1. Mahabir Singh and Nandan Singh were two brothers of whom Mahabir Singh died first. The plaintiff Dudhnath, minor, is daughter's son of Mahabir Singh. On the death of Mahabir Singh, Nandan Singh applied for mutation of names in his favour and so did Mt, Jhunna Kuar, mother of Dudhnath and daughter of Mahabir Singh. On 16th August 1923 Nandan Singh and Mt. Jhunna Kuar put in a petition to the Court in which Nandan Singh declared that his name may be entered against the property by right of inheritance during his life time and after his death half the property may be entered in the name of the plaintiff Dudhnath and the other half described as Nandan Singh's own in the name of his daughter Mt. Munna Kuar defendant. On the death of Nandan Singh Dudhnath under the guardianship of his mother sued for the recovery of half the property on two grounds.
(1) That Mahabir Singh and Nandana Singh were separate; and (2) That the instrument of 16th August 1923 filed in the revenue Court during mutation proceedings amounted to a will by Nandan Singh with respect to the property in suit, and that the terms thereof should be carried out. Dudhnath's claim on the first ground must obviously fail. Even if Mahabir Singh and Nandan Singh were separate the person entitled at present to the possession of the property would be Mt. Jhunna Kuar and not the plaintiff Dudbnath. As it is, the subordinate Courts have held that Mahabir Singh and Nandan Singh were joint. It was not necessary to record that finding, and Dudhnath's suit must fail by reason of the existence of his mother.
2. On the decision of the second question the two subordinate Courts have differed. The trial Court held the document to be a will, while the lower appellate Court held that it was not a will because it was irrevocable. I disagree with that Court in its opinion that the document is irrevocable. Nandan Singh received no consideration for bequeathing half the property to Dudhnath, and, therefore, the instrument was not binding on him. If the document were taken to be a settlement of family disputes it ought to have been registered as it dealt with immovable property of the value of over Rs. 100 see; Ramgopal v. Tulshi Ram : AIR1928All641 . As far back as 1884 a Bench of this Court held a document of this nature to be a will. A sonless Hindu widow, in possession of a deceased husband's estate as such, made a statement before a revenue official, which was recorded by him, to the effect that she wished the property to go after her death to her nephew, and that S. the person entitled to succeed her, had no right to the property. This Court held that the statement was intended to operate, and would have operated, as a will in respect of the property Kallan Singh v. Sanwal Singh  7 All. 163. This ruling was quoted with approval by the Calcutta High Court in 1908 in Din Tarini Devi v. Krishna Gopal Baghchi  36 Cal. 149. One of the indicia of a will mentioned by their Lordships of the Privy Council at p. 800 in the case of Thakur Ishri Singh v. Thakur Baldeo Singh  10 Cal. 792 was that the document should not purport to give to anybody any possessory or other interest until the death of the donor. The document is not a deed of transfer operating at once. In the present case Nandan Singh had no son and was entitled to make a will on the date of the document. On behalf of the respondent a Madras ruling in the case of Rajammal v. Authiammal  33 Mad. 304 was quoted In that case their Lordships pointed out that there were clear provisions in the document having an immediate operation. They also held that the document was irrevocable. Only a portion of the document purported to operate as a will, and not the entire document. There were immediate gifts of jewels made to his wife and to his son's widow. He had promised to transfer the patta for the lands and the license for the saltpans to the names of his wife and his son's widow during his life time. I hold that the document in the case before me is a will. I set aside the decree of the lower appellate Court and restore the decree of the trial Court with costs of all the Courts.