BOMBAY HIGH COURT
RAMANANDI KUER VS KALAWATI KUER
ON 11-11-1927
ON 11-11-1927
Summarised
Judgement (Scroll for Complete Judgement)
Judgement (Scroll for Complete Judgement)
Introduction:
Harangi Singh of Bihar, a small town in
the District of Patna, had two sons (1) Alak Prakash and (2) Gyan Prakash. Alak
Prakash was given in adoption to Angat Singh, a wealthy inhabitant of the same
town. On Angat’s death, Alak Prakash, still a minor, inherited from him
properties of considerable value, Harangi with his family, including Gyana
Prakash, thereupon came to live with Alak Prakash in Angat’s house and managed
the properties as Alak’s guardian till the latter attained majority. But even
after that Harangi and Gyan continued to live with Alak Prakash in his house.
the District of Patna, had two sons (1) Alak Prakash and (2) Gyan Prakash. Alak
Prakash was given in adoption to Angat Singh, a wealthy inhabitant of the same
town. On Angat’s death, Alak Prakash, still a minor, inherited from him
properties of considerable value, Harangi with his family, including Gyana
Prakash, thereupon came to live with Alak Prakash in Angat’s house and managed
the properties as Alak’s guardian till the latter attained majority. But even
after that Harangi and Gyan continued to live with Alak Prakash in his house.
Facts of the
Case:
Case:
On February 27, 1913, Alak Prakash died
of phthisis at Patna leaving a young widow, Thakurani Kuer, and an infant
daughter Ranmandi Kuer, the appellant. In May following, an anonymous petition,
purporting to come from a well-wisher of the minor daughter of Alak Prakash,
was sent to the Collector of Patna in which it was stated that Harangi was
trying to secure the property for his second son.
of phthisis at Patna leaving a young widow, Thakurani Kuer, and an infant
daughter Ranmandi Kuer, the appellant. In May following, an anonymous petition,
purporting to come from a well-wisher of the minor daughter of Alak Prakash,
was sent to the Collector of Patna in which it was stated that Harangi was
trying to secure the property for his second son.
That petition was sent for enquiry to
the Sub-Divisional officer of Bihar, who, on June 1, 1913, called upon Harangi
Singh “to state what he has to say to these allegations” in the
petition, fixing June 16 next for hearing. On that date a petition for two
weeks’ time was filed on the ground that Harangi Singh 7 had gone on a
pilgrimage to Jagannathji (Puri), Time was allowed till July 1, but on that day
the enquiry was not further Proceeded with inasmuch as on the day previous,
viz., June 30, 1913, application had been made to the District Judge of Patna
on behalf of Gyan Prakash Singh for probate of the will alleged to have been
executed by Alak Prakash on February 2, 1913.
the Sub-Divisional officer of Bihar, who, on June 1, 1913, called upon Harangi
Singh “to state what he has to say to these allegations” in the
petition, fixing June 16 next for hearing. On that date a petition for two
weeks’ time was filed on the ground that Harangi Singh 7 had gone on a
pilgrimage to Jagannathji (Puri), Time was allowed till July 1, but on that day
the enquiry was not further Proceeded with inasmuch as on the day previous,
viz., June 30, 1913, application had been made to the District Judge of Patna
on behalf of Gyan Prakash Singh for probate of the will alleged to have been
executed by Alak Prakash on February 2, 1913.
A general citation was affixed to the
house of the deceased and another to the Court house in July. Affidavits by two
out of the twelve attesting witnesses to the will were filed on July 30, 1913.
Notices were issued to the widow and daughter of the testator and a report was made
by the serving officer showing that service of the notices was acknowledged on
behalf of a Thakurani Kuer “for self and as guardian of Ramanandi
Kuer” by one Awadh Bihari Singh, who described himself as the sister’s son
of Thakurani Kuer.
house of the deceased and another to the Court house in July. Affidavits by two
out of the twelve attesting witnesses to the will were filed on July 30, 1913.
Notices were issued to the widow and daughter of the testator and a report was made
by the serving officer showing that service of the notices was acknowledged on
behalf of a Thakurani Kuer “for self and as guardian of Ramanandi
Kuer” by one Awadh Bihari Singh, who described himself as the sister’s son
of Thakurani Kuer.
