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In Testamentary Petition of Champa Lal Banthia - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtRajasthan High Court
Decided On
Case NumberS.C. Civil testamentary Case No. 2/1969
Judge
Reported in1977WLN582
AppellantIn Testamentary Petition of Champa Lal Banthia
DispositionPetition dismissed
Cases ReferredG. Jayakumar v. R. Ramaratnam
Excerpt:
.....to - trust created out of some property of deceased--held, devasthan department cannot be party to probate proceedings.;the devasthan commissioner comes into picture only an account of the dispositions in the will and he is not expected to oppose the will. now, simply because a trust has been created out of some properties of the deceased and simply because banshilal apprehended that the so-called executors and other persons are trying to cheat the public of the benefit of the trust, he cannot be permitted to dabble in these proceedings.;(b) probate - caveator is entitled to prove his interest and disprove validity & genuineness of will.;the caveator. shall be entitled to prove his interest and also to disprove the genuineness and validity of the will, though a decision in the..........to this court on 28 6-76.10. one banshilal maloo had applied for being made a party to these probate proceedings. but his application was rejected by this court as early as 31-7-70. the commissioner of wealth tax, rajasthan also tried to get in to the tray. but his application wa3 rejected by this court on 13-7-77.11. banshilal has made yet one more application on 14-7-76 purporting to act on behalf of the devasthan commissioner. he prayed that the devasthan department is a necessary party and he should also be impleaded in these proceedings. i have heard his counsel shri kewalchand. the devsthan commissioner has not cared to make any such application, nor has he authorised banshi lal to make an application on his behalf. banshi lal has produced a copy of the letter dated 12-5-76.....
Judgment:

M.L. Jain, J.

1. This is a petition for grant of probate filed on 9 4-69 by one Shri Champalal Banthia and another Shri Laherchand Sethia. The latter petitioner has since then died.

2. One Ganeshilal Maloo of Bikaner was a multi millionaire and had large properties situated in Rajasthan Bihar and East Pakistan. He had a son Dalchand Maloo, who predeceased him in the Svt. year 1974. Ganeshilal himself expired in the Svt. year 1975 Dalchand's mother died in the Svt. year 1980. Dalchand had a daughter, who also died some time before 1951 leaving two sons and two daughters behind. Dalchand's widow Mst. Raj Kanwari Maloo died in the year 1957. It is alleged that before her death that is on 5 7-51, she made a will of the properties inherited by her through her deceased husband. The will is Ex 1 The petitioner had filed an application for probate in the court of District Judge, Bikaner, but upon discovering that the High Court could alone grant a probate in respect of the properties situated out-side Rajasthan and exceeding Rs. 10,000/- in value, the present petition has been preferred by them in this court.

3. The alleged will states that Mst. Raj Kanwari had adopted ore Chorulal, now a caveator But she could not complete the formalities of the adoption. However, she stated that except the properties, which will presently be stated, all the properties belonging to and inherited by her shall devolve upon her adopted son Chorulal. The properties which the said will proposes to bequeath in the manner specified in the will, are as follows:

1. For Charitable purposes (i) A kothari situated in Mohalla. Rangdi in the city of Bikaner, which was being used as a motor garage, to be utilised after her death by creating and registering a trust in the name of her husband & father-in law for educational, charitable or religious purposes.

(ii) The rents and profits of the shop and other properties in Forbesganj shall be utilised for the running of any institution established as aforesaid.

2. Stridhan: It comprised of gold and silver ornaments, utensils, jwellery, gold coins, cash, currency notes, shares and Government securities kept in Chest and almirahs in the lower room of her residential house, with their keys to kept in the safe deposit vault of the Bikaner Bank with the direction that the keys shall be delivered to the executors of the will, namely, Champalal Banthia and Laherchand Sethia The said executors were directed to sell the aforesaid stridhan property & distribute the sale proceeds as follows:

4. About Rs. 8,600/- were directed to be paid to various persons named in the will. Of the remaining amount;

(i) 1/2 to two sons and two daughters of her predeceased daughter Bhanwari Bai. A trust shall be created of this amount and the income thereof shall be divided between the aforesaid four childern. In case of their death, the amount was to be utilised in charitable and religious purposes

(ii) 1/2: (a) 3/16 shall be given to Chorulal.

(b) 1/16 to Jawahar Vidhya Peeth Library, Bhinasar for the purpose of publication of books in her name.

