1. This is an appeal against an order of the District Judge, Nagaur, refusing to grant letters of administration with the will annexed in respect of the estate of one Lakshmi Chand of Nagaur.
2. Hukmi Chand, who is the brother of the deceased Lakshmi Chand, applied to the District Judge for grant, of letters of administration with the will annexed, and produced a will stated to have been executed by Lakshmi Chand on the 15th of January, 1948. The will was a registered one, having been registered on the 23rd of January, 1948. Lakshmi Chand died on the 11th of February, 1948, and the petition was presented on the 31st of August, 1948. The petition was opposed by Mt. Bhanwari, widow of Lakshmi Claand. The learned District Judge found that the will had been duly executed by Lakshmi Chand, and that Lakshmi Chand was not so ill on the date as not to be in full possession of his senses. He, however, refused to grant the letters of administration with the will annexed on the ground that the testator purported to dispose of the property which was a coparcenary property of Lakshmi Chand and his brother Hukmi Chand. He has also observed that the deceased made no provision for the maintenance of his widow in the will, which practically amounted to defeating her legal right to maintenance, which he had no authority to do. He also held that (amongst?) Digamber Jains, a person could not device his property in favour of his brother when he had a wife living. The petitioner Hukmi Chand, has come in appeal.
3. It may be stated at once that in proceedings relating to probate or to the grant of letters of administration with the will annexed, it is not the business of the Court to take into consideration the property which may be devised by the testator or whether he had a right to dispose of his property under the will. All that the Court has to decide in such cases is that the will had been executed by the testator and he had the capacity to understand the nature of the act, or that the Act was not vitiated by fraud, or undue influence, or detects of that nature. Reference may be made to 'Eai Parvatibai v. Raghunath Laksh-man', AIR (28) 1941 Bom 60 and 'Bua Ditta Mal v. Devi Ditta Mal', AIR (18) 1931 Lah 130. The learned counsel for the respondent accepted the proposition of law as stated above, and could not support the judgment of the lower Court on the basis it was given. He, however, contended that looking to the circumstances of this case and the disposition of the property made by the deceased leaving nothing for his widow, it should be held that the testator was not in a sound and disposing state of mind. He argued that it was most unnatural for a person to make no provision for a young wife when there was no quarrel or enmity between the husband and the wife. It was also stated that the testator had been suffering from tuberculosis for about five months, and ho must have been in a very feeble state of mind, and could not realise the nature of his act. He referred to the evidence recorded in the case, and argued that the testator was so ill during the period when the will had been executed that he could not understand that he was disposing of all his property without leaving anything for his wife. It was also argued that under the will, Hukmi Chand took the entire benefit of the estate of Lakshmi Chand, and as he was the person who sent for the scribe and took a leading part in the execution and registration of the with, the burden of proof lay heavily upon him to show that the deceased fully understood the nature of the disposition.
4. We have gone through the entire evidence, and we agree with the lower Court that it has been fully proved that Lakshmi Chand had a sound and disposing state of mind at the time of the execution of the will, and that the will was brought into existence under the instructions and at the instance of Lakshmi Chand himself. (After discussing the evidence the judgment proceeded:) In 'Sarat Kumari Bibi v. Sakhi Chand', AIR (16) 1929 PC 45, a certain provision in the will which was in favour of the scribe was held inoperative as on the evidence it was held that it had been inserted after the' draft had been approved by the testator, and the final document had not been read over to him. In 'Mt. Biro v. Atma Ram', AIR (24) 1937 PC 101, the question was whether the will had been executed by the testator. The evidence of the scribe and attesting witnesses was full of contradiction and the document itself was propounded after a lapse of 22 years, and had not been produced on various previous occasions, when it was natural to except that it would be produced.
5. The argument that no provision had been made for the wife and on that account it should be held that it was not the testator's wishes which had been incorporated in the will, is also not correct. It is mentioned in the will that certain jewellery had been taken away by the wife and was not being returned under the influence of the father of the lady,and it may have been thought proper by the testator to bequeath his estate to the brother rather than to the wife. Be that as it may, the evidence led by the petitioner is quite sufficient to prove that Lakshmi Chand was in a sound and disposing state of mind at the time of execution of the will, and the respondent has failed to substantiate her objections.
6. The appeal is, therefore, accepted, theorder of the lower Court is set aside, andletters of administration with a copy of thewill annexed in respect of the estate ofLakshmi Chand mentioned in the petition begranted to Hukmi Chand. In view of the factthat the respondent is the wife of the deceasedtestator, we make no order as to costs.