By the terms of this will the property
was bequeathed to the son of Alak Prakash if any should be born to his wife
Thakurani Kuer. In default of, such male issue, one village was bequeathed to
Thakurani Kuer for life, with remainder to the daughter Ramanandi and her issue
with ultimate remainder in default of issue of Ramanandi to Gyan Prakash Singh,
Another village was bequeathed in trust to Gyan Prakash Singh for vaguely
defined charitable purposes, while the residue, forming the bulk the property,
was bequeathed absolutely to Gyan Prakash.
was bequeathed to the son of Alak Prakash if any should be born to his wife
Thakurani Kuer. In default of, such male issue, one village was bequeathed to
Thakurani Kuer for life, with remainder to the daughter Ramanandi and her issue
with ultimate remainder in default of issue of Ramanandi to Gyan Prakash Singh,
Another village was bequeathed in trust to Gyan Prakash Singh for vaguely
defined charitable purposes, while the residue, forming the bulk the property,
was bequeathed absolutely to Gyan Prakash.
Observation of
Court:
Court:
Taking the whole of the evidence and
considering the position of both the doctors concerned, their Lordships agree
with the finding of the trial Court that Alak Prakash was in Patna and not in
Bihar on February 2, 1913, and that the will bearing date February 2, 1913, of
which probate was granted on March 25, 1914, is not the will of Alak Prakash
Singh and is a fabricated document.
considering the position of both the doctors concerned, their Lordships agree
with the finding of the trial Court that Alak Prakash was in Patna and not in
Bihar on February 2, 1913, and that the will bearing date February 2, 1913, of
which probate was granted on March 25, 1914, is not the will of Alak Prakash
Singh and is a fabricated document.
Judgement:
Their
Lordships will therefore humbly advise His Majesty that the judgment of the
High Court should be set aside and the judgment of the District Judge restored,
with costs of the appeal to the High Court and of this appeal.
Lordships will therefore humbly advise His Majesty that the judgment of the
High Court should be set aside and the judgment of the District Judge restored,
with costs of the appeal to the High Court and of this appeal.
——————————————————
Complete Judgement
BOMBAY HIGH COURT
RAMANANDI KUER VS KALAWATI KUER
ON 11-11-1927
ON 11-11-1927
Equivalent
citations: (1928) 30 BOMLR 227
citations: (1928) 30 BOMLR 227
Author:
Sinha
Sinha
Bench:
Sinha, Blanesburgh, J Wallis
Sinha, Blanesburgh, J Wallis
JUDGMENT
Sinha, J.
Sinha, J.
1. Harangi Singh of
Bihar, a small town in the District of Patna, had two sons (1) Alak Prakash and
(2) Gyan Prakash. Alak Prakash was given in adoption to Angat Singh, a wealthy
inhabitant of the same town. On Angat’s death, Alak Prakash, still a minor, inherited
from him properties of considerable value, Harangi with his family, including
Gyana Prakash, thereupon came to live with Alak Prakash in Angat’s house and
managed the properties as Alak’s guardian till the latter attained majority.
But even after that Harangi and Gyan continued to live with Alak Prakash in his
house.
Bihar, a small town in the District of Patna, had two sons (1) Alak Prakash and
(2) Gyan Prakash. Alak Prakash was given in adoption to Angat Singh, a wealthy
inhabitant of the same town. On Angat’s death, Alak Prakash, still a minor, inherited
from him properties of considerable value, Harangi with his family, including
Gyana Prakash, thereupon came to live with Alak Prakash in Angat’s house and
managed the properties as Alak’s guardian till the latter attained majority.
But even after that Harangi and Gyan continued to live with Alak Prakash in his
house.
2. On February 27,
1913, Alak Prakash died of phthisis at Patna leaving a young widow, Thakurani
Kuer, and an infant daughter Ranmandi Kuer, the appellant. In May following, an
anonymous petition, purporting to come from a well-wisher of the minor daughter
of Alak Prakash, was sent to the Collector of Patna in which it was stated that
Harangi was trying to secure the property for his second son.
1913, Alak Prakash died of phthisis at Patna leaving a young widow, Thakurani
Kuer, and an infant daughter Ranmandi Kuer, the appellant. In May following, an
anonymous petition, purporting to come from a well-wisher of the minor daughter
of Alak Prakash, was sent to the Collector of Patna in which it was stated that
Harangi was trying to secure the property for his second son.
