1. These two appeals arise out of the same suit, which was partly decreed by the Civil-Judge of Aligarh. F.A. No. 392 of 1939 has been filed by the first three defendants to the suit and the appellant in F.A. No. 427 of 1943 is the plaintiff to the suit. The suit related to the estate of a Gujerati Brahmin, Jani Shyam Shankar alias Shyaman Shankar.
2. Jani Shyam Shankar died on 11th April-1914, leaving him surviving a widow, Mt. Chunni Kunwar, and five daughters. The widow continued in possession of the estate of her husband till her death in the year 1936. During this period, she made certain alienations. The plaintiff, Mt. Rasili Kunwar, is a daughter of a deceased daughter of Shyam Shankar, named Mt. Maggo Kunwar, and she claims under an alleged will of Shyam Shankar. The suit was brought against 19 defendants. The relationship of the first 15 defendants inter se and their relationship with the plaintiff will appear from the following extract of pedigree taken from a larger pedigree set out in the plaint.
Lakshmi Shankar Ballabh Shankar
Chunni Kunwar ----------------------
= Shyam Shankar | |
| Ratan Shankar Mathura Shankar
| | | | |
Mt. Maggo Kunwar Mt. Jhajoo Kunwar Mt. Channa Mt. Rangili Mt. Chhabili Kunwar
| (died issueless) Kunwar (Deft. 1) Kunwar (Deft. 2) (Deft. 3)
Mt. Basili Kunwar
3. The three surviving daughters of Shyam Shankar were impleaded as the first three defendants and the sons of Ratan Shankar and Mathura Shankar as defendants 4 to 15. The transferees from the widow, Mt. Chunni Kunwar, were impleaded as defendants 16 to 19. The plaintiff alleged that the transfers made by the widow were not justified by any legal necessity and were not binding upon her. She, therefore, prayed for possession of a one-fifth share in the estate of Shyam Shankar, including the property in the possession of the transferees, and also for a decree for mesne profits. The property in suit consists of zamindari property mentioned in Schedule A of the plaint and house property mentioned in Schedule B of the plaint. The defendants denied the will and alleged that Shyam Shankar had died intestate. The transferees further pleaded that they were bona fide purchasers for value and that the transfers in their favour were made for legal necessity and were binding on the plaintiff. It is not necessary to mention other pleas raised in defence because they have not been pressed before us.
4. The Court below found that, having decided to make a testamentary disposition of his properties, Shyam Shankar dictated a draft of his will four days before his death and subsequently approved it and that the said draft, which is Ex, 31 of the record, constitutes a valid will of Shyam Shankar, according to which the plaintiff is entitled to a one-fifth share in his estate. The Court below further found that of the four transfers made by the widow, Mt. Chunni Kunwar, the transfers in favour of Manohar Lal, defendant 17 and Mt. Raj Rani, defendant 19. were made for justifiable legal necessity and were binding on the plaintiff, while the transfer in favour of Mt. Brij Dulari, defendant 18, was not made for any legal necessity and did not therefore bind the plaintiff. The Court found the mortgage in favour of Mt. Parbati Kunwar, defendant 16, to be finding to the extent of Rs. 640-7-0 only.' On these findings the Court below gave the following decree to the plaintiff:
It is ordered and decreed that the plaintiffs claim for separate possession over 1/5th of the property mentioned in list B be decreed. She is declared to 1/5th share in the property given in list A, and actual division can be carried by the revenue Court. The claim against Parbati Kunwar for possession over 1/5th share can only be decreed if the plaintiff pays Rs. 640-7-0. If she does not pay, Parbati Kunwar will remain in possession in lieu of her maintenance allowance and 040-7-0. The claim against Manohar Lal defendant is dismissed, and as against Mt. Raj Rani. The mortgage-died in favour of Brij Dulari is declared invalid and not binding on plaintiff and other legatees. The decree bused on the mortgage in favour of Brij Dulari is ineffectual against the plaintiff and other beneficiaries under the will. The claim for mesne profits against defendants 1 to 3 with effect from 4th May 1936, till delivery of possession shall be determined in the execution department....
