Raj Kishore Prasad, J.

(1) This appeal by the appellant-plaintiff, arising out of a contentious Letters of Administration proceeding, is from the judgment of Mr. R. B. Aikat, Additional District Judge, Dar-bhanga, who has rejected his application for grant of Letters of Administration to the estate of the deceased Bhaglu Singh on the basis of his alleged will -- Exhibit X -- on the ground that the document, Exhibit X, was a gift, and not a will, and, therefore the Court had no jurisdiction to entertain such a petition.

(2) There was one Bhaglu, whose distant nephew is Ramautar, the appellant, Bhaglu had two daughters, Rarnsundari, Respondent 1 and, Lal Pan, Respondent 2. Lal Paris husband is Gita Thakur, and, Rameshfar, Respondent 3, is the son of Lal Pari and Gita Thakur.

(3) On the 1st May, 1950, Bhaglu executed the disputed document, Exhibit X, which purports to be a deed of gift, in respect of the properties specified therein, which are not the subject-matter of the present application for Letters of Administration, in favour of the appellant. This document was registered on the 12th May, 1950. On the 21st August, 1950, Bhaglu died. After his death, the appellant, on the 14th November, 1950, made an application for Letters of Administration, on the basis of the document, Exhibit X, in respect of the properties of Bhaglu, which were not covered by the document, which he alleged was the last will and testament of the deceased testator Bhaglu. On the 12th May, 1951, the two daughters of Bhaglu, namely, respondents 1 and 2, entered caveat and filed their objections on various grounds, alleging, inter alia, that the alleged will was a forged document. On the 27th March, 1952, there was a compromise between the two daughters and the r.ephew (the plaintiff-appellant) of Bhaglu. On the 17th December, 1954, the learned trial Judge, however, refused to record the compromise on the ground that the genuineness of the will, set up by the plaintiffs, will have to be determined by the Court on merits, and, the proceeding in respect thereof cannot be legally disposed of by a compromise.

(4) Thereafter, Kameshwar Thakur, Respondent No. 3, son of Lal Pari, also entered caveat, and, filed an objection on the 14th February, 195

5. The appellant then on the 19th February, 1955, filed a rejoinder to the above objection of Kameshwar. to the effect that he had no locus standi to contest the proceeding.

(5) Several issues were then framed by the trial Judge on the pleadings of the parties. But subsequently at the request of the parties he decided the preliminary issues Nos. 1 and 2, relating to the jurisdiction of the Court to grant Letters of Administration, and, the locus standi of the caveator, Respondent 3, and, left the main issue, Issue No. 3, regarding the due execution and genuineness of the will, to be determined later.

(6) The learned Judge of the Court below held that the caveator, Kameshwar, had locus standi, and, that the document in question was not a will, but a gift, and, therefore, the Court had no jurisdiction to entertain the application for grant of Letters of Administration on the basis of the same. He also consequently decided the last issue No. 4, regarding the relief to which the plaintiff was entitled, and, held that the plaintiff was not entitled to any relief, and accordingly, he rejected his application for Letters of Administration.

(7) On appeal by the plaintiff to this Court, the sole question for determination is, whether the document. Exhibit X, is a gift, or, partly a gift and partly a will

(8) After some argument it was conceded by Mr. Prem Lall, who appeared for the appellant, that the question of locus standi of the caveator had been correctly decided by the trial Judge, and, therefore, he would not challenge his finding on that question.

(9) It was also conceded by Mr. K. K. Sinha. who appeared for the respondent 3, that there could be a composite document being partly a gift and partly a will.

(10) The crucial, and the only question, therefore, which has to be decided is, whether on a natural construction of the document, Exhibit X, as a whole, it can be construed to be purely, and simply a gift, or a composite document, being both a gift and a will.