3. That petition was
sent for enquiry to the Sub-Divisional officer of Bihar, who, on June 1, 1913,
called upon Harangi Singh “to state what he has to say to these
allegations” in the petition, fixing June 16 next for hearing. On that
date a petition for two weeks’ time was filed on the ground that Harangi Singh
7 had gone on a pilgrimage to Jagannathji (Puri), Time was allowed till July 1,
but on that day the enquiry was not further Proceeded with inasmuch as on the
day previous, viz., June 30, 1913, application had been made to the District Judge
of Patna on behalf of Gyan Prakash Singh for probate of the will alleged to
have been executed by Alak Prakash on February 2, 1913. A general citation was
affixed to the house of the deceased and another to the Court house in July.
Affidavits by two out of the twelve attesting witnesses to the will were filed
on July 30, 1913. Notices were issued to the widow and daughter of the testator
and a report was made by the serving officer showing that service of the
notices was acknowledged on behalf of a Thakurani Kuer “for self and as
guardian of Ramanandi Kuer” by one Awadh Bihari Singh, who described
himself as the sister’s son of Thakurani Kuer. Thereafter the order of grant of
probate was made by the District Judge on August 23, 1913, though questions having
arisen as to the amount of the probate duty payable, probate was not actually
issued till March 1914.
sent for enquiry to the Sub-Divisional officer of Bihar, who, on June 1, 1913,
called upon Harangi Singh “to state what he has to say to these
allegations” in the petition, fixing June 16 next for hearing. On that
date a petition for two weeks’ time was filed on the ground that Harangi Singh
7 had gone on a pilgrimage to Jagannathji (Puri), Time was allowed till July 1,
but on that day the enquiry was not further Proceeded with inasmuch as on the
day previous, viz., June 30, 1913, application had been made to the District Judge
of Patna on behalf of Gyan Prakash Singh for probate of the will alleged to
have been executed by Alak Prakash on February 2, 1913. A general citation was
affixed to the house of the deceased and another to the Court house in July.
Affidavits by two out of the twelve attesting witnesses to the will were filed
on July 30, 1913. Notices were issued to the widow and daughter of the testator
and a report was made by the serving officer showing that service of the
notices was acknowledged on behalf of a Thakurani Kuer “for self and as
guardian of Ramanandi Kuer” by one Awadh Bihari Singh, who described
himself as the sister’s son of Thakurani Kuer. Thereafter the order of grant of
probate was made by the District Judge on August 23, 1913, though questions having
arisen as to the amount of the probate duty payable, probate was not actually
issued till March 1914.
4. By the terms of this
will the property was bequeathed to the son of Alak Prakash if any should be
born to his wife Thakurani Kuer. In default of, such male issue, one village
was bequeathed to Thakurani Kuer for life, with remainder to the daughter
Ramanandi and her issue with ultimate remainder in default of issue of
Ramanandi to Gyan Prakash Singh, Another village was bequeathed in trust to
Gyan Prakash Singh for vaguely defined charitable purposes, while the residue,
forming the bulk the property, was bequeathed absolutely to Gyan Prakash.
will the property was bequeathed to the son of Alak Prakash if any should be
born to his wife Thakurani Kuer. In default of, such male issue, one village
was bequeathed to Thakurani Kuer for life, with remainder to the daughter
Ramanandi and her issue with ultimate remainder in default of issue of
Ramanandi to Gyan Prakash Singh, Another village was bequeathed in trust to
Gyan Prakash Singh for vaguely defined charitable purposes, while the residue,
forming the bulk the property, was bequeathed absolutely to Gyan Prakash.
5. After probate had
been granted, the name of Thakurani Kuer was entered in the Collector’s
registers in respect of the village bequeathed to her, while Gyan Prakash’s
name was similarly entered in respect of the remaining properties,
been granted, the name of Thakurani Kuer was entered in the Collector’s
registers in respect of the village bequeathed to her, while Gyan Prakash’s
name was similarly entered in respect of the remaining properties,
6. Harangi Singh died
in 1916 and Gyan Prakash died on November 23, 1918, leaving a minor widow, the
respondent, Kalawati Kuer. So long as Harangi and Gyan Prakash lived,
Thakurani, the widow, and Ramanandi, the daughter of Alak Prakash, lived under
their care and protection in the house of Alak Prakasb, exactly aa they would
have done if Alak Prakash had not been legally separated by adoption from his
natural father and brother but continued to form with them members of a joint
Hindu family.
in 1916 and Gyan Prakash died on November 23, 1918, leaving a minor widow, the
respondent, Kalawati Kuer. So long as Harangi and Gyan Prakash lived,
Thakurani, the widow, and Ramanandi, the daughter of Alak Prakash, lived under
their care and protection in the house of Alak Prakasb, exactly aa they would
have done if Alak Prakash had not been legally separated by adoption from his
natural father and brother but continued to form with them members of a joint
Hindu family.