(c) 4/16 to be spent on the trust created in the kothari as aforesaid or for construction of a new building and for purchase of furniture for the purposes of the said Trust.

3. Four bundles of jewellery: These were to be kept by her separately in a safe deposit vault to be given to the children of her daughter.

4. The funeral expenses: Rs. 20,000/- were deposited in the Bank for the purpose of her funeral rites and other ceremonies consequent upon her death.

5. Property reserved for grand-daughter. (a) Kanchan Bai was given one Ora and Miliya; (b) Kamlabai was given two maliyas which were directed to be allowed to continue in their possession

5. The aforesaid will was deposited with the District Registrar, Bikanner. After her death, he opened the said will on or about 8th June, 1957. The petitioner alleges that in compliance with the directions given in the will the executors per firmed the funeral ceremonies out of the funds allotted for the purpose by the testatrix herself. The executors also prepared the inventory of the properties, sold most of them and deposited the sale proceeds in the Banks. The remaining valuables were deposited in the lockers in the bank under the control of the executors. They have also paid the estate duty. The movables and cash of the grand children have been deposited in the banks. The other beneficiaries named in the will have been paid the amounts stated in the will. Thus, most part of the will has been executed. But the petitioners want a probate in order to carry out all the directions and to give complete effect to the will

6. The value of the properties left by Mst. Raj Kanwari was valued at Rs. 1,50,000 and all by the Tehsildar, Bikaner, vide his Setter dated 27-4-1964. The valuation put by the Collector is between Rs. 11.15 lacs.

7. It appears that the executors also created a trust as envisaged in the will, which was also registered by the Devsthan Commissioner and upon his directions the Assistant Commissioner Devsthan by his order dated 12 4-72 valued the property at 70 lacs. In respect of this matter, I am informed that a suit is already pending in a civil Court.

8. Upon citation being issued, Chorulal, the said adopted son of Mst. Rajkanwari, filed caveat challenging the veracity of the will, and claiming that Mst. Rajkanwari had no right to dispose of the property as the property vested in him right from the day the succession opened. Upon his contentions, this court framed the following two issues on 8-1-76, namely:

(1) Whether caveator Chorulal was validly adopted by Mst. Rajkanwari on 12-2-51 to her husband Dalchand?

(2)(a) Whether Mst. Rajkanwari executed the will dated 5-7-51?

(b) Whether Mst. Rajkanwari executed the will while she was in sound disposing mind?

3. Relief?

9. The District Judge, Bikaner was directed to record evidence on these issues. The District Judge submitted the record of evidence to this court on 28 6-76.

10. One Banshilal Maloo had applied for being made a party to these probate proceedings. But his application was rejected by this court as early as 31-7-70. The Commissioner of Wealth Tax, Rajasthan also tried to get in to the tray. But his application wa3 rejected by this court on 13-7-77.

11. Banshilal has made yet one more application on 14-7-76 purporting to act on behalf of the Devasthan Commissioner. He prayed that the Devasthan Department is a necessary party and he should also be impleaded in these proceedings. I have heard his counsel Shri Kewalchand. The Devsthan Commissioner has not cared to make any such application, nor has he authorised Banshi Lal to make an application on his behalf. Banshi Lal has produced a copy of the letter dated 12-5-76 issued by the Devasthan Commissioner, Udaipur to Banshilal that he had an interest in the trust, and he could take necessary proceedings in the concerned courts. Another is a copy of the letter dated 18 5-76 issued by the Assistant Commissioner, Devasthan, Jodhpur that Banshilal was permitted to proceed under Section 38 of the Rajasthan Public Trust Act, 1959. In none of these two letters, (even if they were genuine) the Devasthan Commissioner has authorised Banshi Lal to pray on his behalf for being impleaded in these proceedings. The Devasthan Commissioner is a corporation sole having perpetual succession and a common seal, and is authorised to sue and be used in the corporate name. There is nothing to prevent the said Devsthan Commissioner from making an application, if he wanted to join in these proceedings and further from issuing proper authority for this purpose to proper person. It even appears to me that the Devsthan Commissioner comes into picture only on account of the disposition in the will. Now, simply because a trust has been created out of some properties of the deceased and simply because Banshilal apprehended that the so called executors and other persons are trying to cheat the public of the benefit of the trust, he cannot be permitted to double in these proceedings.

12. I, therefore, reject his application for impleading the Devsthan Commissioner. The learned Counsel for Banshilal wanted time for producing proper authority from the Devasthan Department. Such a request cannot be granted at this stage and is also rejected, I now proceed to examine whether a probate should be granted or refused.

