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2002 DIGILAW 630 (CAL)

TARAPADA DAS v. BIMAL KUMAR DAS

2002-09-20

ALOK KUMAR BASU, D.K.SETH

body2002
ALOK KUMAR BASU, J. ( 1 ) THE judgment and order passed by the learned Addiuonal District Judge, 1st Court. Howrah in L. O. A. Case No. 1 of 1995 is the subject of attack in the present appeal. ( 2 ) THE present respondent Bimal Kr. Das submitted an application for grant of letter of administration to the will executed by his father Amulya charan Das before the District Delegate, Howrah in the year 1990 and that application was registered as L. O. A. Case No. 321 of 1990. The said application of Bimal Kr. Das became a contentious one since the filing of objection by the present appellant Tarapada Das and the application of Bimal Kr. Das was transferred to the file of Additional District Judge, 1st Court, Howrah for disposal with new registration number as L. O. A. Case No. 1 of 1995. ( 3 ) BIMAL Kr. Das in his application for grant of letter of administration has stated that the properties comprising in Dag Nos. 1608 and 1610 of Khatian No. 134, Mouza-Kona, P. S. Liluah belonged to his father amulya Charan Das who died on 16. 5. 1987. Amulya Charan Das during his life time executed a deed of gift in favour of his eldest son Chandra sekhar Das on 3rd September, 1984 and in the said deed of gift Amulay charan Das expressed his desire to bequeath a portion of the said property in favour of appellant Tarapada Das and also a portion of the property in favour of respondent Bimal Kr. Das. Amulya Charan Das during his life time executed a 'will' in favour of Tarapada Das as per his desire expressed in the deed of gift. Bimal Kr. Das after the death of Amulya charan Das has prayed for grant of letter of administration on the basis of certified copy of the deed of gift as the original deed of gift is in custody of his brother Chandra Sekhar Das. ( 4 ) THE present appellant filed a written objection challenging the prayer of Bimal Kr. Bimal Kr. Das after the death of Amulya charan Das has prayed for grant of letter of administration on the basis of certified copy of the deed of gift as the original deed of gift is in custody of his brother Chandra Sekhar Das. ( 4 ) THE present appellant filed a written objection challenging the prayer of Bimal Kr. Das in the matter of granting of letter of administration on the ground that no portion of the deed of gift can be treated as the 'will' of Amulya Charan Das and that apart, it would appear from surrounding circumstances that Amulya Charan Das had no intention to bequeath any part of his property in favour of Bimal Kr. Das as alleged. ( 5 ) THE learned Additional District Judge after framing of necessary issues on the basis of petition and written objection and after considering evidence adduced by the parties and on hearing submissions of the learned Advocates of both the sides, finally, came to the conclusion that. in fact. "will of Amulya Charan Das is a part of the deed of gift and there is no ground to raise any question regarding valid execution of the said Will" which has been duly attested by witnesses and the scribe of the said 'will" also acted as an attesting witness as per requirement of law. The learned Additional District Judge, thus, rejected the contention of the present appellant and granted the prayer for issue of letter of administration in favour of petitioner Bimal Kr. Das. ( 6 ) TARAPADA Das being aggrieved by and dissatisfied with the judgment and order of the learned Additional District Judge has preferred this appeal contending inter alia that the learned Additional District Judge erred in law in interpreting the deed in question and the learned Judge has also failed to consider that the "will' alleged to have been executed by Amulya Charan Das was not properly proved as required under the law by any attesting witness, because, the scribe of the Will. who has been examined on behalf of the petitioner cannot be considered to be an attesting witness in the eye of law. who has been examined on behalf of the petitioner cannot be considered to be an attesting witness in the eye of law. The appellant has also submitted that the petition for grant of letter of administration has been filed long after the statutory period of limitation without any sufficient explanation and hence, the learned Judge should have held that the petition was not maintainable being barred by limitation. ( 7 ) AT the time of hearing of the appeal, the learned Advocate for the appellant has challenged the impugned judgment and order mainly on three grounds. The learned Advocate has submitted, first of all, that for proper interpretation of a document reliance should not be placed mainly on the language of the document, but, care must be taken to understand the surrounding* circumstances, the condition of the testator and his relation to the members of family in order to appreciate the real intention of the testator. The learned Advocate contends that it is the specific case of the appellant that petitioner