7. On the death of Gyan
Prakash, his widow, Kalawati Kuer (who was then a minor), was entitled to
succeed him, but there was an agreement in writing on December 21, 1918,
purporting to be executed by her and Thakurani Kuer whereby the estate was to
be divided equally between them for life, with remainder to the daughter,
Ramanandi. This agreement was probably not legally enforceable as Kalawati was
a minor at the time and at any rate it was not acceptable to the father and
other relations of Kalawati Kuer, who removed her from the influence of
Thakurani Kuer in a manner which led to proceedings in the criminal Courts.
Disputes having thus arisen, proceedings for revocation of the probate were in
contemplation when Thakurani died. On January 10, 1922, proceedings were
actually instituted under Section 50 of Act V of 1881 on behalf of the minor
Ramanandi Kuer for revocation of the probate, on two grounds principally, viz.,
(1) that citations were not served either on her or on her mother, Thakurani,
before the grant of probate, and (2) that the will was a forgery. Objections
were filed on behalf of Kalawati Kuer and issues were framed, of which two only
are material for present purposes, viz.:
Prakash, his widow, Kalawati Kuer (who was then a minor), was entitled to
succeed him, but there was an agreement in writing on December 21, 1918,
purporting to be executed by her and Thakurani Kuer whereby the estate was to
be divided equally between them for life, with remainder to the daughter,
Ramanandi. This agreement was probably not legally enforceable as Kalawati was
a minor at the time and at any rate it was not acceptable to the father and
other relations of Kalawati Kuer, who removed her from the influence of
Thakurani Kuer in a manner which led to proceedings in the criminal Courts.
Disputes having thus arisen, proceedings for revocation of the probate were in
contemplation when Thakurani died. On January 10, 1922, proceedings were
actually instituted under Section 50 of Act V of 1881 on behalf of the minor
Ramanandi Kuer for revocation of the probate, on two grounds principally, viz.,
(1) that citations were not served either on her or on her mother, Thakurani,
before the grant of probate, and (2) that the will was a forgery. Objections
were filed on behalf of Kalawati Kuer and issues were framed, of which two only
are material for present purposes, viz.:
(1) Was no citation
served upon the plaintiff, i.e., Ramanandi Kuer Had she no knowledge of the
probate proceedings? Was she not properly represented in the probate
proceedings?
served upon the plaintiff, i.e., Ramanandi Kuer Had she no knowledge of the
probate proceedings? Was she not properly represented in the probate
proceedings?
(2) Is the will
propounded by the opposite party, i.e., Kalawati Kuer, the widow of (Gyan
Prakash, genuine or otherwise?
propounded by the opposite party, i.e., Kalawati Kuer, the widow of (Gyan
Prakash, genuine or otherwise?
8. There has been some
divergence of opinion in the Courts in India as regard the law and procedure
governing cases for revocation of probate, due in part to the introduction into
Indian practice of the difference in English law between the grant of probate
in common form and probate in solemn form. It is worse than unprofitable to
consider how far, if at all, that distinction has been incorporated into Indian
law. It has often been pointed out by this Board that where there is a positive
enactment of the Indian legislature the proper course is to examine the
language of that statute and to ascertain its proper meaning, uninfluenced by
any consideration derived from the previous state of the lawor of the English
law upon which it may be founded.
divergence of opinion in the Courts in India as regard the law and procedure
governing cases for revocation of probate, due in part to the introduction into
Indian practice of the difference in English law between the grant of probate
in common form and probate in solemn form. It is worse than unprofitable to
consider how far, if at all, that distinction has been incorporated into Indian
law. It has often been pointed out by this Board that where there is a positive
enactment of the Indian legislature the proper course is to examine the
language of that statute and to ascertain its proper meaning, uninfluenced by
any consideration derived from the previous state of the lawor of the English
law upon which it may be founded.
