1. This is an appeal from an order of the District Judge of Agra refusing to entertain an application for the revocation of a grant of probate. The facts are that a certain Mt. Sumitra Devi died on 6th March 1939 leaving a will which we shall set out:
My name is Sumitra Devi. I am a disciple of Chakrapani Maharaj of Brindaban. I regard him as God. I have got some money and ornaments. There is no certainty of human life. I wish that after my death my Guru Chakrapani Ji shall take all my properties and spend the same in good religious works which may be for my spiritual benefit. He may take the advice of my gurubhai Thacoor Phulan Singh and Krishna Behari Lal Sharma. My guru shall pay to my beti Draupadi five hundred rupees if she does sheba to me and remains obedient.
2. In form, therefore, that is a testamentary disposition disposing of her property, to put it in general terms, by bequeathing the whole of it to her guru, Chakrapani, for the purpose of religious and charitable works and in order to provide what is in the nature of a bequest of five hundred rupees to the named person Draupadi. In due course, Chakrapani applied to the District Judge of Agra by an application which he put in an alternative form asking first for a grant of probate and, in the alternative, for a grant of letters of administration with will annexed. The application itself was dated 18th April 1939 and, among other things, by Para. 1 it stated that the applicant had been 'appointed...as the sole executor' of the will. And by para. 9 of the same petition it was said 'the petitioner applies for probate of the said last will and testament of the deceased as executor therein named.' This application was filed in accordance with Section 276, Succession Act, which requires that the application shall state a number of things relating to the death and will of the testator and among others by Sub-section (1)(e) that 'when the application is for probate, that the petitioner is the executor named in the will.' On this application the District Judge directed a general citation in the form of an advertisement. There was at that stage no contest and he was perfectly entitled to take that course. No caveats were entered and accordingly in due course the District Judge made a grant of probate to the applicant Swami Chakrapani as the person who had been named in the will as the executor.
3. The next stage was that an application was filed later by the present applicant, Sardar Singh, who claimed to be the son of the brother of the husband of the testatrix. As such, he asked for two things - first for a finding that Swami Chakrapani to whom probate had been granted was never an executor and accordingly that probate never should have been granted to him, secondly, that, he himself, being a relative recognised by Hindu law, was a person who was entitled to a grant o letters of administration. This application, which is the one which is now in appeal before us, was heard by the District Judge on 24th August 1942 and he came to the conclusion that it ought to be dismissed. It is from that order of dismissal that this appeal has come to us. The learned Judge first discussed whether the applicant Sardar Singh was the relative which he described himself to be and whether he was as such entitled to make the application for revocation. He decided both these things in favour of the applicant. He then went on to consider whether the District Judge had in the first place omitted to order any citation which ought to have been issued and he came to the conclusion that there was no obligation on the District Judge when hearing the original application for probate to have issued any special citations. And he finally went on to consider whether the will was forged. The point, however, which he did not consider was the point whether Swami Chakrapani was ever a person who was an executor at all and, therefore, whether it was ever possible for a grant of probate to have been made to him.
4. Section 222, Succession Act, makes it quite clear that the only person to whom probate can be granted is an executor. And an executor is defined by Section 2(c) of the Act as 'a person to whom execution of the last will of a deceased person is, by the testator's appointment, confided.' It seems quite clear, therefore, that if Swami Chakrapani was not an executor, then there could properly have been no question of probate being granted to him. That, as we have said, was not expressly considered by the District Judge and it is not taken before us in appeal. We shall consider in a moment whether the respondent, Swami Chakrapani, really was an executor or not, but before we reach that point, the first answer given by the respondent is that this was never a case in which the application for revocation was possible. For that he relies on Section 263, Succession Act, which is the section defining when it is possible for an application for revocation or annulment of a grant to be made. The section says that a grant may be revoked or annulled for just cause and it goes on by certain explanations and illustrations to state what shall be deemed to be 'just cause.' We are prepared to accept it for the present purpose that the explanations and illustrations to Section 263 are exhaustive of what does constitute just cause; and it has to be confessed that there is nothing in express terms in it which covers a case of a person claiming as executor being given a grant of probate and it subsequently turning out that he never was an executor at all. But there is in it Expln. (c) which says:
(c) Just cause shall be deemed to exist where the grant was obtained by means of an untrue allegation of a fact essential in point of law to justify the grant, though such allegation was made in ignorance or inadvertently.
