1. This is an appeal against the dismissal of an application for probate of a will dated 1-12-1953,
2. The following genealogy would show how the testator Mst Jhika was related to the appellantand the legatees :
| | |
Daddu Mihilal Shrikrishna
=Mst. Jamna | =Mst. Jhika
| Gendlal (Testator)
Bhaiyalal (Appellant No. 1)
(Appellant) | |
No. 2) Tulsiram Mohanlal
3. It is not now disputed that Daddu, husband of Mst. Jamna, and his brother Shrikrishna, husband of the testator Mst. Jhika, died long ago and thereafter the two widows, who were sisters, lived together and carried on a joint business in the course of which they acquired a small estate. It is also common ground that the ladies had executed a deed dated 18-7-1947 by which they gifted their house to the deity Shri Radha Krishnaji and placed the managers or trustees in charge of the temple of the deity in possession of that house. Mst. Jhika purported to revoke that gift by a deed of cancellation dated 13-3-1953. It wag alleged that, on 1-12-1953, she made a will of her entire property, including Rs. 6.600/- and ornaments deposited with Nanhelal Ratanchand, in favour ofTulsiram and Mohanlal, minor sons of the appellant Gendlal. Thereafter she died on or about 20-12-1953. This application for probate was made by Gendlal for and on behalf of his minor sons and also by Jhadu, a grandson of the other predeceased widow Mst. Jamna.
4. Ratanchand on behalf of the shop Nanhelal Ratanchand and the managers of the temple of Shri Radhakrishnaji entered caveat and denied the will, its execution and valid attestation. The managers further denied that, at the material time, Mst. Jhika was a capable testator or had a disposing mind. While Ratanchand stated that only Rs. 4,800/- was deposited with him and it was overdrawn by Mst. Jhika, the managers further pleaded inter alia that the gift deed dated 18-7-1947 was not, and could not be, revoked.
5. The lower Court held that the gift deed dated 18-7-1947 was irrevocable and remained unaffected by the deed of cancellation dated 13-3-1953, It was further found that, although Mst. Jhika executed the will dated 1-12-1953 as a capable testator having a proper disposing mind, itwas not proved to be validly attested. On that short ground, the suit was dismissed.
6. Since it is well-settled that a District Court, in its capacity as a Court of Probate, has no jurisdiction to determine any question of title regarding the property which the will purports to dispose of, we do not consider it necessary to enter into the questions of title raised in these proceedings.
7. Since a will, unlike a deed, does not operate in praesenti and Mst. Jhika disposed of, by her will dated 1-12-1953, her entire estate, it must be regarded as having revoked the earlier testamentary document relied upon by the managers of the temple of Shri Radhakrishnaji.
8. In the deposition of Matru A. W. 4, a reference is made to Ex. A-2 dated 13-3-1953, but that is a clerical mistake, since it is manifest that he attested the will dated 1-12-1953 and not the cancellation deed. Perhaps that led the lower
Court to think that no attesting witness was examined. In view of the evidence of Uttamlal A. W. 8 (scribe) and Matru A. W. 4 (attesting witness), due execution and valid attestation of the will Ex, A-l dated 1-12-1953 must be regarded as properly established. It is also clear from the evidence of Gendlal A. W. 1, Uttamlal A. W. 3 and Matru A. W. 4 that, at the time of execution of the will, Mst. Jhika was in good health and competent understanding. Even according to Sukhden Prasad N. A. W. 1, she was of sound mind until the end. In our opinion, the evidence quite clearly shows that, at the material time, she was a capable testator with a disposing mind. Differing from the lower Court, we hold that the will was validly attested and merits being admitted to probate.
9. There is, however, a difficulty in way ofgrant of probate of the will propounded in theseproceeding. There is no executor either namedin the will or according to the tenor of the will.Also, since both the universal legatees are minors,probate cannot be granted to them (Section 223of the Succession Act). In the circumstances, it is permissible to grant to Gendlal, father and guardianof the two minor legatees administration cum mento annexe. (Section 24G of the Succession Act).
10. The result is that the appeal succeeds and is allowed. Upon payment of prescribed court-fee, Letters of Administration with the wilt annexed shall be granted by the lower Court to Gendlal, father and guardian of the minor legatees Tulsiram and Mohanlal until any one of them attains majority. The respondents shall bear theirown costs and pay those of proponents in both the Courts. Counsel's fee here Rs. 50/-