9. These observations
apply with peculiar force to testamentary cases which are governed by the
Indian Succession Act of 1865 or the Probate and Administration Act of 1881 (both
now repealed by the Indian Succession Act of 1925). As Sir A. Wilson observed,
in delivering the judgment of this Board in the case of Kurrutulain Bahadur v.
Nuzbat-ud-Dowla Abbas Hosseim Khan (1906) I.L.B. 33 Cal. 116, s.c. 7 Bom. L.R.
876, p.c. these Acts while to a large extent embodying the rules of English law
on the subject yet departed in many particulars from those rules; and in the
progress of the development of the law and practice in testamentary cases, the
ecclesiastical origin of “this jurisdiction of the Courts in England has
been completely discarded; and the Indian legislature has gradually evolved an
independent system of its own, largely suggested, no doubt, by English law but
also differing much from that law and purporting to be a self-contained system.
apply with peculiar force to testamentary cases which are governed by the
Indian Succession Act of 1865 or the Probate and Administration Act of 1881 (both
now repealed by the Indian Succession Act of 1925). As Sir A. Wilson observed,
in delivering the judgment of this Board in the case of Kurrutulain Bahadur v.
Nuzbat-ud-Dowla Abbas Hosseim Khan (1906) I.L.B. 33 Cal. 116, s.c. 7 Bom. L.R.
876, p.c. these Acts while to a large extent embodying the rules of English law
on the subject yet departed in many particulars from those rules; and in the
progress of the development of the law and practice in testamentary cases, the
ecclesiastical origin of “this jurisdiction of the Courts in England has
been completely discarded; and the Indian legislature has gradually evolved an
independent system of its own, largely suggested, no doubt, by English law but
also differing much from that law and purporting to be a self-contained system.
10. Now so far as the
present case is concerned, the law is to be found in the Probate and
Administration Act of 1881. Section 50 of that Act, so far as it is relevant,
runs as follows:
present case is concerned, the law is to be found in the Probate and
Administration Act of 1881. Section 50 of that Act, so far as it is relevant,
runs as follows:
The grant of
probate…may be revoked or annulled for just cause. Explanation.-Just cause’
is 1st, that the proceedings to obtain the grant were defective in substance;
probate…may be revoked or annulled for just cause. Explanation.-Just cause’
is 1st, that the proceedings to obtain the grant were defective in substance;
2nd, that the grant was
obtained fraudulently by making a false suggestion, or by concealing from the
Court something material to the case.
obtained fraudulently by making a false suggestion, or by concealing from the
Court something material to the case.
The relevant
illustrations to the section are:
illustrations to the section are:
(b) The grant was made
without citing parties who ought to have been cited.
without citing parties who ought to have been cited.
(c) The will of which
probate was obtained was forged or revoked.
probate was obtained was forged or revoked.
11. It is apparent that
the plaintiff in the case set up both these grounds for revocation. The first
issue as framed comes under illustration (b) and the second issue under
illustration (c).
the plaintiff in the case set up both these grounds for revocation. The first
issue as framed comes under illustration (b) and the second issue under
illustration (c).
12. If these issues
were tried separately and the plaintiff succeeded on the first issue, that in
itself would be sufficient for revoking probate; but it would still be open to
the defendant to prove the will and, if she succeeded, the probate would stand.
were tried separately and the plaintiff succeeded on the first issue, that in
itself would be sufficient for revoking probate; but it would still be open to
the defendant to prove the will and, if she succeeded, the probate would stand.
13. If, on the other
hand, the plaintiff failed on the first issue, that would not preclude her from
proceeding to prove her second ground, viz., that the will was forged, and the
probate would stand or fall, according to the result.
hand, the plaintiff failed on the first issue, that would not preclude her from
proceeding to prove her second ground, viz., that the will was forged, and the
probate would stand or fall, according to the result.
14. It is obvious that
the question of onus of proof is therefore of great importance in this case,
and the District Judge as well as the High Court on appeal rightly lay stress
as to the onus on each of these two issues, which might have been tried
separately but wore not so in fact, as evidence was given by each party in
support of their respective cases on both issues together and not separately.
Their Lordships agree with the Courts below that in the circumstances of this
case neither party was prejudiced by the procedure adopted.
the question of onus of proof is therefore of great importance in this case,
and the District Judge as well as the High Court on appeal rightly lay stress
as to the onus on each of these two issues, which might have been tried
separately but wore not so in fact, as evidence was given by each party in
support of their respective cases on both issues together and not separately.
