(1) This appeal arises out of an application made by the applicant as the universal legatee of the estate of one Bechar Dunger alias Maharaj Balakdaji (hereinafter referred to as the deceased) for obtaining letter of administration with a copy of the will annexed. The deceased was originally a resident of Khoda and was carrying on worship of his Thakorji at that place. In Samvat Year 1979 he purchased land bearing Plot No. 98 admeasuring 2,000 square yards at Jorawarnager and built a temple on the said land and installed the images of his Thakorji in the said temple. He thereafter shifted to Jorawarnagar and performed the worship of Tahkorji and managed and looked after the temple. One Sadhu named Maharaj Srik Karsandasji gave him a 'Kanthi' and initiated him in the order of sadhu and since then he came to known as Maharaj Shri Balakdasji, he dedicated the land and the temple standing on it to Thakorji and carried on management of the temple and performed worship of Thakorji as a Shebait, It appears that some part of the property constructed on the land was let out and income was being received from tenants in respect of such part and the deceased took the entire income consisting of rent and offerings for himself and maintained, himself out of such income. The deceased already had one wife, but he took another wife named Bai Zabu on 20th December 1946. Thereafter he made a will dated 5th November 1947 disposing of in favour of the applicant who was initiated by him as his Chela during his life time, the right to manage the temple and to worship Thakorji and to take the income of the temple including rent and offerings for his own maintenance. The will was signed by the deceased in the residence of two witnesses, namely, Bhikhalal Oghabhai and Govubha Zhala who attested the signature of the deceased on the will. The deceased thereafter died some tine in 1949. Now at the date of the death of the deceased the applicant who was the universal legatee under the will of the deceased was a minor and he, therefore, after attaining majority made the present application for obtaining letters of administration of the estate of the deceased with a copy of the will annexed. The application was filed on 1st September 1949 in the Court of the Civil Judge, Senior Division, Surendranagar and notice of the filling of the application was served on Bai Zabu. Bai Zabu filed her objections on 11th January 1960 and on the same day the applicant filed affidavits on himself and his witnesses of whom it is necessary to mention the names of only two, namely, Ratilala Chhotalala and Givubha Zhala and Bai Zabu also filed the affidavits of herself and her witnesses. The application was ultimately heard on 14th April 1960 when the witnesses who had made the affidavits on each side were cross-examined by the other side and after the cross-examination was concluded, the arguments were heard by the learned Civil Judge. The learned Civil judge by an order dated 30th April 1960 held that the applicant had succeeded in establishing the due execution of the will and be accordingly granted letters of administration with a copy of the will annexed to the applicant paid the requisite count fee stamps. Bai Zabu who was the opponent in the application thereupon preferred the present appeal in this Court.
(2) The first contention urged by Mr. Padia, learned Advocate appearing on behalf of the opponent was that the learned Civil Judge had no jurisdiction to grant the letters of administration since a contention was raised on behalf of the opponent resisting the grant of letters of administration. It was only if the case was non-contentious that the learned Civil Judge could have jurisdiction to entertain the application and to grant letters of administration as a District Delegate under Section 265 of the Indian Succession Act but as soon as the case became a contentious one on the opponent filling her objections to the grant of letters of administration. The learned Civil Judge ought to have returned the application to the applicant in order that the same may be presented to the District Judge under Sec 288 of the Indian succession Act, Now it is no doubt true that if the mater rested merely on a consideration f the provisions of the Indian Succession Act, the contention of Mr. Padia would be well founded for it is clear that under Section 265 a Civil Judge, Senior Division, within any district can be appointed by High Court to act for the District Judge as delegate to grant letters of administration only in non-contentious cases and if in a case before the Civil Judge, Senior Division, a contention is raised, the Civil Judge, Senior Division , must return the application with any document which may have been filed along with it to the person by whom the application was made in order that the same may be presented to the District Judge under Section 288, reading Sections 265 and 288 together it is manifest that a civil Judge, Senior Division, cannot grant letters of administration in a case where a contention is raised against the grant of letters of administration. But the Saurashtra District and Subordinate