(11) Mr. Prem Lall conceded that the document, Exhibit X, under construction, was a gift in respect of the properties specified therein; but he maintained that in view of the statements of the testator in this document, reproduced hereafter, it must also be deemed to be his last will, in respect of the other properties of the deceased testator, which were not covered by the deed, and, which are the subject-matter of the present proceeding. The material statement of the testator in the document relied upon by Mr. Prem Lall and which is the foundation of his argument is to the following effect :

"After the death of me, the executant, the aforesaid nephew of mine shall own and possess the entire property. Be it noted that the said nephew will perform the Dah-karm and Suradh ceremony of me, the executant, in the form in which it is performed by the Hindus governed by the Mitakshara School of Hindu Law."

(12) Mr. Prem Lall, relying on the above quoted statement of the testator submitted that it answered the definition of a will which is- contained in Section 2(h) of the Indian Succession Act (Act No. XXXIX of 1925), and, that the passage quoted above shows the testamentary wishes of the deceased and is a clear indication of the intention of the deceased with regard to his properties which were not gifted to the appellant and which were not covered by the document, Exhibit X. He placed strong reliance on the words, "After the death of me", with which the above quoted statement of the testator begins, and, submitted that it clearly indicated that the above disposition of his ungifted properties was to take effect after his death and the donee was not to get any of these ungifted properties of the donor until his death.

(13) In support of his contention Mr. Prem Lall relied on Thakur Ishri Singh v. Baldeq Singh, 11 Ind App 135 (PC), Dintarini Debi v. Krishna Gopal Bagchi, ILR 36 Cal 149 [LQ/CalHC/1908/153] , Venkatachalam Chetty v. Govmdaswami Naicker, AIR 1924 Mad 605 [LQ/MadHC/1923/399] , and Rajeshwar Misser v. Sukhdeo Misser, AIR 1947 Pat 449 [LQ/PatHC/1947/32] .

(14) Mr. K. K. Sinha, on the other hand, strongly relied on the following last portion of the document, Exhibit X.

"Now I, the executant, neither have nor shall have in future any objection and contention regarding the execution of the deed of gift or any other matter, as against the claimant. If I do so contrary to the terms of this deed, the same shall be null and void and untenable in Court."

and submitted that from the above quoted passage it was obvious that the document was irrevocable, and, the irrevocability of a document is perfectly inconsistent with its being a will. In support of his contention that the document in question, therefore, was a gift, and not at all composite document partly a gift and partly a will, as contended by the appellant, relied on Mt. Sita Koer v. Munshi Deo Nath Sahay, 8 Cal WN 614, Rajammal v. Authi-ammal alias Authi Lakshmiammal, ILR 33 Mad 304, and Gnambal Ammal v. Raju Ayyar, AIR 1951 SC 103 [LQ/SC/1950/35] .

(15) In view of the above mentioned decision of the Supreme Court, relied upon by Mr. Smha. I do not think any useful purpose will be served by examining the language of the documents which were construed in each case. It was pointed out by B. K. Mukherjea, J. as he then was, who pronounced the unanimous opinion of the Supreme Court, that :

"It is seldom profitable to compare the woids of one will with those of another, or, to attempt to find out to which of the wills, upon which decisions have been given in reported cases, the will in question approximates closely."

(16) His Lordship, thereafter, laid down the cardinal maxim to be observed by Courts in construing a will in the following words :

"The cardinal maxim to be observed, by Courts in construing a will is to endeavour to ascertain the intentions of the testator. This intention has 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. In construing the language of the will, as the Privy Council observed in Venkata Narasimha v. Parthasarathy, 41 Ind App 51, at p. 70 : 21 Ind Cas 339 [LQ/PC/1913/3] (PC), the Courts are entitled and bound to bear in mind other matters than merely the words used. They must 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 is entitled to put itself into the testators armchair"

"But all this is solely as, an aid to arriving at a right construction of the will, and to ascertain the meaning of its language when used by that particular testator in that document. So soon as the construction is settled, the duty of the Court is to carry out the intentions as expressed, and none other, The Court is in no case justified in adding to testamentary dispositions in all cases it must loyally carry out the will as properly construed, and this duty is universal, and is true alike of wills of every nationality and every religion or rank of life."