Bimal Kr. Das had no good relation with amulya Charan Das and it would be clear further from the fact that while Amulya Charan Das had executed a Will' in favour of the appellant, there was no reason why another Will" was not executed in favour of bimal Kr. Das as per recital of. the deed of gift. ( 8 ) THE learned Advocate submits that even if it is accepted that recital of the deed of gift which relates to delivery of property in favour of the respondent and which according to respondent should be treated as last "will" of Amulya Charan Das. it was duty of the respondent to prove the document in accordance with law. The learned Advocate contends that from the evidence on record it will appear that respondent has miserably failed to prove the document in question. The learned Advocate submits that in the case of Mangal Singh and Ors. us. Nathu Singh and Ors. . reported in (1998) 8 Supreme Court Cases, page 598, the Apex Court has indicated clearly the legal requirements for proof of a "will" and no deviation front those legal requirements is permissible. The learned Advocate, in this context, has also relied another judgment of the Apex Court in the case of H. Venkatachala lyengar vs. B. N. Thimmqjamma and Ors. . The learned Advocate, in this context, has also relied another judgment of the Apex Court in the case of H. Venkatachala lyengar vs. B. N. Thimmqjamma and Ors. . reported in air 1959 Supreme Court, page 443. where also the Apex Court has observed that unless a "will" is proved as required under law with the help of competent and trustworthy witness, a presumption has to be drawn that it was not the "will' of the testator. ( 9 ) REGARDING his second point, the learned Advocate submits that it is the basic requirement in the matter of proving a "will" to be a genuine one that at least one attesting witnesses is examined. The learned advocate submits that in the present case the petitioner could not produce a single attesting witness to the Will', on the other hand, he lias examined pw-2 who was the scribe of the 'will', and the petitioner has tried to project that scribe as an attesting witness. The learned Advocate submits that it has been held both by the Apex Court in the case of N. Kamalam and Anr. vs. Ayyasamy and Ann, reported in 2001 Vol. 7 Supreme Court cases, page 503, as well as in the decision rendered by our High Court in the case of Satipada vs. Annakali Debya, reported in AIR 1963 Calcutta, page 462. that a scribe can be regarded as an attesting witness only when it can be proved with cogent evidence that the scribe had the intention to attest the signature of the testator in his presence. The learned Advocate submits that petitioner did not succeed in proving the fact that PW-2 as scribe of the Will" really attested the signature of Amulya charan Das or Amulya Charan Das actually signed on the document in presence of the said witness. Thus, the learned Advocate submits that when the petitioner failed to discharge his onus in the matter of proving the "will' in accordance with law, the learned District Judge ought to have refused the prayer for grant of letter of administration. Thus, the learned Advocate submits that when the petitioner failed to discharge his onus in the matter of proving the "will' in accordance with law, the learned District Judge ought to have refused the prayer for grant of letter of administration. ( 10 ) FINALLY, the learned Advocate for the appellant has raised the question of limitation with reference to a decision of Punjab and Haryana high Court in the matter of Estate of Late Shri Gurcharan Das Puri reported in AIR 1987 Punjab and Haryana page 122 and contends that the petitioner should have filed that petition for grant of letter of administration within three years from the death of the person whose estate is in question and even if there is some delay, there should have been proper explanation, but, in the present case admittedly the petition was filed long after three years without any explanation of delay and hence, on the question of limitation the prayer for grant of letter of administration should have been refused. ( 11 ) THE learned Advocate, appearing for the respondent has strongly refuted all the above contentions of the appellant. The learned Advocate submits that in the present case the 'will' in question was a part of the deed of gift and there is no challenge whatsoever about authenticity of the deed of gift and there is no whisper in the written objection filed by the appellant challenging the legality or validity of the said deed of gift. The learned Advocate for the respondent submits that Amulya Charan das had three sons, Chandra Shekhar. Tarapada and Bimal Das. It is clear from the document in question that Amulya Charan Das gifted away a portion of his property in favour of Chandra Sekhar Das by a registered deed of gift and in the said deed of gift Amulya Charan Das made his intention and desire clear that he would also bequeath a portion of his property in favour of Tarapada Das and also a portion of