1991 Supreme(MP) 172

A.G. Qureshi, J.
Ramprasad v. Bherulal
M.A. No. 268 of 1980 (I); Decided on 26.3.1991.

Headnote:Succession Act, 1925 -- S. 2 (h) -- will -- document to operate forthwith of its execution -- cannot be termed as will -- will as defined has to operate after death of its executor -- no probate or letter of administration can be issued on such document.

       mRrjkf/kdkj vf/kfu;e] 1925 & /kkjk 2¼t½ & foy & mlds fu"iknu ls rRdky izofrZr gksus okyk nLrkost & foy ugha ekuk tk ldrk & foy] ;Fkk ifjHkkf"kr] dks mlds fu"iknd dh e`R;q ds i‘pkr~ izofrZr gksuk gksrk gSS & izjkcsV vFkok izca/k i= ,sls nLrkost ij tkjh ugha fd, tk ldrsA

        This miscellaneous appeal is directed against the order dated 11- 8-80 passed by the fifth Addl. District Judge, Indore in Probate Case No. 32 of 1978.

       

        The facts leading to this appeal, in short, are that the appellant filed an application in the Court of the Fifth Addl. District Judge, Indore for obtaining a probate of a Will alleged to have been executed by one Sahodra Bai. The application was resisted by the respondents on the ground that the Will is not genuine and a preliminary objection was also raised that the said Will, on which a probate is being sought, is not a Will because it does not fall within the definition of a Will. The lower Court raised the preliminary issue which was issue No.5 to the effect that whether the disputed document falls within the definition of a Will and held that the document does not fall within the ambit of Will and hence the application seeking probate was dismissed. Hence this appeal.

        The learned counsel for the appellant Shri Trivedi challenges the order of the lower Court on the ground that the learned lower Court has wrongly construed the document for holding that it is not a Will. The document has to be read as a whole and reading of only a few sentences could not lead to a conclusion that the said document was not a will. If the document is read as a whole it will be clear that it was effective only after the death of the deceased.

        On the other hand, the learned counsel Shri Verma has argued that the document cannot be treated as a Will because it was not to operate after the death of the author, but the document itself shows that at the most it is gift and not a Will because it was to come in force immediately as is apparent from the language of the document itself.

       

        In view of the aforesaid contentions of the parties, let us read the disputed document first. The document reads as under:

       ^^okfjr i= fy[k nsus okys ls lksnjkckbZ ifr :ik ikl tkrh lkfdu Hkkstk tlruxj rglhy egw ftyk bankSj okyh gksdj fy[k nsrh gS fd jkeizlkn cYn paikyky tkr ekyh lkfdu ekStk can rglhy egw ftyk bankSj okys dks ,slk fd ;g esjk Hkrhtk ;kus tsB dk yMdk gS] blus esjh lsok djrk vkrk gS] ;g esjk tsB dk yMdk gS blds vykok esjk okfjl ugha gS vkSj tks Hkh esjh ldqur tehu] dqok] ?kj o eksVj oxSjg tks dqN gS ml lHkh dk ekfyd jkeizlkn gh ekfyd vkt rk- ls cuk fn;k gS] ;g okjlkuk i= i{kksa ds le{k cukrh gw¡A ;g eSaus viuh jkth [kq‘kh gks‘k gokys ls fy[k fn;k o fdlh ds dgus ls ugha fy[kk gS] ;g fn;k rks lgh oDr t:jr ij dke vkos rk- 24-10-1974 ferh dqokj lqnh 9 laor 2031**

       From the aforesaid language of the document itself it is manifest that the document was not to operate at a future date and especially after the death of the deceased. According to the language itself it is clear that the appellant Ramprasad was to become the owner of all the property belonging to the author of the document Sahodrabai from the date of the execution of that document. The effect of the document conveying the title to the property of Sahodrabai in favour of Ramprasad is a question which is not before me. However, the language of the document itself even if read as a whole does not say anywhere that it is to operate after the death of the author of the document. Therefore, the document does not fall within the definition of a Will as defined in S. 2(h) of the Indian Succession Act. Wherein it has been provided that the intention of the testator should be in unequivocal terms while executing a document that it should be carried into effect after the death of the testator. Therefore, the essential ingredient of a Will being absent in the document, it could not be treated as a Will and no probate could be issued on the basis of such a document. Therefore, in my opinion, the learned lower Court has rightly held that the document in question is not a Will as required under S. 2 (h) of the Indian Succession Act and, therefore, the proceedings for grant of probate or letters of administration could not lie.

       In the result I find no force in this appeal. It is accordingly dismissed with no order as to costs.