Their Lordships agree with the Courts below that in the circumstances of this
case neither party was prejudiced by the procedure adopted.
15. In considering the
evidence on each of the two issues set out above, their Lordships bear in mind
that the application for revocation was made eight years after the grant, and
after the persons principally concerned in the original proceedings, viz.,
Harangi Singh, Gyan Prakash, Thakurani Kuer and most of the witnesses to the
alleged will were dead, and that in accordance with the practice of the Indian
Courts, some portion of the original records of the Court in the probate
proceedings, including the affidavits of the two attesting witnesses, had been
destroyed. These are all circumstances which would make it difficult for the
defendant to prove her case.
evidence on each of the two issues set out above, their Lordships bear in mind
that the application for revocation was made eight years after the grant, and
after the persons principally concerned in the original proceedings, viz.,
Harangi Singh, Gyan Prakash, Thakurani Kuer and most of the witnesses to the
alleged will were dead, and that in accordance with the practice of the Indian
Courts, some portion of the original records of the Court in the probate
proceedings, including the affidavits of the two attesting witnesses, had been
destroyed. These are all circumstances which would make it difficult for the
defendant to prove her case.
16. On the other hand,
certain other circumstances have to be considered in favour of the plaintiff.
The will, if not absolutely inofficious, is adverse to the interests of the
widow of the alleged testator and his only child. The former was an illiterate
parda-nashin lady, and the latter a child only two years old when the testator
died. Both mother and child were living under the immediate protection of those
who were propounding the will, and, so far as appears from the evidence, there
were no relations of the widow either in her husband’s adoptive family or on
her father’s side who could protect their interest as against those of Harangi
Singh and Gyan Prakash. It is true that Thakurani Kuer afterwards more or less
acquiesced in the provisions of the will and in any case took no active steps
against the will so long as Harangi and Gyan were alive : but having regard to
all the circumstances, their Lordships are unable to draw any inference
therefrom adverse to the plaintiff. And as against the difficulties in the
defendant’s way by reason of lapse of time, death of parties and witnesses and
the destruction of records, it has to be remembered that much of it might have
been avoided by prudent action on the part of the propounder, e. g., by taking
proper and necessary steps to have the will proved ‘per teetes in the presence
of an independent guardian for the infant daughter. Their Lordships cannot endorse
the view taken by Mr. Justice Das that, if a guardian ad litem had been
assigned for her, Thakurani Kuer would have been so appointed, if all the
circumstances were fully placed before the Court.
certain other circumstances have to be considered in favour of the plaintiff.
The will, if not absolutely inofficious, is adverse to the interests of the
widow of the alleged testator and his only child. The former was an illiterate
parda-nashin lady, and the latter a child only two years old when the testator
died. Both mother and child were living under the immediate protection of those
who were propounding the will, and, so far as appears from the evidence, there
were no relations of the widow either in her husband’s adoptive family or on
her father’s side who could protect their interest as against those of Harangi
Singh and Gyan Prakash. It is true that Thakurani Kuer afterwards more or less
acquiesced in the provisions of the will and in any case took no active steps
against the will so long as Harangi and Gyan were alive : but having regard to
all the circumstances, their Lordships are unable to draw any inference
therefrom adverse to the plaintiff. And as against the difficulties in the
defendant’s way by reason of lapse of time, death of parties and witnesses and
the destruction of records, it has to be remembered that much of it might have
been avoided by prudent action on the part of the propounder, e. g., by taking
proper and necessary steps to have the will proved ‘per teetes in the presence
of an independent guardian for the infant daughter. Their Lordships cannot endorse
the view taken by Mr. Justice Das that, if a guardian ad litem had been
assigned for her, Thakurani Kuer would have been so appointed, if all the
circumstances were fully placed before the Court.
17. On the first issue,
the conclusion of the District Judge may be best given in his own words :
the conclusion of the District Judge may be best given in his own words :
I cannot definitely
find that the citation was not served upon her (Thakurani Kuer) but I do not
consider that it has been proved that she was served or that she had any
knowledge of the application for probate.
find that the citation was not served upon her (Thakurani Kuer) but I do not
consider that it has been proved that she was served or that she had any
knowledge of the application for probate.
