1997 Supreme(MP) 393

High Court Of Madhya Pradesh
TEJ SHANKAR
CHANDAN - Appellant
Versus
LONGA BAI - Respondents
C. F. A. 169 Of 1995
Decided On : 07/14/1997

A Will is a legal declaration of the intention of the testator with respect to his property which he desire to be carried into effect after his death.

Headnote:

PUBLIC TRUST - WILL - CREATION - REVOCATION - REGISTRATION - PUBLIC TRUST ACT, 1951 - SECTIONS 4, 5, 8, 11 - INDIAN SUCCESSION ACT, 1925 - SECTIONS 63, 68, 71 - EVIDENCE ACT, 1872 - SECTIONS 68, 71 - TRANSFER OF PROPERTY ACT, 1882 - SECTION 3 - HINDU LAW - WILLS - ATTESTATION - PROOF - SUSPICIOUS CIRCUMSTANCES - BURDEN OF PROOF - PUBLIC TRUST - CREATION BY WILL - REGISTRATION - TIME LIMIT - WAIVER OF NOTICE - SECTION 80, CODE OF CIVIL PROCEDURE, 1908.

Fact of the Case:

Plaintiff filed a suit for cancellation of the order passed by the Registrar and for declaration that the property in suit is a public trust and the Registrar be directed to register it as a Public Trust. The original defendant Harbo Bai pleaded that under Sections 8 and 12 of the M. P. Public Trust Act, the State of Madhya Pradesh was the necessary party. The State of M. P. and the trustees were necessary parties and the suit was liable to be dismissed for non-joinder. The suit for mere declaration under Section 8 was not maintainable. The suit was filed beyond time as provided under Section 11 of the M. P. Public Trust Act. The provisions of M. P. Public Trust Act were not applicable at the time of execution of the Will dated 16-12-1949, as the Act was not in force. The Will dated 16-12-1949 had been cancelled by subsequent document 13-11-1956. Even the trustees did not accept the Trust. Ajudhya Prasad was the sole owner of the property in dispute. Pyare Lal had two sons - Panna Lal and Ajudhya Prasad. The property belonged to Panna Lal, who had adopted Mool Chand. Mool Chand died during the life time of Panna Lal, leaving his widow i. e. the defendant and daughter Longa Bai. As the defendant was the Pardanaseen lady, the entire work was being looked after by Ajudhya Prasad. The defendant and her daughter Longa Bai were the sole heirs and legal representatives of Panna Lal. Ajudhya Prasad had no right to execute the Will and that is why he concealed that truth.

Finding of the Court:

1. The Will dated 15-12-1949 executed by Ajudhya Prasad was proved and established to have been executed by him. 2. The document dated 13-11-1956 alleged to have been executed by Ajudhya Prasad was not proved in accordance with law and was surrounded by suspicious circumstances. 3. The Will dated 15-12-1949 was the last will of the executant and the natural consequence of that Will had to flow. 4. A public trust was created by Ajudhya Prasad under the Will of the year 1949 and the property was given to the dharmshala, which was named by him as 'dharmshala Panna Lal Ajudhya Prasad'. 5. The Public Trust was created under this document and came into effect after the death of the executor i. e. Ajudhya Prasad. 6. The Registrar's order dated 14-7-69 was set aside as the finding that the Will dated 15-12-1949 stood cancelled by the will dated 13-11-1956 was based on the Will dated 13-11-1956 which was not proved in accordance with law and was surrounded by suspicious circumstances.

Issues: 1. Whether the Will dated 15-12-1949 executed by Ajudhya Prasad was proved and established to have been executed by him? 2. Whether the document dated 13-11-1956 alleged to have been executed by Ajudhya Prasad was proved in accordance with law and was surrounded by suspicious circumstances? 3. Whether the Will dated 15-12-1949 was the last will of the executant and the natural consequence of that Will had to flow? 4. Whether a public trust was created by Ajudhya Prasad under the Will of the year 1949 and the property was given to the dharmshala, which was named by him as 'dharmshala Panna Lal Ajudhya Prasad'? 5. Whether the Public Trust was created under this document and came into effect after the death of the executor i. e. Ajudhya Prasad? 6. Whether the Registrar's order dated 14-7-69 was set aside as the finding that the Will dated 15-12-1949 stood cancelled by the will dated 13-11-1956 was based on the Will dated 13-11-1956 which was not proved in accordance with law and was surrounded by suspicious circumstances?

Ratio Decidendi: 1. A Will is a legal declaration of the intention of the testator with respect to his property which he desire to be carried into effect after his death. 2. In order to constitute a Will, there must be a desire of the testator that the declaration should be effected after his death. 3. The desire of the testator to give up the ownership of the property after his death is also an essential constituent of a Will. 4. Under the Indian Succession Act, the "will" means the legal declaration of the intention of the testator with respect to his property which he desire to be carried into effect after his death. 5. A document is a Will if it contains all the specific words of bequeathed to be given effect to after the death of the testator. 6. Whenever the Will is claimed, it must be shown that there is no room for suspicion that it does not express the mind of the trustee. 7. The essential ingredients for creation of valid trust under Section 6 of the Indian Trusts Act are (I) an intention on his part to create thereby a trust; (ii) the purposes of the trust; (iii) the beneficiary; and (iv) the Trust property and transfer the trust property to the trustee. 8. Under Section 63 of the Indian Succession Act, a provision has been made for attestation of a Will. This section makes a specific provision for the attestation of a Will and requires that it was necessary to prove the will by calling the attesting witness. 9. Under Section 68 of the Indian Evidence Act, atleast one attesting witness is required to be produced if a document is required to be attested. 10. The word 'attested' has been defined in Section 3 of the Transfer of Property Act as follows: "attested".- "attested", in relation to an instrument, means and shall be deemed always to have meant attested by two or more witnesses each of which has seen the executant sign or affix his mark to the instrument, or has seen some other person sign the instrument in the presence and by the direction of the executant, or has received from the executant a personal acknowledgement of his signature or mark, or of the signature of such other person, and each of whom has signed the instrument in the presence of the executant; but it shall not be necessary that more than one of such witnesses shall have been present at the same time, and no particular form of attestation shall be necessary." 11. Under the aforesaid provision, it is necessary that the person relying upon the document must establish that the executant had signed or put thumb impression before the attesting witnesses and the attesting witnesses must sign in the presence of the executant. 12. Section 11 of the M. P. Public Trust Act, 1951, provides for public trust by Will. It has been provided that in case of the public trust which is created by a will, the executor of such will shall within one month from the date on which the probate of the will is granted or within six months from the date of the testator's death, make an application for the registration of the Trust in the manner provided in Section 4 of the Act.

Final Decision: Appeal allowed. The Judgment and Decree passed by the Court below as well as the Order of the Registrar are set aside. It is declared that the disputed property is a Public Trust. Under the circumstances, the parties are left to bear their own costs.