5. The defendants-appellants in F.A. No. 892 of 1939 challenged the finding of the Court below about the will of Shyam Shankar. It is not disputed that the plaintiff would be entitled to the one-fifth share claimed by her if this Court affirms the finding of the Court below that the aforesaid draft constitutes the will of Shyam Shankar. It has not been seriously disputed, although it has not been admitted, that draft, Ex. 31, was dictated, corrected and approved by Shyam Shankar. What has been seriously disputed is that the said draft constitutes a will. The contention is that the evidence, on the record does not go beyond proving that a will was in the course of preparation and that it does not establish that a completed will was made by Shyam Shankar.
6. Sham Shankar was separate from other members of the family and, having no male issues, was competent to dispose of his property in any way he liked. It appears from a letter, written by Shyam Shankar shortly before his death, Ex. 33 of the record, that he had decided to make a will in respect of his estate when He wrote that letter. He writes in this letter:
I have lost my physical strength for eight days. I lose my balance of mind when I see the flow of blood. Now it has occurred to my mind that I should dispose of my property in satisfaction of the debt due to all the persons and execute a will in respect of the remaining property in favour of my children, so that I may be relieved of a great anxiety. My daughter and her mother quarrel with each other. I want that this quarrel, which I see every day with my own eyes, may not exist in future. In view of the nature of the disease, I do not see any hope of recovery.
It is manifest from his letter that Sham Shankar thought that he was approaching death and that he had made up his mind to make a testamentary disposition about his estate. What subsequently happened is to be gathered from the depositions of two witnesses who have been believed by the Court below and who appear to be reliable to us also. One of these, Ratan Shankar, is a cousin of Shyam Shankar, and the other, Rai Bahadur Sohan Lal, acted as a lawyer for Shyam Shankar. Ratan Shankar deposed as follows:
Shyam Shankar was Buffering from galloping phthisis. Shyam Shankar expressed desire to make a will and so Shadi Lal prepared a draft. Shadi Lal was Mukhtar-Am of Shyam Shankar. Shyam Shankar dictated the draft.... The draft was written four days before his death.... Shadi Lal read the draft to Ganga Shankar and Shyam Shankar. Ganga Shankar and Shyam Shankar made some alterations and Shyam Shankar accepted the alterations and the draft was again read out. Shyam Shankar confirmed the amended draft and directed that it should be faired and then registered when registry office reopened.... The draft was sent to Babu Sohan Lal Vakil. Babu Sohan Lal approved of the draft and said that there was no legal defect.
Rai Bahadur Sohan Lal corroborates Ratan Shankar on the point that the draft was sent to him for approval and states that he sent word to Shyam Shankar that the draft was proper and had no legal defects. It also appears from the deposition of Ratan Shankar that Shyam Shankar died on the night following the day on which the amended draft was approved. The question for our consideration thus confines itself within a very narrow compass, namely, whether a document dictated with the intention of reducing to writing the declarations of a person with regard to the disposition of his estate after his death and subsequently approved by him as correctly embodying those declarations constitutes in law the will of that person, when the law does not require any formality for the validity of a will. No formality was required in this case as the alleged will was made before 1st January 1927, (see Section 57, Succession Act XXXIX  of 1925 as amended by Act XXXVII  of 1926).
7. 'Will' has been defined in the Succession Act as follows:
'Will' means the legal declaration of the intention of a testator with respect to his property which he desires to be carried into effect after his death.
This definition has been adopted by Mayne as applicable to Hindu wills (vide Mayhe's Hindu Law, Edn. 10, p. 880, para. 744). It has also been referred to in Section 867 of 'Principles of Hindu Law' by D.F. Mulla. In 'Concise Law Dictionary' by Osborn 'will' has been defined as
a disposition or declaration by which the person making it (the testator) provides for the distribution or administration of property after his death.
