, it seems to me that the continuity required for a deposit of a will under Section 118 of the Indian Succession Act is continuity up to the death of the testator when the sealed cover is opened by the Registrar.
7. There is a further argument which strengthens me in coming to this conclusion and putting this construction upon the expression 'deposited.' Whether in fact the will in question is or is not deposited with the Registrar can never be effectually determined unless the sealed cover is left with the Registrar and opened after the death of the testator. If the sealed cover is withdrawn and does not remain with the Registrar, proof would indeed be very difficult if not impossible as to what were the contents of a sealed cover which was deposited with the Registrar. In this very case we have the averment in the plaint, to which I have referred, that the testator deposited the will of May 8, 1934, with the Sub-Registrar within six months of its execution. This averment is made merely on information and belief. But if the averment were to be put to the strict proof, it would be almost impossible to prove that the testator deposited this very will with the Registrar. Although the Registrar's books would show that a sealed cover bearing a superscription were left with him, there would be nothing to show that that sealed cover contained this very identical document which has been admitted to probate. Mr. J. A. Shah, for the Advocate General, contends that in giving this construction to the expression 'deposited', I am adding to the section words which the legislature did not think fit to incorporate in the section. What is argued is that I am reading the section as if it ran 'and kept deposited within six months from its execution.' I agree with Mr. Shah that the mere fact that a certain construction may lead to difficulties would not justify the Court to add words to the section to get over the difficulties. But I am not introducing any new words into the section. I am only trying to give a construction to the expression 'deposited' without the addition of any words which, in my opinion, is the proper construction looking to the language of Section 118 of the Indian Succession Act itself and also looking to the provisions of the Registration Act. I think it is open to the Court, when two possible constructions are open for an expression used by the legislature, to lean towards that construction which would lead to the carrying out of the object of the legislature rather than to a construction which would lead to insuperable difficulties and anomalies.
8. I am glad to find that the view I have just expressed has also Been taken by the Rangoon High Court in Mariano v. Rt. Rev. F. Provost  Ran. 410 . A bench of that High Court consisting of Roberts C. J. and Dunkley J. construed the section in the same way as I have just done. [The rest of the judgment is not material to this report].