(17) The document, Exhibit X is in Hindi, and, its official translation, which is printed at page 30, in the Paper Book is not complete, in that, important portions of the material statement of the testator have been omitted. I have, therefore, got the relevant portions officially translated, and, the official new translation is on the record. The corresponding material words in the vernacular are ; "Bad mamat man mokir ke yahi bhatija mokiraleh kul zaidad ka malik wo kabiz honge",

(18) The word "will" is widely known and used, and it has a well-understood significance as meaning a disposition which is to take effect on the death of a person. "Will" has been defined in Section 2 (h) of the 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. A will, therefore, is dependent upon the testators death for its vigour and "effect. The principal test to be applied is, whether the disposition takes effect during the lifetime of the executant of the deed, or, whether it takes effect after his demise. There is no objection to one part of an instrument operating in praesentt as a deed and another in futuro as a will, under Section 62 of the Succession Act a will is liable to be revoked or altered, by the maker of it; at any time when he is competent to dispose of his property by will. A testamentary intention, therefore, is ambulatory till death and a will is in its nature a revocable instrument. The making of a will is but the inception of it, and it does not take any effect till the death of the devisor. The two characteristics of a will, therefore, are: (1) that it must be intended to come into effect after the death of the testator; and (ii) that it must be revocable.

(19) Applying the above two tests to the present case, let us see if the document in question, a portion of which is admittedly a gift--a transfer inter vivos--and, in respect of its specified subject-matter and particularly mentioned and gifted property a disposition in praesenti, was also intended by the executant to operate as a will in respect of his unspecified other lands, and, whether he disposed of his other ungifted properties testamentarily in favour of the donee, the next taker, after his death

(20) The learned trial Judge also applied these two tests, and, observed that the document was a gift in respect of the gifted land "except that there is also a recital that after his death the donee will become the malik of all his properties". He fur ther observed that a document may be partly a gift and partly a will; but as it was irrevocable it could not be a will. He also took into consideration the fact that the document was both stamped and registered as a non-testamentary document which indicated that the parties did not regard it as a will.

(21) After hearing the question, whether the document is also partly a will, which is the sole point for determination in this appeal, fully argued, I have come to the conclusion that that is the effect of the document, and, the judgment of the Court below contra cannot be supported.

(22) As to the first pre-requisite of a will that it must take effect after the testators death, in my opinion, the document in question expressly satisfied it. The words, "After the death of me, the executant, the aforesaid nephew of mine shall own and possess the entire property" leave no manner of doubt that the disposition of all the other properties of the executant, which were not specifically gifted under the deed, was expressly stated to take effect after his demise. It is not denied that under the law the un-gifted property of the executant would have been inherited by his two daughters, respondents 1 and 2, and not at all by the nephew, the appellant, as he was not his own nephew, but a nephew by relationship as mentioned in the document itself. There are no words in the document by which the executant divested himself of his ownership in his un-gifted property and vesied it in the donee, who is the same person who is intended to take the ungifted property also of the executant after his death. As there were no direct words of gift in respect of the executants ungifted property as well, and, there was definite object and expressed wish-in giving such property also to the donee, which otherwise he would not have inherited under the law, the document could be construed as a will of the ungifted property of the donor. The true purpose of the above quoted clause of the document would seem to be to emphasise that the execution of the deed of gift in respect of the gifted property does not affect the right of the donor over his other ungifted properties, and that is an indication that it is to operate as a will. The clause, referred to, does not confer any right in praesenti to the donee in the other properties of the donor. It only vests the title to the other properties disposed of by it in the donee only on the death of the donor.

