A document that does not contain a disposition of property, but only appoints a successor to a certain office, cannot be regarded as a Will.

Kanhaiya Singh, J.

1. This is an appeal from the judgment and order of the Additional District Judge, Arrah, dated 25th July, 1956, refusing to grant a probate of the Will of Mahanth Banwari Das. The propounder of the Will is Ram Nath Das, who claims to be the Chela of the testator. The Will is a registered instrument and was executed on 3rd July, 1940. Mahanth Banwari Das, the testator, died six years after the execution of the Will on 17th July, 1946. The present application for probate was filed on 30th November, 1953. The case of the propounder is that the Will in question was the last Will and testament of Mahanth Banwari Das, that it was duly executed by him and attested by other witnesses, that he had been appointed executor under the Will and that by this Win Mahanth Banwari Das appointed him his successor and also directed that on his death he would enter into possession of the entire properties and assets of the Kutias.

2. Ram Nagina Choubey, Ram Bhawan Das and Raj Kumar Das preferred objections to the grant of the probate. Ram Nagina Choubey claimed to be the successor of the late Mahanth. The other two objectors, Ram Bhawan Das and Raj Kumar Das, claimed to be the Mahanths, respectively, of Sikrahata Math and Dhangawan Math. Their common objection is that the Will propounded by the applicant was a forged and fabricated document and was not executed by the late Mahanth Banwari Das. They further pleaded that at the time of the execution of the Will Mahanth Banawari Das was not in full possession of his mental faculties and was not in sound disposing mind and, therefore, it cannot be said to be a voluntary act of the testator. Their another objection was that the properties demised by the Will are the properties belonging to the deities and did not constitute personal properties of the late Mahanth, and, therefore, he had no power to dispose of the properties of the deities by Will or otherwise. The special plea entered by Ram Bhawan Das and Raj Kumar Das is that the Maths of which they are the Mahanths are separate, and the properties attaching to those Maths did not belong to the late Mahanth and did not appertain to the Mathia of which he was the Mahanth.

3. The learned Additional District Judge held that the Will was not genuine and was not executed by the late Mahanth Banwari Das and that the entire transaction was pregnant with grave suspicion. He further held that the Will propounded by the applicant was not the last Will of the late Mahanth. He also expressed the view that the properties covered by the Will belonged to the deities and Banwari Das was merely the manager or shebait and, therefore, was not competent to transfer those properties by Will. He further held that the alleged Will, even if it be genuine, was, in the eye of law, not a Will and could not be admitted to probate, because by this Will the properties were in fact not disposed of, but only a successor was appointed. He accordingly dismissed the application and refused to grant probate of the Will. Now, the applicant has come up in appeal.

4. Learned counsel for the appellant contended that the finding of the learned Additional District Judge that the Will was not genuine was against the weight of evidence on the record and showed lack of appreciation of the evidence by him. He took us through the evidence, and having heard the learned Advocates and considered the evidence carefully, I think, this contention is substantial and must be accepted as correct.

5. Four witnesses were called by the applicant to prove the execution and attestation of the Will (exhibit 5), namely, Tilak Dhari Rai (P. W.1 ). Rafique Khan (P. W.3), Pradumna Upadhya (P. W.4)) and the applicant, Mahanth Ram Nath Das (P. W.6 ). P. W.3 is the scribe of the Will and P. Ws.1 and 4 are two of the attesting witnesses. Their evidence establishes beyond doubt that P. W.3 scribed the Will, and after it was written out, the contents were read over and explained to Mahanth Ban