his property in favour of Bimal Kr. Das. The learned Advocate for the appellant submits that the Apex Court in the ease of Gnambal Ammal vs. T. Raju Ayyar and Ors. , reported in AIR 1951 Supreme Court, page 103, has given a clear guideline regarding interpretation of a document to be treated as 'will' of the testator. Das. The learned Advocate for the appellant submits that the Apex Court in the ease of Gnambal Ammal vs. T. Raju Ayyar and Ors. , reported in AIR 1951 Supreme Court, page 103, has given a clear guideline regarding interpretation of a document to be treated as 'will' of the testator. In the said judgment the Apex Court has observed that intention of the testator has to be gathered primarily from the language of the document and in this regard the court is entitled. to put itself into the testator's armchair'. The Apex Court has made it clear in the said decision that the court is in no case Justified in adding to testamentary depositions. In all cases it must loyally carry out the 'will' as property construed. The learned Advocate submits that keeping in mind the guideline of the Apex Court in the matter of interpretation of a 'will', it will appear from the document in question that the testator made it clear that he had the intention to bequeath a portion of his property in favour of Bimal Kr. Das and having regard to the surrounding circumstances, the language of the document is very clear to accept the same as the. 'will' of the testator. ( 12 ) ON the question of proof of the document with the help of attesting witness, the learned Advocate for the respondent submits that in the document itself it has been clearly stated that scribe himself was one of the attesting witness and the learned Court after considering the evidence of the scribe along with his cross-examination was satisfied that the scribe had the intention to attest the signature of the testator and in fact, the testator signed in presence of the scribe as attesting witness and there is no reason to discard the evidence of the scribe in this regard. ( 13 ) FINALLY, on the question of limitation, the learned Advocate for the respondent submits that the contention of the appellant in this regard cannot be accepted as it has been held in several decisions of different high Courts that there is no question of limitation in the matter of application for grant of probate or letter of administration to a 'will'. To substantiate his point the learned Advocate for the respondent has referred to the decision in the case of Leela Karwal vs. J. D. Karwal and ors. To substantiate his point the learned Advocate for the respondent has referred to the decision in the case of Leela Karwal vs. J. D. Karwal and ors. , reported in AIR 1983 Allahabad, page 386 and also in the ease of Vasudev Daulatram Sadarangani vs. Sajni" Prem Lalwani. reported in air 1983 Bombay, page 268. ( 14 ) FROM the memorandum of appeal as well as from the submissions of the respective parties it is very much clear that the entire controversy relating to the present appeal depends on the question of proper interpretation of the document which according to the respondent contains a "will of the testator. From the written objection filed by the appellant before the court below as wed as from the trend of submissions made by the learned Advocate for the appellant, one point is almost clear that the validity, legality or authenticity of the deed of gift has never been challenged by the appellant at any point of time either before the Court below or before us at the time of hearing. It is also admitted position that Amulya Charan Das as per terms of the deed of gift also executed a will regarding a portion of his property in favour of the present appellant. ( 15 ) FROM the recitals of the deed of gift and from the language used in the said deed of gift it is almost clear and certain that the testator had the intention to dispose of his property in favour of his three sons only as he made it clear that since his only daughter was married, he did not feel it necessary to bequeath any part of his property in favour of the married daughter. From the recitals of the deed of gift it is available that a portion was gifted to Chandra Sekhar, with the intention to bequeath a portion to Tarapada and also the remaining portion to Bimal kr. Das. From the recitals of the deed of gift it is available that a portion was gifted to Chandra Sekhar, with the intention to bequeath a portion to Tarapada and also the remaining portion to Bimal kr. Das. There is no evidence on record that Amulya Charan Das during his lifetime had any occasion to change his mind, rather from the execution of a subsequent 'will' in favour of appellant Tarapada Das, it can be slated firmly that Amulya Charan Das till his death had the intention to honour his desire contained in the deed of gift, though, for some reasons or other he could not execute a separate 'will' in favour of respondent Bimal Kr. Das. ( 16 ) THUS, from the language used in the deed of gift and from other surrounding