(23) The obvious intention of the donor in executing this composite document, partly a gift and partly a will, was that it should operate inter vivos, as a present disposition, in respect of the gifted properties, which were intended to be given to the appellant, to the exclusion of his daughters, for his services. This intention of the executant is made clear by his own statement in the document to the following effect:

"Hence, I, the executant, thought it advisable to give some of the occupancy kasht land in gift to the claimant in lieu of service and obedience rendered by him, so that in future there may not arise any untoward thing and I may be relieved of the obligation that the claimant has been rendering sheva-tahal to me. I, the executant, have been treating the claimant affectionately from his very childhood, as I, the executant have no aulad (child, generally meaning son). Thus it is necessary and expedient for me to execute a deed of gift in favour of the claimant."

The donor intended to remain himself in possession of his other properties till his life-time and, there fore, by this document he gave "some" of his occupancy land only in gift to the donee. In res-pect of all his remaining properties he willed that the donee shall own and possess the entire property" after his death.

(24) If the donor intended not to make a will in respect of his other properties it was absolutely unnecessary for him to express his intention,, as expressed in the previously quoted clause, in the document to be given effect to after his death. The obvious advantage in executing a composite document was to make a disposition in praesenti as well as in futuro in favour of the donee, so that as long as he may be alive he may remain in possession of his other properties and enjoy the usufruct of the same and after his death the donee may own and possess them also. In this view, if the above will in the document is found to be revocable, it must be held to be a testamentary disposition, by the donor of his other ungifted properties operating on them on his death. The dispositive words quoted above, are clear and unambiguous. There is, therefore, no doubt that the donors dominant intention was to pass his other properties also after his death to the donee.

(25) It is true, here the Court is asked to deal with a portion only of the document and declare it to be testamentary; but the intention of the executant as to what should happen to his other ungifted properties after his death is clear, and not at all obscure.

(26) It is also true that the Court has no power to give effect to a hypothetical intention bv supplying lacunae in the will, and, thereby making practically a new will for the testator. But here that is not the position. The intention of the executant is expressed in clear, unequivocal and unambiguous terms.

(27) We should not forget the well-settled canons of the construction of a will stated earlier also.

(28) The golden rule in interpreting a will is to give effect to the testators intention as ascertained from the language which he has used. The overriding duty of a Court of construction is to construe the language which the testator has in fact employed giving due weight to all the words and rejecting none fo which a meaning can reasonably be assigned. The Court is entitled to "put itself into the testators armchair".

(29) In my judgment, therefore, in the present case, the document, on a true construction, is in effect, a deed of gift, operating in praesenti, on some of the executanls lands, specified in the document, and, also a will, operating in future, after the death of the executant on all his other ungifted lands.

(30) After having found that the first characteristic of a will present in the document, let us now see if the second essential test of a will that it should be revocable is also satisfied here.

(31) As Lord Penzance says, In the Goods of Robinson, (1867) 1 P. and D. 384 at p. 387:

"there are some tests which are applied in every case when a question is raised as to the testamentary character of a paper. One of these invariable1 tests is whether the paper is revocable".

Apply that test here, and, I think that that part of the instrument in question, reproduced in extenso earlier, which I have held above to be a will, under which the vesting was to take place a morte testatoris; was revocable in all its part.

(32) Mr. Sinha, in support of his contention that the document was expressly made irrevocable, relied, particularly on the second part of the follow ing last clause in the document, reproduced earlier also:

"Now I, the executant, neither have nor shall have in future any objection and contention regarding the execution of the deed of gift, or any other matter, as against the claimant. If I do so contrary to the terms of this deed, the same shall be null and void and untenable in court".

(33) Mr. Sinha relying on the second part of the above clause submitted that what was made irrevocable was the "deed" itself, because in clear terms the executant stated therein that he will in future make no objection "to the terms of this deed", and if he did so "contrary to the terms of this deed" it will be null and void and untenable in Court. Mr. Sinha therefore submitted that the whole deed including the clause, ex facie intended to be the testamentary disposition of the donor, was made irrevocable in all its parts.

