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. 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 December 1978 all my assets are divided as so as under: 50% Pradeep K. Shroff 25% Nalin P. Shroff 25% to Suneel and Chandralekha Shroff and 50% Sd/- 30th December, 1978. The petitioner has produced original receipt dated 8th July 1963 in respect of original Will dated 6th July 1963 containing the said endorsement for perusal of the Court. The petitioner has produced original receipt dated 8th July 1963 in respect of original Will dated 6th July 1963 containing the said endorsement for perusal of the Court. This document is not directly relevant for construing document Exhibit 'A' to this Will. 7. Exhibit 'A' to the petition which is the subject matter of dispute before me reads as under: 'From this date 1st September 1981 all the contents of my Will dated 6th July 1963 original lying with Mulla Mulla as per their receipt dated 8th July 1963 and as from today the 1st September 1981 all my assets are divided so as under : 50% Pradeep K. Shroff. 25% Kaeser K. Shrofff. 25% Suneet and Chandralekha Shroff. 50% 50% Sd/- Hansraj J. Thacker 30th June 1978. Witnesses : Rashesh Mafatlal Vallabh Gopaldas. The petitioner contends that "30th June 1978" was typed by the typist as a result of mistake. The said alleged mistake is of no consequence for determination of preliminary issue. 8. Shri. M.P. Shukla, Advocate for defendants contends that the language of the impugned document is plain and simple and according to the plain tenor of the document it can never be construed as a Will as it purports to affect division of assets belonging to the testator in praesenti with effect from 1st September 1981. The deceased died on 5th December 1981. The learned Counsel for the petitioner contends that the real intention of the testator was to execute writing Exhibit 'A' to the petition as a Will and make the dispositions set out therein operative from the date of death of the testator. The petitioner invites the attention of the Court to the fact that the said document is attested by two witnesses and that it refers to the earlier Will dated 6th July 1963. As regards the underlined portion of the document is concerned, the petitioner submits that the said document should be construed to mean that the original Will dated 6th July, 1963 was amended with effect from 1st September, 1981 and not that the assets were divided by the testator with immediate effect. To my mind, it is impossible to accept the submissions of the petitioner. The Court cannot rewrite the Will. The Court cannot speculate regarding the so called actual intention of the testator and ignore the intention of the testator as expressed in the document. To my mind, it is impossible to accept the submissions of the petitioner. The Court cannot rewrite the Will. The Court cannot speculate regarding the so called actual intention of the testator and ignore the intention of the testator as expressed in the document. The learned Counsel for the petitioner submits that the petitioner is entitled to lead evidence, both oral and documentary, and show that the deceased intended that the said document in dispute should operate as a Will i.e. as a testamentary disposition from the date of death of the deceased. The learned Counsel for the petitioner further submits that petitioner shall be able to show by oral evidence, if permitted to be led, that the parties themselves treated the impugned document as a Will at some stage. In view of the plain language of the document Exhibit 'A' to the petition, I have remained unconvinced with the submissions made on behalf of the petitioner. The testator has divided his assets with immediate effect i.e. 1st September, 1981. 9. Large number of authorities were cited by the learned Counsel for the petitioner. With respect to the research done by the learned Counsel appearing for the petitioner, I have reached the conclusion that the question before the Court is far too simple and the authorities cited are by and large irrelevant. I, therefore, do not propose to refer to all the authorities cited at the Bar. I shall however refer to a few authorities cited at the Bar on either side. In the case of (Rambhat v. Lakshman)1, I.L.R. 5 Bom. a Hindu by an instrument had provided as follows : 'As long as I live I take the profits and you should maintain me as if I were one of the members of your family. I have no ownership therein, the ownership belongs to you from this day. Whatever property there may be after my death other than that described above is all given to you.' A Division Bench of our High Court held in this case that the instrument was not a Will but a conveyance. In the present case the document in dispute states that 'as from today the 1st September, 1981 all my assets are divided ...'. It is too obvious to me that the document is intended to operate with immediate effect i.e., from 1st September, 1981 and is not revocable. In the present case the document in dispute states that 'as from today the 1st September, 1981 all my assets are divided ...'. It is too obvious to me that the document is intended to operate with immediate effect i.e., from 1st September, 1981 and is not revocable. This fact is expressly stated in the document in dispute in so many words. The said document was executed by the testator on 1st September, 1981 and the disposition of assets is made effective or purported to be made effective from the very moment of execution thereof. It is irrelevant that the document contains signature of two witnesses. Even a non-testamentary instrument may be attested by two witnesses. It is also irrelevant that the said document is neither stamped nor registered. Mere reference to earlier Will dated 6th July, 1963 in the opening part of disputed writing dated 1st September, 1981 does not carry the matter further. 