circumstances, we have reasons to believe that Amulya charan Das really executed a 'will' in favour of Bimal Das and at least there is no iota of evidence before us to hold otherwise. Thus, following the guidelines of the Apex Court given in the decisions referred to by both the. sides we may take it for granted that the deed of gift also contained a Will' of the testator as regards parting of a share of his property in favour of the respondent. ( 17 ) FROM the decisions referred to by both the sides on the question of attesting witness, the settled legal position is that if it is proved on cogent evidence that the scribe had the intention to attest the signature of the testator and if it is proved by evidence that the scribe was present at the time of execution of the Will' and the testator signed in his presence then the scribe can be regarded as an attesting witness to the Will'. From the evidence of the scribe as recorded by the Court below and also from the recital of the document in question it is available that scribe was one of the attesting witnesses and he had the intention to attest the signature of the testator and in fact, the testator signed in his presence when the document was executed. Thus, the objection raised by the appellant regarding proper proof of the Will' as per requirement of law cannot be accepted. Thus, the objection raised by the appellant regarding proper proof of the Will' as per requirement of law cannot be accepted. ( 18 ) FINALLY- on the question of limitation it would be suffice to slate that law is very clear in this regard and there is no time bar for preferring an application for grant of letter of administration or probate to a 'will' and hence, the 3rd point of the appellant cannot be accepted. ( 19 ) THUS, having regard to the submissions made by the respective parties and on examination of the impugned judgment and order, we are of the view that the learned Additional District Judge rightly interpreted that a portion of the deed of gift can be treated as 'will' of the testator and that 'will' has been proved in accordance with law and hence, there cannot be any legal objection in granting the prayer of letter of administration to the said 'will. ( 20 ) THUS, there appears no merit in the present appeal and the same is accordingly dismissed without any order as to costs. ( 21 ) THE judgment and order passed by the learned Additional District judge, 1st Court, Howrah in L. Q. A. Case No. 1 of 1995 is hereby affirmed. ( 22 ) LET the Lower Court record be sent down forthwith. Per: D. K. Seth, J. : ( 23 ) I have the advantage of going through the judgment delivered by my learned brother. I fully agree with the same'. However. I would like to add a few words of mine. ( 24 ) THE question appears to be of prime interest. An intention expressed in a registered deed of gift donating some property to the second son is sought to be interpreted as will in favour of the third son. While executing the deed of gift in favour of the second son, the donor, father of the parties, being the eldest (1st) and youngest (3rd) son. expressed that he had decided/made up his mind to bequeath the particular properties mentioned therein in favour of the first and third son respectively. Admittedly, this might be an intention or a decision to bequeath the properties to the respective sons. But this has not created any interest in favour either of the said sons. No property or interest therein had passed by reason of such expression. Admittedly, this might be an intention or a decision to bequeath the properties to the respective sons. But this has not created any interest in favour either of the said sons. No property or interest therein had passed by reason of such expression. As defined in Section 2 (h) of the Indian Succession Act. 1925 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. " Unless the expression used in the said deed of gift satisfies the test of the definition of will; the same cannot be interpreted to be a will. According to the said definition, a will must have the following characteristic: (a) there must be a legal declaration of an intention of the testator: (b) the declaration shall relate to the property of the testator; (c) the intention shall relate to the desire of the testator to be carried into effect after his death. In other words, (a) it is a legal declaration; (b) of an intention; (c) in respect of disposition of the declarant's property; (d) to take effect after the declarant's death. ( 25 ) A declaration is legal when such declaration is not opposed to law. An intention is expressed when it is communicable in a legible form of writing unless the will is a privileged one. Since we are not concerned with privileged Wills in this case, we may confine ourselves to the execution of unprivileged Wills as provide in Section 63. An intention is expressed when it is communicable in a legible form of writing unless the will is a privileged one. Since we are not concerned with privileged Wills in this case, we may confine ourselves to the execution