1. The Sanskrit Pustakonnati Sabha, Itawah (respondent 1-B) through its seven trustees (respondents 1-A (1) to 1-A (7) and the Temple of Shri Mahasaraswatiji, Itawah (respondent 2), hereinafter referred to as the plaintiffs, brought Civil Suit No. 25-A of 1961, in the Court of Additional District Judge, Chhindwara, for possession of properties detailed in Schedules A and B attached to the plaint, against the appellant Rameshwar Prasad. The trial Court impleaded one Ram Dulare as defendant 2 in the case on an application made by him on 11-7-1963. The suit was decreed with respect to only part of the properties claimed against Rameshwar Prasad. He has, therefore, filed this appeal. Ram Dulare, defendant 2, also has been impleaded in the appeal as respondent 4.
2. It is no longer in dispute that the property in suit belonged to one Bal Govind who died, leaving behind two sons Sitaram and Raghuvar Dayal, Sitaram died on 27-7-1920, leaving his widow Dulari Bai as his only heir. Raghuvar Dayal died on 11-6-1923, leaving behind his widow Shahzadi Bai. Both these widows continued in possession of the properties. Shahzadi Bai died on 12-8-1955 and Dulari Bai died on 30-1-1960,
3. The case of the plaintiffs was that Raghuvar Dayal executed a will on 31-5-1923 by which he bequeathed the property in dispute in favour of the plaintiffs, subject to the life interest of the two widows Shahzadi Bai and Dulari Bai. They are, therefore, entitled to possession of the properties after the death of the last surviving widow Dulari Bai on 30-1-1960. However, the properties have been taken possession of by the defendant Rameshwar Prasad (appellant) without any right or title. Accordingly, they claimed possession of the properties from him.
4. The defendant Rameshwar Prasad denied that any will was executed by Raghuvar Dayal and pleaded that even if any will was executed by him, he did so in unsound mental condition. The will, if any, therefore, did not bind the estate. Rameshwar Prasad himself is the son of Raghuvar Dayal's wife's sister. He pleaded that he was living with the two widows and managing their estate on their behalf. The two widows executed a joint will in his favour on 7-12-1944 and after the death of Shahzadi Bai, Dulari Bai executed another will in his favour on 7-4-1956. Accordingly he claims that he is entitled to retain possession of the properties under the two wills.
Ram Dulare (respondent 4), who was subsequently impleaded on his application, claims to be the nephew of Raghuvar Dayal. He joined defendant Rameshwar Prasad in denying the will in favour of the plaintiffs. He further pleaded that there was a partition between Sitaram and Raghuvar Dayal in their lifetime, according to which Sitaram separated his half interest in the family property. That interest continued with Sitaram's widow Dulari Bai and after her death, passed to him. He denied the wills set up by the defendant Rameshwar Prasad and claimed that all the properties left by Sitaram and Raghuvar Dayal passed to him after the death of the two widows.
5. The trial court found that Raghuvar Dayal had made the will as pleaded by the plaintiffs, but held that Sitaram and Raghuvar Dayal had divided the family property between themselves and, therefore, the will could operate only to the extent of the share of Raghuvar Dayal in the property. Accordingly, the claim was decreed only as regards Raghuvar Dayal's share. It was also held that the two widows had executed wills in favour of Rameshwar Prasad, but the wills were got executed by him under undue influence. Accordingly, it was held that Rameshwar Prasad was not entitled to claim any property under those wills. So far as the defendant Ram Dulare is concerned, the court held that he was entitled to part of the properties, but no decree in his favour was passed as the court held that a separate suit was the proper remedy for him.
6. Several other defences were raised by the defendants to attack the claim of the plaintiffs, but it is not necessary for us to refer to them, as they are not material for the purpose of this appeal. Shri C. P. Sen appearing for the appellant has confined his argument only to two points against the plaintiffs. Those points are--
(1) that the plaintiff Trust not being registered under the Madhya Pradesh Public Trusts Act, 1951, the suit was barred under Section 32 of that Act; and
(2) that it has not been proved that the will by Raghuvar Dayal was executed when the testator was of sound disposing mind.
7. So far as the first point is concerned, it will be noticed that the plaintiff Trust is situate at Itawah in Uttar Pradesh and it is registered under the Societies Registration Act (No. 21) of 1860. Section 32 of the Madhya Pradesh Public Trusts Act, 1951 undoubtedly provides that 'no suit to enforce a right on behalf of a public trust which has not been registered under this Act shall be heard or decided by any Court'. This section, however, shall be attracted in case of those Trusts only which have to be registered under that Act. The Madhya Pradesh Public Trusts Act, 1951, being a State Act, cannot have any extra-territorial jurisdiction and it is for this reason that the scheme of jurisdiction in the Act is confined to Trusts operating in Madhya Pradesh. Section 3 of the Act provides that 'the Collector shall be the Registrar of Public Trusts in respect of every public trust the principal office or the principal place of business of which is situate in his district'. This provision makes it clear that in case of public trusts, which have their 'principal office' or 'principal place of business' outside the State of Madhya Pradesh, registration is not necessary for the simple reason that Collector in Madhya Pradesh will be competent to perform the functions of a Registrar in respect of such a trust. Section 4 requires every working trustee to make an application to the Registrar having jurisdiction for registration of the trust. In the instant case, as the office of the trust was situate in Itawah in Uttar Pradesh, no application was required from the trustees thereof for registration of the trust in Madhya Pradesh, as no such application would lie to any of the several Registrars in Madhya Pradesh, Reading the provisions in the Act, we have no doubt that trusts, whose principal office is outside the State of Madhya Pradesh, do not require registration under the Madhya Pradesh Public Trusts Act, 1951 and Section 32 of that Act is not a bar to the institution of suits by such trusts.