(34) Mr. Prem Lall, however, contended that the above quoted last clause should be read in its entirety, and, therefore, both the parts of it should be read together, and, if they are so read it is clear that what was made irrevocable was the deed of gift only, and not that clause of the document, which contained his last will and testament. He further contended that the word "deed", occurring in the second part of the above last clause, if considered alone, divorced from its first and earlier part, may, at first blush, give that impression; but if the entire last clause reproduced above, is read, and, considered, and, the two parts of it are read together, it would be obvious that the word "deed" referred to in the second part of the last clause, meant the deed of gift expressly mentioned earlier in the first part of the last clause above mentioned.

(35) It is well settled that where words are used in the latter part of the will which have no application to the preceding direction, such words should not be allowed to detract from the force and effect of the earlier part. Defects, even if any, in expression should not be allowed to prevent the carrying out of the testators intention.

(36) Tn the instant case, the two clauses, namely, the earlier clause and the latter clause, quoted already, should be read together, and if they are so read it would be absolutely clear that what was made irrevocable was the deed of gift, and the latter clause had nothing to do with the earlier clause which was a will and which was to take effect after his death. If the intention of the executant would have been to make the earlier clause, which was intended to be a will, also irrevocable, there was no sense in using specifically the words "deed of gift" in the first part of the last clause, instead of simply saying "the deed" as in the second part of the last clause. The last clause, relied upon by Mr. Sinha, in my opinion, applies only to the deed, and not at all to the will, nor to the whole document, a part of which js also will. The true meaning of the last clause of the document is to make the deed of gift irrevocable, and, for that reason in the last clause expressly it was stated that the executant shall not "have in future any objection and contention regarding the execution of the deed of gift". The words "or any other matter" occurring thereafter, upon which also reliance was placed to shew that the irrevocability applied also to the portion of the document which was a will, must necessarily refer to the deed of gift only which preceded these words, and not to the earlier clause which was a will. The document being partly a deed and partly a will, the intention of tie executant has to be ascertained from the whole document

(37) In my opinion, therefore, On reading the two clauses it is clear enough that that part of the document which was a deed of gift was made irrevocable, but that portion of the document, which was a will was not made irrevocable at all. Nothing is said in the deed regarding that testamentary disposition. 1, therefore, hold, in disagreement with the trial Judge, that that part of the document which contained the will of the executant was not made irrevocable.

(38) It was then argued that this document was both stamped and registered as a non-testamentary document, but a will does not require either. This fact has also weighed with the trial Judge. But I do not think this matter is of any consequence, because when a composite document was being executed, which was partly a gift and partly a will, naturally the document will have to be stamped and registered as a deed of gift under the law, and, therefore, the fact that the document was stamped and registered is not a circumstance to show that the parties did not intend that it should not also operate partly as a will, but only as a gift- If the document would not have been a composite document, being both partly a gift and partly a will, but a single document, then certainly the fact that the document was stamped under the Stamp Act and registered under the Registration Act, would have been a very convincing circumstance to show that the document was not intended to be a will, as it does not require either to be stamped or registered.

(39) In coming to the conclusion that the document was not partly a will, the learned Judge in the Court below was very largely influenced by the above two facts that the document was irrevocable, and it was stamped and registered. He has in this connection referred to Section 126, Transfer of Property Act, which provides that a, gift which the parties agree shall be revocable, wholly or in part, at mere will of the donor is void wholly or in part as the case may be; and, held that as the terms of the document make it clear that it was irrevocable in its nature, it could not be a will. The just mentioned two reasonings of the trial Judge are based on a misconception of the recitals in the document. He does not keep the two parts of the document and the two clauses, previously reproduced, separate, and, ignores the most material fact that there was not one disposition as regards all his properties, but two dispositions, a gift and a will--both combined in one document. He executes a gift in respect of some of his lands, and, makes the deed in respect of such gift irrevocable. But his disposition regarding his other properties, which is to take effect after his death is not hedged by any such condition. There was real animus testandi on the part of the executant to make a testament in respect of his other properties. He does not say that disposition of his shall also be irrevocable. He expressly mentions towards the end of the document that the deed, meaning the deed of gift, will be irrevocable. The document being one, although partly a will and partly a gift, and described as a gift, must necessarily under the law be both stamped and registered as such.