of unprivileged Wills as provide in Section 63. In terms of section 63, the testator (a) has to sign or affix his mark to the will or the will shall be signed by some other person in his presence and by his direction and (b) the signature or mark of the testator or the Signature of the person signing for him shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a will and further (c) the will is to be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the will or has seen some other person sign the will in the presence and by the direction of the testator or has received from the testator a personal knowledge of his signature or mark or the signature of such other person and each of the witnesses has signed the will in presence of the testator, though a is not necessary that more than one witness be present at the same time. in Section 63 clause (b), the signatures are to be arranged in a mannar to give effect to the writing as a will. Therefore, a will has necessarily to be in writing. It is to be signed or to be affixed with the mark as provided in clause (a) by the testator or some other person in his presence under his direction and that such signature or mark is to be placed in a manner to indicate the intention to give effect to the writing as a will and that it is to be attested by two or more witnesses in the manner provided in clause (c ). ( 26 ) B) the present case, it is in writing , though part of a deed of gift. But the expression used indicates intention different than the deed of gift. It was never intended to be a part of the gift. The deed of gift was registered. it is signed by the father and is also attested by two witnesses. It also relates to a declaration. But the expression used indicates intention different than the deed of gift. It was never intended to be a part of the gift. The deed of gift was registered. it is signed by the father and is also attested by two witnesses. It also relates to a declaration. The declaration is not opposed to law and as such is a legal declaration. The declaration is related to an intention in respect of disposition of property of the declarant. But the ingredient with regard to taking of effect of such disposition has not been mentioned. Admittedly, it was not intended to take effect immediately. The desire with regard to disposition of property was declared. But as to the time when such disposition will take effect was not mentioned. The action was expected to be taken in future. But it does not satisfy the necessity or characteristic of a will. Inasmuch as, iri order to be a will, all these ingredients, as discussed above, in relation to Section 2 (h)read with Section 63 of the 1925 Act are to be fulfilled. Absence of satisfaction of one of the tests or ingredients will not make the document a will. ( 27 ) WHEN the expression used satisfies all the tests of a will except one, then the intention is to be gathered from the surrounding circumstances and the conduct of the parties, particularly, the testator. In order to determine the same the court has to place itself into the armchair of the testator. An intention expressed by the testator cannot be ignored nor it can be overlooked or belittled. The facts and circumstances are to be weighed with having regard to the conduct of the parties, particularly, the testator on the basis of the materials that might come before the court. Court has to come to a conclusion justified by reasons. ( 28 ) HAVING regard to the facts of the present case, as discussed by my learned brother, it appears that pursuant to such declaration, father had executed a will subsequent to the deed of gift in favour of the first son which has not been objected to either by the second son or by the third son. The intention has been proved by the scribe, who is also an attesting witness as it appears from the deed of gift. The intention has been proved by the scribe, who is also an attesting witness as it appears from the deed of gift. A scribe can also be treated as an attesting witness when he signs the documents after the testator and if he proves in ocurt that the testator had intended the writing to take effect as a will and the testator had signed or affixed his mark in his presence and that he had signed the same in the presence of the testator. Under Section 68 of the Evidence Act in order to prove a will, the attesting witnesses, who are available and subject to the jurisdiction of the court are to be examined. Admittedly, the other attesting witnesses are not available. The evidence of the scribe appears to be that of an attesting witness. ( 29 ) IN Salipada Chatterjee vs. Annakali Debya, AIR 1953 Cal. 462 . this court had held that a scribe can be regarded as an attesting witness, if it can be gathered from the circumstances of the case that the scribe had signed the document, attesting the signature of the executant. If it is proved or there are materials to conclude that the scribe had put his signature after the executor and not before, then he could very well be treated as an attesting