9911796707
TMI Blog1966 (3) TMI 91X X X X Extracts X X X X X X X X Extracts X X X X ..... nd the temple standing on it to Thakorji and carried on management of the temple and performed worship of Thakorji as a Shebait, It appears that some part of the property constructed on the land was let out and income was being received from tenants in respect of such part and the deceased took the entire income consisting of rent and offerings for himself and maintained, himself out of such income. The deceased already had one wife, but he took another wife named Bai Zabu on 20th December 1946. Thereafter he made a will dated 5th November 1947 disposing of in favour of the applicant who was initiated by him as his Chela during his life time, the right to manage the temple and to worship Thakorji and to take the income of the temple including rent and offerings for his own maintenance. The will was signed by the deceased in the residence of two witnesses, namely, Bhikhalal Oghabhai and Govubha Zhala who attested the signature of the deceased on the will. The deceased thereafter died some tine in 1949. Now at the date of the death of the deceased the applicant who was the universal legatee under the will of the deceased was a minor and he, therefore, after attaining majority made th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the District Judge as delegate to grant letters of administration only in non-contentious cases and if in a case before the Civil Judge, Senior Division, a contention is raised, the Civil Judge, Senior Division , must return the application with any document which may have been filed along with it to the person by whom the application was made in order that the same may be presented to the District Judge under Section 288, reading Sections 265 and 288 together it is manifest that a civil Judge, Senior Division, cannot grant letters of administration in a case where a contention is raised against the grant of letters of administration. But the Saurashtra District and Subordinate Civil Courts ordinance, 1948 by Section 28-A Sub-section (1) provided that the High Court may be general or special order invest any Civil Judge, within such local limits and subject to such pecuniary limitation as may be prescribed in such order, with all or any of the powers of a District Judge or a District court as the case may be under the Indian Succession Act, 1925, and in exercise of the powers conferred under this Section the High Court of Saurashtra issued a Notification dated 30th July 1948 e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llacious and cannot be sustained. Will is defined in Section 2(h) of the Indian Succession Act to mean 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. It is, therefore indisputable that the instrument which is sought to be propounded as a will must contain the legal declaration of the intention of the testator with respect to his property. If what is sought to be disposed of by the deceased by the instrument in question is not property, the instrument in question is not property, the instrument cannot be regarded as a will it, therefore, becomes necessary to inquire, whether the right which was sought to be disposed of by the deceased by the instrument sought to be propounded as a will was property. Now we turn to the instrument we find that the did not purport to dispose of either the temple or the land on which the temple stood. The recitals contained in the instrument showed that both the temple and the land on which the temple stood were dedicated by the deceased to Thakoji and that they were, therefore, properties belonging to Thakoji as a deity. The decease was merely a shebait hav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... if any authority were needed, it is to be found in the decision of the Supreme court in Angurbala Mullic v Debabrata Mullick [1951]2SCR1125 where dealing with the question whether Shebaitship was heritable property, Mukherija, J. Speaking on behalf of the Supreme Court observed: In Hindu religious endowment on the other hand the entire ownership of the dedicated property is transferred to the deity or the institution itself as a juristic person and the shebait or mahant is a mere manager. But though a shebait is a manager and not a trustee in the technical sense, it would not be correct to describe the shebaitship as a mere office. The shebait has only duties to discharge in connection with the endowment, but he has a beneficial interest in the debutter property. As the Judicial Committee observed in the above case, in almost all such endowments the shebait has a share in the usufruct of the debutter property which depends upon the terms of the grant or upon custom or usage. Even where no emoluments are attached to the office of the shebait, he enjoys some sort of right or interest in the endowed property which partially at least has the character of a proprietary right. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Shebaitship by making a will. The instrument sought to be propounded as a will of the deceased, therefore, comes within the definition of will as given in Section 2(h) of the Indian Succession Act and if the due execution of the will can be said to be established by the applicant the grant of letters of administration with a copy of the will annexed must be made to the applicant. (4) That takes us to the last, contention which was debated before us, namely whether on the evidence on record the applicant could be said to have established due execution of the will. Now there is no doubt that the burden of establishing due execution of the will is on the person who propounds the will and the person propounding the will must satisfy the conscience of the Court that the instrument in question is the last will and testament of the deceased. The applicant for the purpose of establishing due execution of the will filed the affidavits of several witnesses, two of whom are material for the purpose of the present appeal and they are Ritlala Chhotalala and Govibha Zhala. Ratilala Chhotalala stated in his affidavit that he had prepared the original will under the instructions of the dece ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... law. This contention raises a question of considerable importance relating to the procedure to be followed by Judges taking testamentary matters in the districts in contentious cases. There can be no doubt that when a case is a non-contentious one, the Judge hearing an application for probate or letters of administration can act on affidavits. Order 19 Rule 2 of the Code of Civil Procedure provides that upon any application evidence may be given by affidavit, but the Court may at the instance of either party, order the attendance for cross-examination of the deponent. The Judge hearing an application for probate or letters of administration may, therefore, allow evidence to be given by affidavits and acting on such evidence given by affidavits, grant probate or letters of administration and the case becomes a contentious one, this procedure, we are afraid, cannot be followed by the Judge. When a contention is raised, Section 295 of the Indian Succession Act says, the proceedings shall take, as nearly as may be, the form of a regular suit according to the provisions of the Code of Civil Procedure, 1908, in which the petitioner for probate or letters of administration, as the case m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the learned Civil Judge authorising the evidence of witnesses to be given by affidavits and no such order can even be implied for the rule requires reasons and a fortiori the reasons would have to be set out in the order. We are, therefore, of the view that the action of the learned Civil Judge in proceeding on the affidavits of the witnesses and not examining-in-chief the witnesses in Court could not be justified under this rule. But even so we do not think that the trial of the suit was vitiated by any illegality. Though, there may be no provision in the Code authorizing the Court in a case such as this to take the evidence in examination-in-chief of the witnesses by affidavits, it is always open to the parties to agree that a particular affidavit may be treated as evidence in the case and the deponent of the affidavit may be further examined in chief or cross-examined on the statements made in the affidavit. This course was clearly assented to by the parties in the present case and that this assent could be implied from the fact that neither party objected to the affidavits being treated as evidence in the case. The trial of the suit, cannot, therefore, be held to be vitiated d ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