18. As regards the
daughter, he considered that if the special citation had been properly served
upon Thakurani Ramanadi would have been properly represented in those
proceedings.
daughter, he considered that if the special citation had been properly served
upon Thakurani Ramanadi would have been properly represented in those
proceedings.
19. On these findings,
it is hardly correct to say, as Mr. Justice Das does, that the District Judge
was satisfied that citation was properly served on Thakurani. It would be more
accurate to say that though the District Judge was doubtful as to the actual
service, he did not feel justified in definitely finding that she had not been
served with the citation, In other words the District Judge found himself
unable to come to any conclusion whether the notice was actually served upon
her or not, The High Court considered that the failure on the part of the
plaintiff to examine Awadh Behari was fatal to her case that no citation was
served on Thakurani.
it is hardly correct to say, as Mr. Justice Das does, that the District Judge
was satisfied that citation was properly served on Thakurani. It would be more
accurate to say that though the District Judge was doubtful as to the actual
service, he did not feel justified in definitely finding that she had not been
served with the citation, In other words the District Judge found himself
unable to come to any conclusion whether the notice was actually served upon
her or not, The High Court considered that the failure on the part of the
plaintiff to examine Awadh Behari was fatal to her case that no citation was
served on Thakurani.
20. This renders it
necessary to examine the position of Awadh Behari.
necessary to examine the position of Awadh Behari.
21. Mr. Justice Das was
not prepared to hold that Awadh Behari was related either to Thakurani, as
defendant’s witnesses deposed, or to Harangi Singh, as plaintiff’s witnesses
said; but he concluded that Awadh Behari was more or less under the control of
the plaintiff and should have been called by her as a witness on her behalf,
chiefly for the reason that there was evidence of her own witnesses on two
points (1) that at the dates when these proceedings were going on before the
District Judge, Awadh Behari was actually in the service of Thakurani’s sister
as a cook; and (2) that Awadh in Thakurani’s lifetime signed many documents on
her behalf.
not prepared to hold that Awadh Behari was related either to Thakurani, as
defendant’s witnesses deposed, or to Harangi Singh, as plaintiff’s witnesses
said; but he concluded that Awadh Behari was more or less under the control of
the plaintiff and should have been called by her as a witness on her behalf,
chiefly for the reason that there was evidence of her own witnesses on two
points (1) that at the dates when these proceedings were going on before the
District Judge, Awadh Behari was actually in the service of Thakurani’s sister
as a cook; and (2) that Awadh in Thakurani’s lifetime signed many documents on
her behalf.
22. Their Lordships
think little importance can be attached to the first; nor to the second either,
inasmuch as all the documents in question, except one, were signed at a time
when Thakurani was still living as a dependent female member of the family of
which the actual head was either Harangi or Gyan. The only document referred to
in this connection and bearing date subsequent to the death of Gyan Prakash is
Exhibit P, which Awadh signed on behalf of both Thakurani and Kalawati and in
which he describe himself as the sister’s son of Thakurani and as brother of
Kalawatiboth statements being equally incorrect.
think little importance can be attached to the first; nor to the second either,
inasmuch as all the documents in question, except one, were signed at a time
when Thakurani was still living as a dependent female member of the family of
which the actual head was either Harangi or Gyan. The only document referred to
in this connection and bearing date subsequent to the death of Gyan Prakash is
Exhibit P, which Awadh signed on behalf of both Thakurani and Kalawati and in
which he describe himself as the sister’s son of Thakurani and as brother of
Kalawatiboth statements being equally incorrect.
23. It would rather
appear from the evidence that Awadh Behari, though belonging to the same caste,
occupied at the time of the alleged service the position of a servant in the
family, and was presumably under the control of the male head thereof and
subject to his direction.
appear from the evidence that Awadh Behari, though belonging to the same caste,
occupied at the time of the alleged service the position of a servant in the
family, and was presumably under the control of the male head thereof and
subject to his direction.
24. Under these
circumstances, their Lordships do not consider that the plaintiff could be
reasonably required to call Awadh Behari as her witness for the purpose of
contradicting his own previous statement.
circumstances, their Lordships do not consider that the plaintiff could be
reasonably required to call Awadh Behari as her witness for the purpose of
contradicting his own previous statement.