In our opinion, the definition .contained in the Succession Act appropriately defines a will generally, whether it be governed by that Act or not.
8. It has, therefore, to be seen whether the transaction in the present case fulfils the requirements of this definition. We are of the opinion that it does. The approval of the amended draft by Shyam Shankar amounts to a legal declaration by him of his intention with respect to his property, which declaration he desired to be carried into effect after his death. It may be noted here that the draft, which he approved, ends with the following words : 'I have, therefore, executed this will, so that it may serve as evidence.' This indicates that Shyam Shankar had finally made up his mind about his testamentary intentions when he declared them and that he did not intend to reconsider and revise them.
9. We are of the opinion that where a person, intending to make a will, has proceeded so far with the process that he has declared his intentions finally formed either by making the declaration or by approving a writing embodying them, without any idea of revising or reconsidering them, with the intention that the process be continued to give effect to his intentions and directions in such form as he desires to be given, or to complete the formalities like signing, attesting, registering or depositing the document with any authority, and the process is thereafter interrupted by the death of the testator, the declaration, nevertheless, amounts to a complete will, unless it can be proved that the intention was given up before death or unless such formalities are required by law for the validity of a will. This view is supported by authorities to which we shall presently refer.
10. In Bone and Newsam v. Richard Spear (1809-12) l Phillim 345 probate was sought of a document which was superscribed as 'heads of the Will of William Spear'. It was alleged and pleaded that when the deceased was taken ill, he told a friend ' that he had written the heads of his will, and signed it, and that it would do very well' and that, when the friend urged him to make it in a more formal manner, he replied that he would do so but repeated that what he had already written would do very well and that he died the next morning. It was observed by Sir Johan Nicholl, before whom the case came up for trial, that 'if these facts shall be proved, as they are laid in this allegation, they will be decisive of the validity of this paper; they will establish continuance of intention, and non-execution caused by the interposition of death.'
These facts were proved and probate was granted.
11. In the goods of T. Fisher (1869) 20 L.I. 684 probate was sought of a document described as 'Instructions for my last will and testament' Lord Penzance observed:
I am satisfied that when a man has executed a paper of instructions like this, it must be presumed that he intends it should take effect, though he may intend at some future period to execute it in a more regular form.
12. In Auliya Bibi and Ors. v. Ala-ud-din and Ors. 28 All. 715 this Court had to consider a document which was put forward as the will of a Muslim lady, Mt. Badr-un.nisa. It was proved that a few days before her death Mt. Badr-ud-nisa sent for a Vakil and gave him directions to prepare a will on her behalf, that a draft will was prepared by the said Vakil in accordance with the directions given by the lady, that a fair copy of the draft was sent to her and that the pleader thereafter saw her when she told him 'I shall sign the will relying on your faith.' When the document was produced in Court, contained a mark which was said to have been made by Mt. Badrunnisa in token of execution. It was found that the mark had not been made by the lady. Nevertheless the document was held to constitute the will of Mt. Badr-un-nisa. Stanley C.J. observed:,
Now according to the Muhammedan Law, a will may be made either verbally or in writing and no special form or solemnity for making or attesting a will is prescribed. It is sufficient if a will can be proved to have been really and truly the will of the testator.
The Hindu law regarding the execution of wills before 1927 was the same.