(40) Whatever value one might attach to the above two considerations if there was any doubt or uncertainty as to the meaning of the will, when once it is held that the language thereof is clear and unambiguous, and the terms of the two already quoted clauses of the document are clear, it must be held that the document. Exhibit X, dated 1st May 1950, is what it purports to be--partly a gift and partly a will, both combined in one, and nothing else.

(41) The fact that the executant does not purport to give to anybody any possessory or present interest until his death in respect of his other properties, although in respect of some of his lands he makes a gift under the document operating at once, and, the fact that although he makes the deed of gift irrevocable, he does not say a word about irrevocability of his testamentary disposition also, which is to take effect after his death, all these are very strong indicia of the document being partially of a testamentary character; and, they are overborne by the two reasons given by the trial Judge tending in the opposite direction,

(42) On the document there is no doubt that the executant took meticulous care in making an effective disposition of all the properties owned by him, in respect of some it was to operate as a deed of gift in praesenti, and, in respect of the rest it was testamentary disposition and the vesting was to take place a morte testetoris.

(43) Mr. Prem Lall placed strong reliance on 11 Ind App 135 (PC), in which the question of will or deed was in issue, and, in which the Privy Council reversed the decision of the Judicial Commissioner holding the instrument to be a transfer operating inter vivos and came to the opposite conclusion that it was a will.

(44) In AIR 1924 Mad 605 [LQ/MadHC/1923/399] relied upon by Mr. Lall the, document was held to be a will, Schwabe J., who delivered the main judgment of the Court, and, with whom Waller J. agreed, relied on the above mentioned decision of the Privy Council, and, at page 606, observed:

"In form it is a deed of gift and not a will, but in fact it is a declaration of the intentions of the donor with respect to her property which she desires to be carried into effect after her death, because there is no disposal of any immediate rights of possession or any immediate interest in the property. The fact that the document purports to reserve a life interest in the property to the donor is an argument against its being a will, but as was pointed out by the Privy Council in ILR 10 Cal 792, no great attention need be paid to that, because it is a frequent thing in this country to find documents which are in fact wills in terms making clear that the person disposing of the property reserves life or immediate interest in the property."

In ILR 36 Cal 149 [LQ/CalHC/1908/153] , also relied upon by the appellant, the document was held to operate as a will. In that case also there was a recital like here, and, in considering the same, Sharfuddin and Coxe, JJ., in a joint judgment, at page 155, said :

"The important passage in Exhibit I, which corresponds with the above definition, is and on the demise of me, and of my legally married wife he (Krishna Gopal) shall be entitled to, and be in possession of all the moveable and immoveable properties left by me." The above passage is a clear indication of the wishes of Ram Chandra with regard to such of his properties as may be left by him. It is contended on behalf of the applicant that Exhibit I is not in the form of a will, and that the, form indicates that the document could not have been intended to be testamentary, and that the name of the document itself is against such a supposition. There is no doubt that the passage quoted above shows the testamentary wishes of the deceased."

Likewise, Mr. Sinha also strongly relied on 8 Cal WN 614, in which in view of the fact that the document was irrevocable and it was stamped and further registered as a non-testamentary document, it was held that it was not a will, but an Ekrarnamah. In that case the only question was whether the document was or was not a will. It was a case of single disposition, and it was not combined document, as here, partly a deed and partly a will.

(45) In ILR 33 Mad 304, also relied upon by Mr. Sinha, the sole question was whether the document, in that case, was a will or a deed of settlement.

(46) In that case Sir R. S. Benson, C. J., and Krishnaswami Ayyar, J., in a joint judgment, observed:

"In form it purports to be an agreement executed by Nilkanta Pillai to his wife and his sons widow. This is a circumstance to be taken into account although as observed in Rambhat v. Laksh-man Chintarnan, ILR 5 Bom 630 at p. 636, this, per se, is not much. It has been registered as a settlement. In Marjoribanks v. Hovenden, (1843) Drury 11, as observed by Jarman, the fact of registration as a deed appears to have been deemed almost conclusive against its testamentary character. (See Jarman on Wills, 5th Edn. Vol. 1, page 22). Without giving the same effect to registration in (his country, it is at least permissible to hold that that is also a circumstance to be taken into account".