10. In (Rama Swami Naidu and another v. Gopal Krishna Naidu and others)2, A.I.R. 1978 Madras 54, it was held by the High Court of Madras that the main test to be applied in such case is to find out as to whether the disposition of interest in the property is in praesenti in favour of the settlees or whether the disposition is to take effect on the death of the executant. It was held by the High Court of Madras that if the disposition was to take effect on the death of the executant it would be a Will. It was further held in this case that if the executant divested himself of his interest in the property and vested his interest in praesenti in the settlee, the document will be a settlement. 11. In (Loke Nath Mukherjee and another v. Abani Nath Mukherjee and others)3, A.I.R. 1941 Calcutta 68, the Division Bench of the High Court of Calcutta observed that the Court had no power to give effect to a hypothetical intention by supplying lacunae in the Will and thereby making a new Will for the testator. The Division Bench further held that the Court cannot speculate as to what the testator may suppose to have intended to write. 12. The Division Bench further held that the Court cannot speculate as to what the testator may suppose to have intended to write. 12. Shri M.H. Shah, the learned Counsel for the petitioner submitted that the Court ought to look into surrounding circumstances and give an opportunity to the petitioner to lead evidence to show what the testator really intended when he used the expression in the document in question to the effect 'as from today the 1st September, 1981 all my assets are divided.' The learned Counsel Shri Rajiv Kumar supplemented the submissions of Shri M.H. Shah with the leave of the Court as Shri Shah was not available on next day of the hearing. Shri Rajiv Kumar emphasises the fact that two witnesses had placed their signatures on the document Exhibit 'A' to the petition as would be done in the case of a Will. Mere signature of two witnesses without anything more does not create any ambiguity. 13. The learned Counsel for the petitioner invited attention of the Court to the judgment of the Hon'ble Supreme Court in the case of (Gnambal Ammal v. Raju Iyer and others)4, A.I.R. 1951 Supreme Court 103. To my mind, this judgment does not support the case of the petitioner at all. In this case, B.K. Mukherjee, J., speaking from the Bench of the Hon'ble Supreme Court inter alia observed as under : 'The cardinal maxim to be observed by the courts in construing a Will is to endeavour to ascertain the intention of the testator and the intention had to be gathered primarily from the language of the document which is to be read as a whole, without indulging in any conjecture or speculation as to what the testator would have done if he had been better informed or better advised.' It was held by the Apex Court that the Court must ascertain meaning of the language of the Will and carry out the intention of the testator as expressed and none other. These observations were made by the Hon'ble Supreme Court in a case where there was no controversy like the one in the present case. The Hon'ble Supreme Court laid down the principles to be applied by the Court for the purpose of construing a Will. These observations were made by the Hon'ble Supreme Court in a case where there was no controversy like the one in the present case. The Hon'ble Supreme Court laid down the principles to be applied by the Court for the purpose of construing a Will. To my mind, the same principles would be applicable while construing a document like the document in dispute herein for purpose of ascertaining as to whether the document is liable to be construed as a Will or as a non-testamentary instrument. The High Court of Madras expressed the same view in (Isakki Ammal v. Pappammal and others)5, A.I.R. 1968 Madras 61. In this case, Natesan, J., held that intention of the executant must be gathered from the document itself if the words were express and clear and only in case of ambiguity, surrounding circumstances during execution could be looked into. The language of the impugned document, as it stands, clearly indicates that the deceased did not want to reserve any option to revoke the disposition or to make the disposition operative from the date of his death. The deceased was firm in his view that the division of assets be effective from the moment of execution of the document i.e. 1st September, 1981 as expressed in the document itself. 14. I do not think it necessary to refer to various other decisions cited by the learned Counsel for the petitioner. To my mind, none of these decisions cited are really relevant. In the result I hold that the document Exhibit 'A' cannot be construed to mean a testamentary instrument. I hold that the said document cannot be construed as a Will and is not a Will. The possibility of this document operating as a non-testamentary instrument or binding the parties on principal of estoppel or otherwise cannot be altogether ruled out. I do not express any opinion on merits of the questions which do not directly and strictly arise before me as a Probate Court. 15. In the result, the petition fails. The petition is dismissed. Having regard to the facts and circumstances of the case and the close relationship of the parties, there shall be no order as to costs. 16. Shri Rajiv Kumar informs the Court that the petitioner has already acted upon the document Exhibit 'A' to the Will and applies for stay of operation of this Order for a reasonable time. Having regard to the facts and circumstances of the case and the close relationship of the parties, there shall be no order as to costs. 16. Shri Rajiv Kumar informs the Court that the petitioner has already acted upon the document Exhibit 'A' to the Will and applies for stay of operation of this Order for a reasonable time. The operation of this Order is stayed for 6 weeks from today. 17. Issue of certified copy is to be expedited. Petition dismissed. *****