5. Now, when we read this with Section 276(1)(e), which requires one of the things to be stated in the application to be that the petitioner is the executor named in the will) we think that a statement made to the effect that a certain person is named as executor which turns out to be untrue - whether wilfully untrue or no - does constitute a case coming within Section 263, Expln. (c). It undoubtedly is one of the requirements of Section 276, that it shall be stated that the petitioner 'is the executor named in the will.' It is suggested that that is not a statement of fact at all but is a mere statement either of law or of mixed law and fact. In our view a statement whether a person occupies a particular status or not is a pure statement of fact. It may be that if that fact ever comes to be challenged, the determination of its truth or not may depend upon a question of law. But that is quite a different thing from saying that a simple statement as to holding a particular status is not in itself a statement of fact. If a person says that he is of a particular nationality, he states a fact. If his nationality is challenged, that is a question which may depend on both law and fact. But nevertheless his own statement remains a statement of fact. In the same way when the applicant in this case stated that he was the executor named in the will, in our view he stated a fact. Incidentally he stated that fact in a form which was certainly misleading. Although the legal effect of the will may have been to constitute him an executor, it certainly cannot be said that he was ever 'named' in the will as an executor. In the result, therefore, on this preliminary point we have come to the conclusion that the grant was obtained by means of a statement of fact essential in point of law to justify the grant and that accordingly it was open to the applicant to apply under Section 263 to have the grant revoked.
6. That disposes of the preliminary point and it remains now to see whether the statement made really was untrue. That may raise, as we said a moment ago, not only a question of fact but a question of law as well. The question is whether on this will the applicant was ever an executor. In our view he was not. The will contains a general devise and bequest to him of all the property of the testatrix upon a form of trust to spend it for religious purposes. And the only qualification upon that general devise and bequest is the direction to him that he shall 'pay to my beti Draupadi Rs. 500' if she fulfils a certain condition at the date of the death of the testatrix. Now, there is certainly nothing on the face of that which constitutes Swami Chakrapani as an express executor. There is not a word from first to last about the payment of the debts of the testatrix, which is the usual test of whether a person is appointed a constructive executor or not. The only thing that can possibly be said is that the final direction to him to pay Rs. 500 on a certain condition to Draupadi is the bequest of a legacy which he has to carry out, and consequently, since he is the person to pay it to the legatee, he must by construction be considered to be an executor.
7. As we have said above, the usual test to apply in matters of this kind is that if there can be spelt out of the will a direction or a charge on a particular person to pay the debts, then that person constructively becomes the executor. There is a good deal of authority for this : see In the Goods of Baylis (1865) L.R. 1 P. 21; In the Goods of Punchard (1872) L.R. 2 P. 369; In the Goods of Lowry (1874) L.R. 3 P. 157; In the Goods of Stewart (1874) L.R. 3 P. 244. We have found no case in which the charge of payment of a legacy by itself has been sufficient to constitute a person a constructive executor. And, indeed, we think that the reason for that is obvious. It is quite clear that the payment of debts is essentially an act of administration which can only be performed by a person before the ascertainment of a residue upon which a trust can take effect. No residue can naturally come into existence before the debts, funeral and testamentary expenses have been paid and, therefore, everything that takes place upto that point must necessarily be the function of an executor. But when it comes to considering the handing over of a beneficial interest to a person to whom some benefit is given, that by itself, although it in 99 cases out of hundred is performed by an executor, is not necessarily an executorial function. It may just as well be function charged upon a trustee to whom the entire estate has been bequeathed. In other words, there may be bequest of the residue which is itself charged with the payment of a sum of money to another person. In other words the taxing becomes a trust charged on the residue. And we think that it is only the will itself fiat can show whether in any particular case what has been given is charged on the estate generally before ascertainment of the residue so as to become the function of an executor to pay or whether on the particular will it is charged on the residue after its ascertainment so as to be a charge on the interest of the residuary legatee.
8. In this case we have no doubt that what has happened is that the testatrix has given her entire estate to Swami Chakrapani as a trustee and out of that trust interest of his he is charged first to pay the legacy of Rs. 500 to Draupadi and then to hold the balance for religious purposes. There is not a trace of an executorial function about that. The payment to Draupadi is charged on the residue after it has been ascertained and Swami Chakrapani himself takes no interest until after the debts have been paid. Neither expressly nor by implication is there any direction or charge or duty that Swami Chakrapani shall be the person who shall pay the debts. For these reasons we have come to the conclusion that Swami Chakrapani in this case never was constituted an executor and a fortiori was never a person named in the will as executor. There could for the former reason, therefore, have been no question of a grant of probate to him. We think, therefore, that we shall have to allow this appeal, to set aside the learned District Judge of Agra's order and to direct revocation of the grant of probate.
8. The effect of that will be to leave the alternative in the original application for the grant undisposed of. It will be remembered that the original application to the District Judge was in an alternative form asking first for probate and, secondly, for letters of administration with a will annexed. We shall, therefore, in addition order that the application of 18th April 1939 'be now restored to the District Judge's list and reheard upon the question whether the applicant Swami Chakrapani is entitled to a grant of letters of administration with the will annexed. That will, no doubt, raise questions as to citation and so forth which will be open before the District Judge. The appeal will be allowed with costs.