Civil Courts ordinance, 1948 by Section 28-A Sub-section (1) provided that the High Court may be general or special order invest any Civil Judge, within such local limits and subject to such pecuniary limitation as may be prescribed in such order, with all or any of the powers of a District Judge or a District court as the case may be under the Indian Succession Act, 1925, and in exercise of the powers conferred under this Section the High Court of Saurashtra issued a Notification dated 30th July 1948 empowering all Civil Judges, Senior Division, within their territorial limits to exercise all the powers of a District Judge. The result was that though the civil Judge, a Senior Division, Surendranagar had no power under the Indian Succession Act to grant letters of administration in contentious cases, such power was conferred on him under the high Court Notification dated 30th July 1948 issued under Section 28-A (1) of the Saurashtra District and Subordinate Civil Courts ordinance, 1948. Now this Ordinance was repealed by Bombay Civil Courts (Extension and Amendments ) Act, 1958 on 1st April 1949, but the proviso to section 8 of that Act provided that any Notification issued under the Ordinance shall in so far as it is not inconsistent with the provisions of the Bombay Civil Court, Act, 1869 be deemed to have been issued under the corresponding provisions of the Bombay Civil Courts Act, 1869. The Bombay Civil Courts Act, 1869, contained Section 28-A of the Saurashtra District and subordinate Civil Courts Ordinance, 1948 and the High Court Notification dated 30th July 1948, therefore, continued in force as if issued under Section 28A of the Bombay Civil Courts Act 1869, notwithstanding the repeal of the Saurashtra District and Subordinate Civil Courts ordinance, 1948, until it superseded on 4th September 1948 by new Notification issued by the High Court of Bombay in exercise of the powers conferred under Section 28A of the Bombay Civil Courts Act, 1869. The High Court Notification dated 30th July 1948 was therefore, in force at the date when the application in the present case was made by the applicant in the Court of the Civil Judge, Senior Division, Surendranagar, and by virtue of the said Notification, the learned Civil Judge was competent to entertain the application and to grant letters of administration to the applicant despite the fact that the case became a contentious one by reason of the opponent filling objections against the grant of the letters of administration. This contention of Mr. Padia must, therefore, he rejected.
(3) Mr. Padia next urged that what was sought to be disposed of by the deceased under the instrument dated 5th November 1947 was not properly an that the instrument was, therefore, not a will of which probate r letters of administration with a copy of the will annexed could be granted. The contention is also in our opinion fallacious and cannot be sustained. 'Will' is defined in Section 2(h) of the Indian Succession Act to mean 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. It is, therefore indisputable that the instrument which is sought to be propounded as a will must contain the legal declaration of the intention of the testator with respect to his property. If what is sought to be disposed of by the deceased by the instrument in question is not property, the instrument in question is not property, the instrument cannot be regarded as a will it, therefore, becomes necessary to inquire, whether the right which was sought to be disposed of by the deceased by the instrument sought to be propounded as a will was property. Now we turn to the instrument we find that the did not purport to dispose of either the temple or the land on which the temple stood. The recitals contained in the instrument showed that both the temple and the land on which the temple stood were dedicated by the deceased to Thakoji and that they were, therefore, properties belonging to Thakoji as a deity. The decease was merely a shebait having the right to worship the deity, to manage and look after the temple and to appropriate to himself the income of the endowed property consisting of rent and offerings. The deceased declared by the instrument his intention that after his death this right of a Shebait should go to the applicant should have the right to manage the temple, to worship the deity and to maintain himself for the rent and other income of the temple. What was bequeathed by the deceased by making the instrument, was therefore, the Shebatiship of the temple. The question is whether the Shebaitship of the temple could be said to be property. If it was property then clearly the instrument executed by the deceased would be a will for a it would contain the legal declaration of the intention of the deceased with respects to his property, namely, the Shebaitship which he desired to be carried into effect after his death. But if it was not property, then that being the only subject matter of the instrument, the instrument would not be a will Mr. Padia on behalf of the opponent strongly contended that the Shebaitship of the temple could not be regarded