Later, at page 307, their Lordships said:

"Above all he declares that his future debts shall not be binding on the properties. None of these can be said to be provisions of an ambulatory character. The fact that some of these are expressed to operate in the future cannot affect the character of the instrument as settlement. As observed by Kekewich, J., in Johnstone v. Mappin, (1891) 64 LT 48 at p. 51, There is no magic in the use of the future tense which is frequently employed to express a present contract, and if on the construction of the whole instrument the true conclusion is that a present complete settlement was intended ..... then I take it the intention must prevail, notwithstanding it be expressed in appropriate language".

On a consideration of the terms of the document in that case their Lordships held that the remarks of Sir J. R. Wilde in (1887) 1 P. and D. 384, at p. 38

6. "The first difficulty that arises is, that the Court is asked to deal with a portion only of a document, and declare it to be testamentary. I have met with no case where that has been done although I by no means say that it could not be done." appeared to be applicable to the case before them in which there were clear provisions having an immediate operation. Their Lordships, therefore, held that as the paper before them was irrevocable and was to operate in praesenti, it was a settlement and not a will.

(47) In the two Patna cases also, relied upon by the learned Counsel for the parties, the question which is before us did not arise.

(48) But, as observed by the Supreme Court, it is seldom profitable to compare the words of one will with those of another, and to attempt to find out to which of the wills, upon which decisions have been given in reported cases, the Will in question approximates closely. In each of the eases relied upon by the learned Counsel for the parties there was one document, and, the sole, question was whether that document was a will or a deed. In none of them there was a combined document, and, in none of them the question arose whether the document was partly a will and partly a deed, as here. No case has been cited on either side at the Bar in which the instrument under construction was of the present nature. For this reason also, none of the cases cited at the Bar will be a settlor on the question at issue in the instant case. No doubt they indicate useful guides of approach, and also lay down valuable tests and are likely to furnish the key to the solution of the question, but none of them actually solves the riddle itself. Even where there are two wills and there is no substantial difference between them, it would not be possible to give to one a meaning which the other would not bear. The primary duty of a Court, therefore, is to ascertain from the language of the document what were the intentions of the executant,

(49) Here, no doubt in form the document purports-to be a deed of gift, because the document itself is named as such; but, although this is a circumstance to be taken into account, this per se is not much in the present case. Since admittedly it is partly a gift.

(50) It is also true there is no magic in the use of the future tense, occurring in the first clause of the document, which is frequently employed to express even a present contract, but if, on the construction of the whole instrument, the true conclusion is that a disposition, which was to take effect in the future after the death of the executant, was intended, the intention must prevail, notwithstanding, even it be expressed in inappropriate language. Here, however, the expressed wishes of the executant are absolutely clear; and the future tense has been used in the first clause not to express the present contract, but a testamentary disposition to take effect in the future on his death.

(51) For the reasons given above, I feel satisfied, and hold accordingly, that the instrument in question, Exhibit X, is a composite document, partly a will and partly a gift, and, therefore, the Court below had jurisdiction to entertain the plaintiffs application for Letters of Administration based on the will of the deceased testator contained therein.

(52) In the result the appeal succeeds, the judgment and decree of the Court below are set aside, and, the matter is remitted to it for disposal of the plaintiffs application for Letters of Administration in accordance with Law. The Court below, on remand, will now decide issue No. 3, which is: "was the will in question genuine and duly executed", and, along with it it will also decide afresh issue No. 4 regarding the relief to which the plaintiff-appellant would now be entitled on his finding on issue No. 3.

(53) It is made clear that no observation of mine in this appeal will affect issue No. 3, which will now be decided by the Court below after taking evidence of the parties. The appeal is accordingly allowed.