JUDGMENT - D.R. DHANUKA, J.:---Shri Hansraj Jeewandas Thacker (hereinafter referred to as 'the deceased') died at Bombay on or about 5th day of December 1981. Shri Pradeep Kantilal Shroff has filed Petition No. 766 of 1984 for issue of letters of administration alongwith 'Will annexed' of the deceased being the document Exhibit 'A' to the petition. The document Exhibit 'A' to the petition is the document in dispute. One Nirupa Manilal Thacker has filed a Caveat opposing the grant sought for by the petitioner on various grounds. The following preliminary Issue is required to be considered and decided by the Court's :

Preliminary Issue :

Whether the document Exhibit 'A' to the petition is a Will?

2. It is necessary to consider as to whether the document Exhibit 'A' to the petition is liable to be considered as 'Will' within the meaning of section 2(h) of the Indian Succession Act, 1925. If the Court comes to the conclusion that the impugned document on it's construction does not amount to 'Will' within the meaning of section 2(h) of the said Act, the petition would fail on this ground alone. For the purpose of examining the abovereferred contention, it shall have to be considered as to whether the language of the relevant part of the document is plain or whether the same is ambiguous so as to provide scope for leading oral evidence as desired by the petitioner. If the language of the document Exhibit 'A' to the petition is unambiguous on fact of it, the parties are not entitled to lead oral evidence in an attempt to vary the plain meaning of the language used in the relevant part of the document.

3. Section 2(h) of the Indian Succession Act, 1925 defines the expression 'Will' as under:

"`Will' means 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." (The underlining is done to supply emphasis).

It is well settled that the essential characteristics of a Will are that the disposition must operate after the death of the testator and it should be revocable during the life of the testator. A document which is plainly intended to operate immediately on it's execution can never be construed as a Will. Such a document providing for disposition of assets in praesenti must necessarily operate as a non-testamentary document.

4. With the above preface, I shall summarise the material facts before I extract the document in dispute for the purpose of determination of preliminary issue as to whether the document amounts to a Will or not.

5. On 6th July 1963, the deceased made a Will and deposited the same with his Solicitors M/s. Mulla Mulla and Cragie Blunt and Caroe. The deceased deposited the same document dated 6th July 1963 with Shri Jaswant, P. Thacker, Partner of M/s. Mulla Mulla and Cragie Blunt Caroe. Shri Jaswant P. Thacker has filed his Affidavit in this Court, being Affidavit dated 13th September 1984 stating therein that on 30th day of January 1979, the deceased had attended his Office and at his request, the said Will dated 6th July 1963 was produced for his perusal and the said Will dated 6th July 1963 was thereupon destroyed by the deceased in the presence of the said Shri Jaswant P. Thacker by tearing it off. The Court is not directly concerned with the alleged Will dated 6th July 1963 in this petition.

6. On 8th July 1963, M/s. Mulla Mulla and Cragie Blunt Caroe had issued receipt in favour of the deceased to the effect that the said Firm had received original Will dated 6th July 1963, presumably as a document deposited with the said Solicitors for safe custody. It is the case of the petitioner that on 30th December 1978, the deceased had made an endorsement on the original receipt dated 8th July 1963. The said endorsement reads as under :

'From this day 30th December 1978 all the contents of my Will dated 6th July 1963 original lying with M/s. Mulla Mulla as per their receipt dated 8th July 1963 and as from today the 30th Decembe

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