Issue No. 1

13. The first point that has been considered in this respect is whether the caveator can prove his adoption in these proceedings. In Ishwardeo Narain Singh v. Smt. Kamla Devi and Ors. : AIR1954SC280 , it was held that the court of probate is only concerned with the question as to whether the documents put forward is the last will and testament of a deceased person, was duly executed and attested in accordance with law and whether at the time of such execution the testator had sound disposing mind. The question whether a particular bequest is good or bad is not within the purview of the probate court.

14. In I.M. Madhavi v. Sree Rama Varma : AIR1969Ker256 , it was observed that it is not usual in these proceedings to decide the question of title in respect of the property dealt with by the will. In D.S. Sriramiah Setty v. Smt. D. Kanthamma AIR 1971 Mys 148 it was observed that it must be taken as well settled that the person claiming the property by paramount title or adversely to the testator or disputing testator's right to deal with the property sought to be disposed of by the will in respect of which probate or letters of administration with the will annexed is asked for has no locus standi to enter a caveat. It was, however, added that since the caveator in the case claims to be the nearest intestate heir of the testator, she must be held to have sufficient interest to maintain the caveat as in such a case the grant of the letters of administration of the will would displace the right to which she would be otherwise entitled. G. Jayakumar v. R. Ramaratnam : AIR1972Mad212 , maintained more clearly that the interest of justice requires that any person having even the slightest interest in the proceeding of the kind, should be encouraged to intervene and assist the court in arriving at proper and just decision before the court grants probate with far reaching consequences upon the valuable rights of the citizens. Thus, under Section 283 of the Indian Succession Act, 1925 it appears that a person having the slightest interest in the estate of the deceased is entitled to a citation to come & see the proceedings before the grant of probate or letters of administration Section 295 of the said Act, further provides that when there is a contention, the proceedings shall take the form of a regular suit in which the petitioner shall be the plaintiff and the caveator shall be the defendant, according to the Code of Civil Procedure, 1908. It follows, therefore, that the caveator shall be entitled to prove his interest and also to disprove the genuineness and validity of the will, though a decision in the probate proceedings will not operate as res judicata. Therefore, the caveator can prove his interest claimed on the basis of adoption.

15. The witnesses produced by the caveator, namely. Ramlal Banthia DW 1, Ram Singh Kochar DW 2, Jatan Mal Mallco IW 3, Chouru Lal DW 4, Champa Lal Banthia P.W. 1, and Ajaipal PW 2 one of the beneficiaries of the will have deposed that the caveator Chorulal was the adopted son of Mst. Raj Kanwari. There is no other evidence to the contrary. Thus, the issue No. 1 is decided in favour of the caveator that Chorulal was validly adopted by Mst. Raj Kanwari on 12-2-51.

Issue No. 2 {a) & (b):

16. Choru Lal has stated that the signatures on the will Ex 1 are not that of his mother Mst. Raj Kanwari and that on the alleged date of the will she was suffering from diseases of respiration and blood pressure. Champa Lal, executor, PW. 1 has examined himself He has deposed that the will Ex. 1 contained his signatures at A to C and he had attested the will at the instance of Mst. Raj Kanwari. This is the only evidence that has been tendered in proof of the alleged will. According to Section 63 of the Indian Succession Act, 1925, every testator shall sign or shall affix his mark to the will or it shall be signed by some other person in his presence and by his direction. The Will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the will or has seen some other person sign the will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgement of his signature or mark or of the signature of such other person. Each of the witnesses shall sign the will in the presence of the testator but it shall not be necessary that more than one witness be present at the same time, and no particular from of attestation shall be necessary.

17. Section 68 of the Evidence Act provides that if a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution if there can been attesting witness alive, and subject to the process of court and capable of giving evidence

18. Campa Lal Banthia is no doubt one of the attesting witnesses of the will but he has not deposed that he had seen the testatrix sign the will or had received from her personal acknowledgement of her signatures. What he deposed is that he attested the will at the asking of Mst. Rajkanwari This does not even amount to an implied acknowledgement on her part that the will had been signed by her He has said nothing absolutely about the conditions of her mind at the time the she made the alleged will His evidence does not prove the will. The issue No. 2 therefore, is decided against the petitioner.

Issue No. 3:

19. The result of the aforesaid finding is that the will having not been proved according to law no probate can be granted.

20. This petition, therefore, fails. There shall be no order as to costs.


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