as property but it was merely an office and the instrument was therefore at the highest no more than an instrument appointing the applicant to the said office after the death of the deceased. We cannot accede to this contention. The Shebaitship of the temple, we think, was not merely a religious office which could not be regarded as property for the purpose of civil law. The Shebaitship no doubt involved the performance of religious deities such as performing the worship of Thakoji but it also carried with it as an inalienable incident the right to appropriate the income of the temple. The Shebaitship was an office which brought income to the holder as a necessary concomitant of the office and it was, therefore, as much property as any other property known to law. If the shebatiship were merely a religious office without any beneficial interest in the endowed property and not producing any income, it might not have been possible to regard Shebaitship as property, but when it entitled the holder of the office to the income of the endowed property as also to the offerings which might be made to the deity, the Shebaitship must be regarded as property, the position indeed seems to be indisputable and does not need any authority to support it, but if any authority were needed, it is to be found in the decision of the Supreme court in Angurbala Mullic v Debabrata Mullick : 2SCR1125 where dealing with the question whether Shebaitship was heritable property, Mukherija, J. Speaking on behalf of the Supreme Court observed:
'In Hindu religious endowment on the other hand the entire ownership of the dedicated property is transferred to the deity or the institution itself as a juristic person and the shebait or mahant is a mere manager. But though a shebait is a manager and not a trustee in the technical sense, it would not be correct to describe the shebaitship as a mere office. The shebait has only duties to discharge in connection with the endowment, but he has a beneficial interest in the debutter property. As the Judicial Committee observed in the above case, in almost all such endowments the shebait has a share in the usufruct of the debutter property which depends upon the terms of the grant or upon custom or usage. Even where no emoluments are attached to the office of the shebait, he enjoys some sort of right or interest in the endowed property which partially at least has the character of a proprietary right. Thus, in the conception of sherbaiti both the elements of office and property, of duties and personal interest, are mixed up and blended together, and one of the elements cannot be detached from the other. It is the presence of this personal or beneficial interest in the endowed property which invests shebaitship with the character of a proprietary right. Thus, in the conception of shebaiti both the elements of office and property, of duties and personal interest, are mixed up and blended together; and one of the elements cannot be detached from the other. It is the presence of this personal or beneficial interest in the endowed property which invests shebaitship with the character of proprietary rights and attaches to it the legal incidents of property. This was elaborately discussed by a Full Bench of the Calcutta High Court in Manohar Mukherji v. Bhupendra Nath Mukherji ILR 60 Cal 452: (AIR 1952 Cal 791 FB) and this decision of the Full Bench was approved of by the Judicial Committee in Ganesh Chunder v Lal Behary , and again in Bhabatarini v Ashalata . The effect of the first two decisions, as the Privy council pointed out in the last case, was to emphasize the proprietary element in the shebaiti right and to show that though in some respects anomalous, it was an anomaly to be accepted as having been admitted into Hindu law from an early date. 'According to Hindu law' observed Lord Hobhouse in Gossami, (1889) 16 Ind App 137 (PC), when the worship of a Thakoor has been founded, the shebaitship is held to be vested in the heirs of the founder, in default of evidence that he has disposed of it otherwise, or there has been some usage, course of dealing, or some circumstances to show a different mode of devolutions. Unless therefore, the founder has disposed of the shebaitship in any particular manner and this right of disposition in inherent in the founder - or expect when usage or custom of a different nature is proved to exist, sehbaitship like any other species of heritable property follows the line of inheritance form the founder'.
Having regard to these observations of the Supreme Court it is clear beyond doubt or dispute that the Shebaitship of the temple in the present case was property and the deceased himself being the founder of the temple was entitled to dispose the Shebaitship by making a will. The instrument sought to be propounded as a will of the deceased, therefore, comes within the definition of 'will' as given in Section 2(h) of the Indian Succession Act and if the due execution of the will can be said to be established by the applicant the grant of letters of administration with a copy of the will annexed must be made to the applicant.