13. In Balmakund v. Ramendra Nath Ghose : AIR1927All497 probate was sought of a document which on the face of it was the draft of a will. It purported to revoke an earlier registered will. It was unsigned and undated. It was proved that the testator handed over the draft of the new will to his lawyer and asked him to make arrangements for the deposit of the document with the District Registrar. The lawyer, however, failed to make the deposit, as directed, within a reasonable time and the testator died in the meanwhile. Lindsay, J. delivering the judgment of the Court, observed:
Under Section 3, Probate and Administration Act, a will is defined as being 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. It is not disputed that in the case of a Hindu, as Ram Rup Ghose was, the declaration may be legal although it is not signed by the testator, nor attested by witnesses, and it has been held in a number of cases that the draft instruction given by a testator to a lawyer, or a draft will prepared on such instruction, can be treated as a will so as to allow grant of probate. We may refer in this connection to three cases: Auliya Bibi v. Ala-ud-din 28 All. 715, Janki v. Kallu Mal, 31. All. 236 and Sarabai Amibai v. Mohammad Casum Haji Jan Mohamad A.I.R. (6) 1919 Bom. 80. Consequently, if it is found that the draft Ex. 4, though not signed by the testator and unwitnessed, fees represent the last wishes of Ram Rup Ghose regarding the disposal of his property, effect must be given to it as a will....
Learned Counsel for the respondents had relied on the case of Janki v. Kallu Mal 31 ALL. 236 also. In this case too the draft of a will was put forward as the will of the testator. It was caused to be prepared by the testator, was read and explained to him and was banded over to the person who was appointed a trustee under the will with the direction that he should have it faired out for his signature. It was also proved that the testator desired to make some small alterations in the draft but died before all this could be done. The draft was held to constitute the will of the testator.
14. Learned Counsel for the respondents has contended on the strength of these two last oases, namely, Balmakund's : AIR1927All497 and Janki's 31 ALL. 236 cases, that every draft of a will intended to be executed by a Hindu constitutes his will. Certain observations contained in these cases do lend support to such a contention. We are unable to accept such a wide proposition and wish to guard ourselves against being understood to concur with all the observations contained in these cases. A declaration by a person with regard to the disposition of his property after his death does not constitute a will, unless it is made animo testandi. Sir George Rankin, delivering the judgment of their Lordships of the Judicial Committee in Mahabir Prasad v. Mustafa Hussain laid down the law as follows:
Upon a question whether an oral statement amounted to a will the greatest care must be taken and strict proof must be required. The Court must be made certain that it knows what the speaker said and must from the circumstances and from the statement be able to infer for itself that the testamentary effect was intended in addition to being satisfied of the content of the direction given.
Similarly, Sir John Wallis, delivering the judgment of their Lordships of the Judicial Committee in Venkat Rao and Anr. v. Namdeo and Ors. observed as follows:
As regards the alleged oral will of the Monday evening, it is, in their Lordships' opinion, quite clear that the defendants have failed to prove that such a will was made, A declaration such as is alleged to have been made by the deceased on that occasion- of testamentary intentions to which effect was to be given by a written will cannot be regarded as an oral will. It cannot, in such a case, be inferred that there was the necessary animus testandi or intention that the oral declaration should itself operate as testamentary disposition of the declarant's property.
15. It is not enough that one knows what the intentions of a testator were with regard to his property after his death. Even though such intentions may be well known, they do not amount to a will. In the case of an oral will, as already observed, it is necessary that the testator must have declared such intentions 'animo testandi' and if it is a written will, that is relied upon, Court must be satisfied that the testator intended that the writing relied upon should be operative after his death as his will. We have thought it desirable to lay some emphasis on this point because the difference between the wishes of a testator and a declaration of his intentions, orally or in writing, is at times overlooked. Even where a testator might have desired to execute a more formal document later, his intentions already declared whether orally (where an oral will is permissible) or in a less formal document, may be treated as his will, but only if it is proved that the testator intended the oral declaration or the writing to be enforced after his death in the absence of a more formal document, intended to be executed in future. We consider that a mere draft, which the testator never intended to be treated as his will in the [absence of a more formal document, cannot be admitted to probate, merely because the Court feels satisfied that if the testator had lived, he would have executed a will in the terms of the draft that he had prepared or got prepared. We are thus unable to concur in the view that every draft of a will can be treated to be a will where no formalities are required for its validity.