witness to prove the will. In Sita Ram vs. R. D. Gupta and Ors. . AIR 1981 Pandh 83, it was held that in the absence of any definition of an attesting witness and in the absence of anything to signify a particular meaning to the expression "attesting witness" in case of Wills, if his evidence meets the requirement of Section 63 (c) of the Indian Succession Act, then he can be treated as an attesting witness. Even in some cases decided by different High Courts in case of a registered will, the Sub-Registrar was also treated to be an attesting witness. Therefore, there is no difficulty in treating the scribe as attesting witness if his evidence satisfy the above test. ( 30 ) ALL these factors taken together, it appears that the intention expressed in the deed of gift was intended to disposition of the testator's properly. It was a combined intention in respect of both the first and third sons in respect of the specific properties mentioned therein respectively. This is one intention, which cannot be segregated. ( 30 ) ALL these factors taken together, it appears that the intention expressed in the deed of gift was intended to disposition of the testator's properly. It was a combined intention in respect of both the first and third sons in respect of the specific properties mentioned therein respectively. This is one intention, which cannot be segregated. The testator himself translated one part of his intention into action by executing the will in favour of the first son. There is no evidence that the other part of this intention was revoked by the testator. Admittedly, no will was executed by the testator in favour of the third son. But this cannot be construed to mean a revocation of the intention already expressed. On the other hand, when the. testator translates into action -one part of the same intention and does not take any action in favour of the other part of the intention, it cannot be construed in the negative. On the other hand, it is to be construed in the affirmative. In other words, the intention continued with the testator till his death. Until death he did not take any steps in respect, of such intention. He did not revoke such intention. Therefore, such intention definitely intended to take effect after the death of the testator. Thus, the Ingredient that was lacking in the intention expressed in the deed of gift was satisfied by the execution of the will by the testator in favour of the first son and by his inaction in non-revocation of the said intention, so far as the third son is concerned. In the deed of gift, the testator has explained his desire to give the properties to the respective sons, while giving one of the properties to the second son excluding his married daughter. The intention already expressed and proved cannot be presumed to have been revoked simply by reason of silence or omission to lake a positive action. Absence of positive action cannot be treated to be a negative action. The silence or omission is to be treated as an affirmation or continuation of the intention until revoked. ( 31 ) IN K. Babu Rao and Anr. vs. Datta Rao and Ors. , AIR 1992 Kar 290 . following Gnambal Ammal vs. T. Raju Ayyar and Ors. Absence of positive action cannot be treated to be a negative action. The silence or omission is to be treated as an affirmation or continuation of the intention until revoked. ( 31 ) IN K. Babu Rao and Anr. vs. Datta Rao and Ors. , AIR 1992 Kar 290 . following Gnambal Ammal vs. T. Raju Ayyar and Ors. , AIR 1951 SC 103 , the Karnataka High Court had held that the Court is entitled to put itself into the testator's armchair for the purpose of arriving at a right construction of the will. The duty of the court is to cany out the intention as expressed and none other. In Gnambal Ammal (Supra), the Apex Court had held that in construing the will, the cardinal maxim to be observed by the court is to endeavour to ascertain the intention of the testator. Such intention is to be gathered primarily from the language of the document in construing the language, the courts are entitled and bound to bear in mind other matters than merely confining within the words used. The court has to consider the surrounding circumstances, the position of the testator, his family relationship, the probability that he would use words in a particular sense and many other things, which are often summed up in the somewhat picturesque figure. The court has to put itself in the armchair of the testator for the purpose of arriving at a right decision and to ascertain the meaning of its language used by the particular testator in that document. So soon as the construction is settled, the duty of the Court is to carry out the intention as expressed and none other. Court would not be Justified in adding to testamentary dispositions. In all cases it must loyally carry out the will as property construed. This duty is universal. A presumption against intestacy may be raised if it is justified by the context of the document or the surrounding circumstances. But this can be invoked only where there is undoubted ambiguity in ascertainment of the intentions of the testator. ( 32 ) A sure test to determine whether a particular document is a will or not is (o see whether (he disposition is to take effect during the lifetime of the person or after his death (Sagar Chandra Mondal vs. Digambar mondal. ( 32 ) A sure test to determine whether a particular document is a will or not is (o see whether (he disposition is to take effect during the lifetime of the person or after his death (Sagar Chandra Mondal vs. Digambar mondal. 