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Swatantranandji Vs. Lunidaram Jangaldas - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtMumbai
Decided On
Case NumberTestamentary Suit No. 12 of 1935
Judge
Reported inAIR1937Bom397; (1937)39BOMLR490
AppellantSwatantranandji
RespondentLunidaram Jangaldas
Excerpt:
.....he was the executor according to the tenor of the later will, and that as such he would have the right to apply for probate of the will.; a caveat can be entered by any person having or asserting an interst in the esate of a deceased person either by inheritance or otherwise. the test for determining gernerally whether a person has sufficiet interest to sustain a caveat is this : will the grant of probate to the petitioner diplace any right to which the caveator is otherwise entitled? if so, he has an interest; if nothe has none. - - in his second affidavit filed on december 18, in continuation of the first, he alleges that the first will and the signature of the testatrix as well as the signatures of the attesting witnesses appearing on are all forgeries. the word 'power',as used,..........according to the tenor.3. the question still remains whether the defendant has sufficient interest estate estate of the deceased for him to sustain his caveat. a caveat can be entered by any person having or asserting an interest in the estate of a deceased person, and it has been held that he must show that he has that interest by inheritance or otherwise : see pirojshah bikhaji v. pestonji merwmji i.l.r. (1910) bom. 459 : 12 bom. l.r. 366 title adverse to that of the testator or to his estate or any portion thereof is not sufficient to sustain the interest. i think that the test is generally this, will the grant of probate to the petitioner displace any right to which the caveat or is otherwise entitled? if so, he has an interest; if not, he has none. at best the defendant can argue,.....
Judgment:

B.J. Wadia, J.

1. This is a petition for the probate of two wills of Mataji Moxabai Guru Muktanandji who died on April 13, 1933. The first will is dated January 11, 1923, and was executed at Saspur (also called ' Saraspur'), Ahmedabad. The second will is dated April 3, 1933, and was executed at Mulund in the Thana District. The petitioner claims to be her disciple, and has propounded the two wills as executor according to the tenor. Defendant has put in a caveat and has filed two affidavits in support. In his first affidavit dated July 3, 1935, he contends that on a proper construction of Clause 4 of the later will he has been appointed executor, and the petitioner is not an executor according to the tenor. In his second affidavit filed on December 18, in continuation of the first, he alleges that the first will and the signature of the testatrix as well as the signatures of the attesting witnesses appearing on are all forgeries.

2. Reading the two wills together the petitioner appears to be executor according to the tenor, for, though not expressly nominated as executor, he is a person who has been directed by the wills to perform one or more of the duties in the functions of an executor, and is, therefore, an executor appointed by necessary implication under Section 222 of the Indian Succession Act. There are word in the will in reference to the petitioner which on a reasonable construction point to the rights and duties of an executor. I have, however, advisedly stated at present that plaintiff ' appears' to be the executor according to the tenor, for the first will has been challenged as a forgery. Defendant, on the other hand, relies on Clause 4 of the will which in the original Gujarati runs without a break. The clause is translated as follows :-

As to the ' power' which I have, I give the same to Lunidaram Jangaldas. [i.e. the defendant] and one whom he appoints shall carry on 'vahivat' of the property.

The difficulty of construing this clause has arisen from the use of the Gujarati word ' 1' which is merely the way in which the English word ' power' is. sometimes pronounced. The word ' power', as used, does refer in the minds of persons who are not well versed in the English language to the probate of a will or letters of administration to the estate of a deceased person. But even as such, the words actually used do not clearly indicate the appointment of the defendant as an executor. The testatrix speaks of the ' power' which she has over her property, referring to the Mulund property mentioned in the first clause, which means her right over that property as owner and to manage the same. If she gives that right to the defendant, it cannot strictly be said that she has appointed him the executor of her will. I do not agree with counsel for the defendant that the question whether defendant is or is not an executor of the will depends on evidence. It is really a question of construction of Clause 4 read along with the rest of the will. The words used in Clause 4, considered together, do not clearly indicate that the testatrix intended to appoint the defendant her executor. Moreover, the general power which, it is contended, the clause gives to the defendant is curtailed by certain limited powers which are mentioned in the postscript and which are given to the petitioner. Further, according to Clause 8 the will which was made in Ahmedabad, and which the petitioner says is the first will he has propounded, is confirmed by the testatrix. I cannot, therefore, hold that on a proper construction of Clause 4, read along with the remaining clauses and the postscript, the defendant has been nominated by the testatrix as the executor of her will. He is given the right to manage the Mulund property or to appoint a manager. That does not make him the executor, and it is doubtful whether it makes him even an executor according to the tenor.

3. The question still remains whether the defendant has sufficient interest estate estate of the deceased for him to sustain his caveat. A caveat can be entered by any person having or asserting an interest in the estate of a deceased person, and it has been held that he must show that he has that interest by inheritance or otherwise : see Pirojshah Bikhaji v. Pestonji Merwmji I.L.R. (1910) Bom. 459 : 12 Bom. L.R. 366 title adverse to that of the testator or to his estate or any portion thereof is not sufficient to sustain the interest. I think that the test is generally this, will the grant of probate to the petitioner displace any right to which the caveat or is otherwise entitled? If so, he has an interest; if not, he has none. At best the defendant can argue, though the point is not taken by him in his affidavits, that he is the executor according to the tenor of the later will. If he succeeds in proving that the first will is a forgery, he may show that he is the executor according to the tenor of the later will, and as such he would have a right to apply for probate to the estate of the deceased. To that extent it can be argued that an important right belonging to him may be displaced by reason of the grant of probate to the petitioner. The point is not free from doubt; but I would still hold that the defendant has an interest in the estate which enables him to oppose the grant of probate of the two wills to the petitioner.


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