16. In the present case, however, we are satisfied that Shyam Shankar not only made a declaration of his intentions with respect to his property which he desired to be carried into effect after his death but also clearly manifested the necessary animus testandi by finally approving the draft and by continuing till his death in his desire to have effect given to it. We agree with the finding of the Court below that, in the circumstances of this case, draft Ex. 31 constitutes the last will and testament of Shyam Shanker.
17. No other point was argued in this appeal. F.A. No. 392 of 1939, therefore, fails and should be dismissed.
18. Learned Counsel for the plaintiff-appellant, Mt. Rasili Kunwar, in F.A. No. 427 of 1943 has contended, in the first place, that the transfers made by Mt. Chunni Kunwar in favour of Mt. Parbati Kunwar, Manohar Lal and Mt. Raj Rani are not binding upon the plaintiff-appellant. These transfers were made to pay off the debts due from Shyam Shankar land were thus made for legal necessity and are binding upon the plaintiff-appellant. In our opinion, there is no force in this contention of the learned Counsel for the plaintiff-appellant and we reject it.
19. The next contention of the learned Counsel for the plaintiff-appellant is that the Court below should have awarded joint possession of the zamindari property, even though it could not award actual possession by partition of the plaintiff's share. The declaration granted by the Court below entitles the plaintiff to get her name mutated in the village papers and to claim her share of the profits from the Lambardar. Learned Counsel has failed to satisfy us what more he could get by a decree for joint possession. Another reason why this contention cannot be accepted is that no relief for joint possession was claimed in the suit. There is no force in this contention either.  The next contention of the learned Counsel is that while the Court below has decreed mesne profits against defendants 1 to 3 from 4th May 1936, till the delivery of possession, appellant would not be able to get any mesne profits in respect of the zamindari property because a decree for possession in respect of that property has not been granted. There seems to be force in this contention. Learned Counsel for the respondents has been unable to show any cause why the plaintiff should be deprived of the mesne profits in respect of the zamindari property. We are, therefore, of the opinion that the decree of the Court below should be modified to make it clear that the plaintiff-appellant will be entitled to get mesne profits in respect of zamindari property also from 4th May 1936, up to the date of the decision of the suit by the Court below when her right to that property was declared.
21. Lastly, learned Counsel has contended that he should have been allowed mesne profits against Mt. Brij Dulari also, the transfer in whose favour has been held to be not binding on the plaintiff. There is force in this contention also and it appears to us that it is on account of an accidental omission that the Court below has failed to grant a decree for mesne profits against Mt. Dulari.
22. In the result, F.A. No. 392 of 1939 is dismissed with costs and F.A. No. 427 of 1943 is allowed in part and the decree of the Court below is modified to this extent that the plaintiff-appellant is allowed a decree for mesne profits against Mt. Brij Dulari and that she is granted a decree for mesne profits in respect of zamindari property also from 4th May 1936, up to 23rd August 1939, the date on which the suit was decided by the Court below. The rest of the appeal is dismissed. As the appeal has partly succeeded and partly failed, we direct the parties to bear their own costs of this appeal.
23. There is a cross-objection by respondent i in F.A. No. 427 of 1943. The first ground taken in the Cross-objection is as follows:
Because the decree does show correctly the amount of costs incurred by Mt. Parbati in defending her claim.
As the ground stands it is meaningless. Probably it was intended to say that the decree does not correctly show the amount of costs incurred. Learned Counsel has not attempted to show any mistake in the table of costs. Moreover, if there was any mistake, it could have been easily got corrected by an application to the Court below. The second ground taken in the cross objection is that the Court below should not have deprived the cross-objector of her costs. It appears that the alienation in favour of the cross-objector, Mt. Parbati Kunwar, was only partially upheld. Under the circumstances, the Court below neither awarded any costs to Mt. Parbati Kunwar nor any costs against her. We are unable to say that in doing so the Court below did not exercise a judicial discretion. There is, thus, no force in the cross objections. They are dismissed with costs.