8. Turning now to the question whether the testator had a sound disposing mind at the time when he executed the will, it is true that the burden of proving this fact lies on the party setting up the will. The burden thus lay on the plaintiffs in the present case. However, it is to be noticed that the will was executed on 31-5-1923, i.e., about 45 years back. The attesting witnesses are all dead. The plaintiffs have examined several witnesses to prove the handwriting of the attestingwitnesses as also the endorsement made on the will by the testator and the attesting witnesses. Raghuvar Dayal himself has endorsed on the will (Ex. P-3), 'I have read and understood the above'. This endorsement is proved by the defendant's own witness Bal Govind (D. W. 4). One of the attesting witnesses, Lalchand Patni, who was an Honorary Magistrate, endorsed 'The executant has signed the above after having read arid understood it'. Similar was the endorsement of another attesting witness Anand Vinayak Wazalwar Advocate, that the executant had signed the deed in his presence having read and understood it. The third attesting witness Moolchand, who was a Sub-Registrar, also made a similar endorsement. As has already been said, the handwriting of the several witnesses making the endorsement has been duly proved.
9. D. W. 1, Parmeshwar Deen, who was the agent of Raghuvar Dayal, has been produced by the defendant to show that Raghuvar Dayal was not in his senses for some days before he died. The witness, however, admits in paragraph 4 of his deposition that after he told him his name, he recognised him and talked in full senses. The envelope containing the will was handed over to him by the wife of Raghuvar Dayal for being deposited with the Sub-Registrar and the witness admits that he did so. He was aware that the document was a will and it is unlikely that he would take to the Sub-Registrar if he knew that the testator was not in proper senses when he executed it.
10. As we have said, the will is about 45 years old. Evidence of persons who were present at the time of execution is not available. In Munnalal v. Mst. Kashibai, AIR 1947 PC 15 their Lordships have laid down the law applicable to ancient wills as follows:
'A party setting up a will is required to prove that the testator was of sound disposing mind when he made his will but, in the absence of any evidence as to the state of the testator's mind, proof that he had executed a will rational in character in the presence of witnesses must lead to a presumption that he was of sound mind, and understood what he was about. This presumption can be justified under the express provisions of Section 90, since a will cannot be said to be 'duly' executed by a person who was not competent to execute it; and the presumption can be fortified under the more general provisions of Section 114, since it is likely that a man who performs a solemn and rational act in the presence of witnesses is sane and understands what he is about.'
In view of the law as laid down in this decision, we must accept that the willwas executed by the testator when he had a sound disposing mind.
11. The will was in favour of a Trust and there are no suspicious circumstances attaching to its execution. At the time of its execution no one was present on behalf of the Trust to exercise influence on the mind of the testator to execute a will in its favour. Unlike the case of a will in favour of some individual, who benefits under it and is interested in securing the disposition by the testator by dubious means, the will in favour of a Trust stands on a different footing. Further, the disposition under the will is quite natural inasmuch as the only two dependents in the family, namely, the widows, have been provided full maintenance for their lifetime and there was no near relation who has been deprived of the property. Under the circumstances, the presumption that the will was made by the testator with a sound disposing mind becomes much stronger. We hold that the will was executed by Raghuvar Dayal after understanding fully the nature of the disposition he was making. Accordingly, the plaintiffs are entitled to the property which was left by Raghuvar Dayal under the will to the Trust.
12. The dispute raised by Ram Dulareattacking the two wills made by the two widows and setting up his own title as a near relation of Raghuvar Dayal and Sitaram as compared to Rameshwar Prasad is really a matter between the two defendants inter se. The trial court has recorded findings on some of the points raised by Ram Dulare against Rameshwar Prasad. However, the court finally observed that no relief could be given to Ram Dulare on the basis of those findings as the matter could be decided in a separate suit between the two defendants.
13. Shri C. P. Sen appearing for Rameshwar Prasad (appellant) and Shri Baghel, appearing for Ram Dulare (respondent 4) stated before us that the findings on the points in dispute between the defendants inter se are quite unnecessary for the disposal of the case set up by the plaintiffs. As desired by the two defendants, we make it clear that the findings of the trial court, so far as they relate to the dispute between them, are not binding on them, as no relief has been given to any of them on the basis of those findings and they have been directed to file a separate suit in which the matter will be canvassed on the merits of the case of each of the parties.
14. In the result, the decree of the trial court awarding relief to the plaintiffs in respect of Raghuvar Dayal's share in the family property is correct. The appeal is dismissed. The appellantRameshwar Prasad shall pay the costsof the plaintiff-respondents. The respondent 4 shall bear his costs as incurred.