(4) That takes us to the last, contention which was debated before us, namely whether on the evidence on record the applicant could be said to have established due execution of the will. Now there is no doubt that the burden of establishing due execution of the will is on the person who propounds the will and the person propounding the will must satisfy the conscience of the Court that the instrument in question is the last will and testament of the deceased. The applicant for the purpose of establishing due execution of the will filed the affidavits of several witnesses, two of whom are material for the purpose of the present appeal and they are Ritlala Chhotalala and Govibha Zhala. Ratilala Chhotalala stated in his affidavit that he had prepared the original will under the instructions of the deceased and that the deceased had signed the will in his presence an thereafter at the same time the attesting witnesses had also, attested the signature of the deceased. He also added that at the time when the deceased made the will, he was in a sound and disposing state f mind. This witness was cross examined on behalf of the opponent and questions were asked in regard to the role alleged to have been played by him in the preparation of the will but his evidence in regard to the due execution of the will was not challenged at all in cross-examination. Not a single question was asked challenging the testimony of this witness that the will was signed by the deceased in his presence and thereafter at the same time the attesting witnesses attested the signature of the deceased. Govubha Zhala who was an attesting witnesses also stated in is affidavit that the deceased signed the will in his presence and thereafter attested the signature of the instance of the deceased. He also deposed to the sound and disposing state of mind of the deceased. The witness too was cross-examined on behalf of the opponent but curiously enough no challenge was levelled against the testimony of this witness in regard to the due execution of the ill and the sound and disposing state of mind of the deceased. In view of this evidence of these two witnesses namely Ratilala Chhotalal and Govubha Zhala it is clear that the will was prepared by Ratilala Chhotalala under instructions of the deceased and the deceased signed the will in the presence of Ratilala Chhotalala, Bhikhalala Oghadbhai and Govubha Zhala and immediately thereafter Bhikhalala Oghadbhai and Govubha Zhalala attested the signature of the deceased that the deceased was in a sound and disposing state of mind at the time when he executed the will. The will must therefore, be held to be duly executed by the deceased, Mr. Padia however, contended that the learned Civil Judge was in error in not taking the oral evidence of the witnesses in examination - in - chief and proceeding merely on affidavits and this illegality committed by the learned Civil Judge vitiated the entire trail of the suit and the order made by the learned Civil Judge must, therefore, be set aide and the application must be remanded to the learned civil Judge for disposal; after taking the oral evidence of witnesses in accordance with the procedure prescribed by law. This contention raises a question of considerable importance relating to the procedure to be followed by Judges taking testamentary matters in the districts in contentious cases. There can be no doubt that when a case is a non-contentious one, the Judge hearing an application for probate or letters of administration can act on affidavits. Order 19 Rule 2 of the Code of Civil Procedure provides that upon any application evidence may be given by affidavit, but the Court may at the instance of either party, order the attendance for cross-examination of the deponent. The Judge hearing an application for probate or letters of administration may, therefore, allow evidence to be given by affidavits and acting on such evidence given by affidavits, grant probate or letters of administration and the case becomes a contentious one, this procedure, we are afraid, cannot be followed by the Judge. When a contention is raised, Section 295 of the Indian Succession Act says, 'the proceedings shall take, as nearly as may be, the form of a regular suit according to the provisions of the Code of Civil Procedure, 1908, in which the petitioner for probate or letters of administration, as the case may be, shall be the plaintiff, and the person who has appeared to oppose the grant shall be the defendant.' The application is, therefore, converted into a suit as soon as a contention is raised and the same procedure is then required to be followed as is prescribed for a suit under the Code of Civil Procedure. Now it is elementary that in a suit the evidence of witnesses must be taken viva voce and affidavits cannot take the place of oral evidence. The only provision in the Code of Civil Procedure under which evidence may be given by affidavit is that contained in Order 19, Rules 1 and 2. Order 19 Rule 2 obviously cannot apply for it deals with giving