1. This appeal arises out of an application for Probate of the Will of one Judhistir Haldar dated the 21st January, 1913 and is on behalf of the petitioners who propounded the Will against the order of the District Judge of the twenty-four Perganas, dated the 21st January, 1924 by which the petition for Probate was refused. The application for Probate which was made by four out of the five executors named in the Will was opposed by the daughters of the testator Judhistir, by the sons of one of the daughters and also by one of his sons-in-law. The objectors, amongst other matters, stated that the instrument propounded by the petitioners was not a Will on the face of it; and an issue was raised as to whether the document propounded was a Will at all. This issue was tried as a preliminary issue and the learned District Judge without going into the evidence and deciding the other issues which arose in the case found in favour of the objectors on this issue and dismissed the application for Probate. Hence their appeal.
2. The only question which arises before us in this case for consideration is whether the document alleged to have been executed by Judhistir Mandal was a testamentary deed or a deed of transfer inter vivos as was held by the learned District Judge. The learned Judge really based his judgment, to use his own words, on this ground; ' It is true that he', that is Judhistir, 'thought that he was nearing the end and he wished to make a disposition of his properties; but by the deed he declared that the dedication was to take effect from the date he executed the deed and he appointed himself the first shebait. He fixed the manner of succession to the office of the Shebait, No 'doubt there are certain legacies to be paid after his death by the executors; but such a provision is in conflict with his dedication to the idol'. The learned Advocate for the respondents has also relied upon this argument in support of the decision of the Court below.
3. Now, the true rule to be followed in considering a deed in cases like this was laid down by their Lordships of the Judicial Committee in the case of Thakur Ishri. Singh v. Thakur Baldeo Singh 10 C. 792 : 11 I.A. 135 : 8 Ind. Jur. 331 : 4 Sar.P.C.J. 528 : Rafique & Jackson's P.C. No. 79 : 5 Ind. Dec. (N.S.) 531 (P.C.) and also in the case of Udai Raj Singh v. Bhagwan Bakhsh Singh 6 Ind. Cas. 279 : 32 A. 227 : 7 A.L.J. 274 : (1910) M.W.N. 110 : 11 C.L.J. 387 : 14 C.W.N. 641 : 7 M.L.T. 410 : 12 Bom.L.R. 409 : 20 M.L.T. 458 : 13 O.C. 172 : 37 I.A. 46 (P.C.). In the first mentioned case, their Lordships, after discussing the provisions of the deed at page 801 stated as follows: 'Mr. Woodroffe in his argument relied very strongly upon the use of the Word ' assign' and upon the reservation of; a life-interest to the donor. No doubt both those circumstances tend towards the conclusion to which Mr. Woodroffe wished to lead their Lordships, but they are by no means conclusive. If they had been the words of an English conveyancer preparing an English instrument, they would Wave afforded a very strong argument: but the instrument was prepared by Lal Sunder, and we must not construe with too great nicety, or assign too much weight to the exact words that he uses for a transfer of property, as if he were accurately weighing the difference between a testamentary instrument and one operating inter vivos. We must remember that Wills are comparatively new in any part of India, and are of more recent introduction in Oudh in respect of this class of property. So with respect to the reservation of a life-interest. The Will being not a very familiar instrument to the people who prepare it or who sign it, the testator often does express a great anxiety that he shall not be considered to have parted with anything in his lifetime, and their Lordships have seen here instruments, which most unquestionably were Wills, and intended to operate as such, in which nevertheless there have been expressions upon the face of them intimating that the testator intends to remain the owner of his property until he dies'. In the latter case, their Lordships following the same principle stated that in a case like this not only the words actually used in the deed should be considered but also the circumstances should be taken into consideration and the matter ought to be broadly looked at. Now, bearing those principles in mind, let us see what are the circumstances here in the present case. Judhistir was apparently an old man and was apprehending imminent death. He was anxious that there should be rules laid down for the disposition of his properties after his death. In the circumstances as he himself stated that there was in his mind an apprehension of his imminent death, it was not possible that he would either enjoy the property or use it in a particular way. The learned Judge, as I have already pointed out, states that there are conditions in the deed which are clearly testamentary. The sole question, therefore, is ' Was the whole object of the deed frustrated by the use of the words upon which the learned Judge has relied?' Applying the principles laid down in the cases referred to, I think it was not. Judhistir was a substantial cultivator living in the interior of the district. He had no legal help in drawing up the instrument. It appears from the clause in the deed relied upon by the District Judge and also by the learned Advocate for the respondents that the anxiety of the testator was that after his death there might be dispute as to the future disposition of his properties and, therefore, he thought--though erroneously no doubt that, unless he used those words, future dispostion of his properties would be in danger. Clearly, those words were not used for the purpose of making any inter vivos disposition which would come into operation during his lifetime and they should not, in my opinion, be read as tending to frustrate his very object. It is not a; question of mere construing the words used in the deed; but it is a question whether, under the circumstances of the case, we can read these words as used with any other object than that of strengthening the disposition as by a Will. On the whole taking a broad view of the matter. I think the testator was really laying down rules for the disposition of his properties after his death and not making any immediate disposition of the same. There are other circumstances which also lend support to this view. The deed was not drawn up on a stamped paper as it would have been if it was a deed of dedication. Throughout the deed is spoken of as a Will. It appointed executors and it was registered as a Will. Therefore, there can be no doubt as to what the object of the executant of the document was. Bearing that in mind, I do not think that the use of the word 'dedication' should be given effect to in the sense in which it is ordinarily used in the same way as their Lordships of the Judicial Committee refused to give effect to the word ' assign' which was clearly used in the deeds which their Lordships had to consider in one of the cases cited. On these grounds, I think that the view taken by the learned District Judge of the nature of the instrument was not correct. In my opinion the decree of the lower Court should be set aside and the case should be sent back to that Court for trial of the other issues raised. The appellants are entitled to their costs in this appeal--the hearing fee being assessed at three gold mohurs. The costs incurred by the parties in the lower Court as well as those to be incurred at the fresh trial will abide the result.
4. I agree.