14 CWN 174 : 10 CW 644; Thakur Ishri Singh vs. Thahur Buldeo singh. ILR 10 Cal. 792 at p. 802 (P. C.); Fanindra Deb Raikat vs. Rajeswar das. ILR 11 Cal 463 at p. 483-84 (P. C. ). Where the document does not purport to convey intention de prasenti and the contingencies were not ascertainable until the death of the testator and the disposition did not purport to give any interest until the death of the donor, it was held to be a will in Thahur Ishri Singh (supra ). In Venkatarama Iyer vs. Sundarambai. AIR 1940 Bom. 400 at p. 402, it was held that a will differs from other documents in the following manner: (a) it takes effect after the death of the Testator, (b) it is revocable by the testator at any time before his death and (c) it must relate to disposition of property. In the present case, there is nothing to indicate that there was no power reserved to the testator to revoke the said intention. The test to determine whether a document is a will has since been laid down in Thakur Ishri Singh (supra); Md. Abdul Ghani vs. Fakhir Jehan Begum, ILR 44 All. 301 (P. C.); veerabadrayya vs. Seethamma. AIR 1940 Mad 236 . Where a portion of a document contains a legal declaration of the intentions of the executant with respect to his property, which he desired to be carried into effect after his death, while the other portions of the same document contain other provisions which he desires to be carried into effect during his lifetime, the portion which is testamentary in character operates as a will. So an instrument of whatever denomination may operate partly in praesenti as a deed and partty in future as a will [chand Mall vs. Lakshmi narain, ILR 22 All. 162 at p. 164; Bishan Singh vs. T. M. Nain. 58 LW 47 at p. 49 (P. C.)]. A will and a deed of gift may combine in one and even if the gift fails, the testamentary deposition can very well stand and remain enforceable. 162 at p. 164; Bishan Singh vs. T. M. Nain. 58 LW 47 at p. 49 (P. C.)]. A will and a deed of gift may combine in one and even if the gift fails, the testamentary deposition can very well stand and remain enforceable. It was so held in Shiv Das vs. Debki, AIR 1978 Punjab 285 at p. 289. ( 33 ) THUS we find that (a) a deed of gift or any other document may contain a will; (b) such document may operate as the document of the description as well as a will; (c) depending on the nature, it may either be the document of the description or a will; (d) but the nature and character is to be gathered first from the intention expressed in it; (e)if the intention is clear, it has to be given effect to; (f) if intention is clear but (here is a little ambiguity then (he intention is to be gathered from the surrounding circumstances and the conduct of the testator; (g)it has to satisfy the characteristics of a will viz : (ij it is a legal declaration in writing (ii) of an intention (iii) in respect of disposition of property (iv) to take effect after the declarant's death; (h) whether it will take effect after death of (he testator is to be ascertained from the express terms of the declaration viz : (i) that it does not create any interest de prasenli (ii) nor does it create any interest during the lifetime of the testator and that (iii) it remains revocable and has not been revoked expressly. ( 34 ) HAVING regard to the facts of this case applying the above test, we find that the intention of the testator was unambiguous, clear and without any doubt and that the part of the same intention has already been translated into action. Therefore, it is an irresistible conclusion that the testator had intended to bequeath the property in favour of the third son. The part of the deed of gift, which expressed the desire of bequeathing the property to the first and third son. is in effect a will, which the testator had left for disposition meaning thereby to take effect after his death. Coupled with these surrounding circumstances, the intention expressed in the deed of gift expressing a particular made of disposition of his property is definitely a will. is in effect a will, which the testator had left for disposition meaning thereby to take effect after his death. Coupled with these surrounding circumstances, the intention expressed in the deed of gift expressing a particular made of disposition of his property is definitely a will. Therefore, the decision appealed against is hereby affirmed. ( 35 ) URGENT xerox certified copy of this judgment may be supplied after complying with all legal formalities. Appeal dismissed.