of evidence by affidavit only upon an application. There is a conflict of authorities amongst various High Courts as to the true meaning of the word 'application' in this rule. One view is that it means 'interlocutory applications' such as one for injunction, attachment before judgment and appointment of receiver and not a substantive application while the other view is that the language of the enactment is wide enough to comprehend all applications, substantive as well as interlocutory. But on one point there is no dispute and that is that the rule applies only to giving of evidence by affidavit in an application and not in a suit. Order 19 Rule 1 of course applies generally to all proceedings and even in a suit a Court may at any time for sufficient reason order that a particular fact or facts may be proved by affidavit or that the affidavit of any witness may be read as the hearing on such conditions as the Court thinks reasonable, but there is a proviso to this rule which is very important and it is that proviso which negatives the applicability of the rule in the present case. The proviso says that where it appears to the Court that neither party bona fide desires the production of a witness for cross-examination and that such witness can be produced, an order shall not be made authorizing the evidence of such witness to be given by affidavit. Now in the present case it was clear that each side wanted to cross-examine the witnesses on the other side and in fact did cross-examine the witnesses. The learned Civil Judge could not, therefore, having regard to the proviso make an order authorising the evidence of the witnesses to be given by affidavits. As a matter of fact, we do not find any order made by the learned Civil Judge authorising the evidence of witnesses to be given by affidavits and no such order can even be implied for the rule requires reasons and a fortiori the reasons would have to be set out in the order. We are, therefore, of the view that the action of the learned Civil Judge in proceeding on the affidavits of the witnesses and not examining-in-chief the witnesses in Court could not be justified under this rule. But even so we do not think that the trial of the suit was vitiated by any illegality. Though, there may be no provision in the Code authorizing the Court in a case such as this to take the evidence in examination-in-chief of the witnesses by affidavits, it is always open to the parties to agree that a particular affidavit may be treated as evidence in the case and the deponent of the affidavit may be further examined in chief or cross-examined on the statements made in the affidavit. This course was clearly assented to by the parties in the present case and that this assent could be implied from the fact that neither party objected to the affidavits being treated as evidence in the case. The trial of the suit, cannot, therefore, be held to be vitiated despite the unusual procedure followed by the learned Civil Judge and the order made by the learned Civil Judge granting letters of administration to the applicant must be sustained.
(5) Before we part with this case we must point out that though we have sustained the order of the learned Civil Judge on the ground of implied agreement of parties, the course adopted by the learned Civil Judge does not commend itself to us. The learned Civil Judge ought to have recorded the oral evidence of the witnesses in examination-in-chief when he found that the opponent had filed her objections and the case had become a contentions one. We are told by the learned advocates appearing on behalf of the parties that sometimes this practice of receiving affidavits and permitting cross-examination on such affidavits is followed by Judges in the districts even in contentious cases, but we are of the view that save where there is express consent of the parties, this practice should not be followed and we strongly deprecate the same. Once there is a contest, the application is converted into a suit and the procedure for suit must be followed as prescribed in Section 295 of the Indian Succession Act. The oral evidence of the witnesses must be recorded in Court and an affidavit prepared before hand not signed by a witness can hardly be a satisfactory substitute for examination-in-chief in Court where the witness has to give evidence in open Court and where no leading questions can be asked which might prompt him to give the desired answers. The practice of receiving affidavits may undoubtedly tend to shorten the work of the Court but the Judges in contentious cases should avoid the temptation of adopting this practice howsoever helpful to quick disposal it may seem to be and should record the whole of the evidence of the witnesses in open court, for that is the procedure which law prescribes and which is the surest guarantee of ascertainment of truth.
(6) These were all the contentions urged before us and since in our view there is no substance in them, the appeal fails and will be dismissed with costs.
(7) Appeal dismissed.