25. In their Lordships’
opinion, even if some kind of formality was gone through on the occasion when
service of notice is said to have been effected, it was not such as would give
to the person alleged to have been served an opportunity either to oppose the
grant of probate or to require the will to be proved in her presence. In the
peculiar circumstances of the case the service, if any, was of no greater
effect in law than personal service on an infant of tender years.
opinion, even if some kind of formality was gone through on the occasion when
service of notice is said to have been effected, it was not such as would give
to the person alleged to have been served an opportunity either to oppose the
grant of probate or to require the will to be proved in her presence. In the
peculiar circumstances of the case the service, if any, was of no greater
effect in law than personal service on an infant of tender years.
26. The result is that
the first issue must be decided in favour of the plaintiff.
the first issue must be decided in favour of the plaintiff.
27. With regard to the
second issue as to whether the will was forged or genuine, the onus of proof
depends upon the finding on the first issue. If citations were not served, i.
e., properly and effectively served, on Thakurani, the daughter is entitled to
ask that probate which was obtained in her absence should be recalled and the
executor or his representative called upon to prove the will in the present
proceeding. In other words, the onus of proving that the will was genuine is,
in view of their Lordships’ conclusion upon the first issue, upon the
defendant. It was candidly admitted by counsel on the latter’s behalf that if
it was held that the onus was on her to prove the genuineness of the will, he
could not contend that she had discharged that onus. He rested her case on the
ground that the onus was on the plaintiff to prove that the will was forged,
and that the plaintiff’s evidence fell short of proving that the will was a
forgery even if the circumstances connected with it might appear suspicious.
second issue as to whether the will was forged or genuine, the onus of proof
depends upon the finding on the first issue. If citations were not served, i.
e., properly and effectively served, on Thakurani, the daughter is entitled to
ask that probate which was obtained in her absence should be recalled and the
executor or his representative called upon to prove the will in the present
proceeding. In other words, the onus of proving that the will was genuine is,
in view of their Lordships’ conclusion upon the first issue, upon the
defendant. It was candidly admitted by counsel on the latter’s behalf that if
it was held that the onus was on her to prove the genuineness of the will, he
could not contend that she had discharged that onus. He rested her case on the
ground that the onus was on the plaintiff to prove that the will was forged,
and that the plaintiff’s evidence fell short of proving that the will was a
forgery even if the circumstances connected with it might appear suspicious.
28. Their Lordships
have, however, come to the conclusion that apart from any question of onus, the
plaintiff has succeeded in proving that the will is not a genuine document for
the reasons given below.
have, however, come to the conclusion that apart from any question of onus, the
plaintiff has succeeded in proving that the will is not a genuine document for
the reasons given below.
29. It is a
circumstance which cannot be ignored that though care was taken to obtain as
many as fourteen attesting witnesses to the will, the simple precaution of
getting the will registered at the local registration office was not adopted,
even though registration of wills is not compulsory. Nor can it be considered
anything but unusual and suspicious that no doctor or lawyer attested this
will, specially in view of its provisions practically disinheriting the widow
and the only daughter and the serious nature of the illness. Immediately after
the testator’s death, Harangi Singh purported to act as proprietor of the
estate in paying Government Revenue and in granting receipts to tenants of the
estatea position wholly inconsistent with the provisions of the will. Then
again the will was not produced or probate applied for until Harangi Singh had
been called upon to explain his above-mentioned conduct. There is further the
evidence of at least three witnesses, viz., Khan Bahadur Saujid Mahomed Nur of
Bihar and Babu Dhanukdhari Tewana, pleader of Bihar, that after the Collector
directed enquiry to be made into the allegations made in the anonymous petition
mentioned earlier in this judgment, Harangi Singh tried to get these witnesses
to attest a will in favour of Gyan Prakash, The District Judge, before whom
these witnesses were examined, believed their evidence. Their Lordships do not
agree with the High Court that the story in inherently improbable or that any
suspicion attaches to it because they did not of their own motion inform the authorities
of such contemplated forgery.
circumstance which cannot be ignored that though care was taken to obtain as
many as fourteen attesting witnesses to the will, the simple precaution of
getting the will registered at the local registration office was not adopted,
even though registration of wills is not compulsory. Nor can it be considered
anything but unusual and suspicious that no doctor or lawyer attested this
will, specially in view of its provisions practically disinheriting the widow
and the only daughter and the serious nature of the illness. Immediately after
the testator’s death, Harangi Singh purported to act as proprietor of the
estate in paying Government Revenue and in granting receipts to tenants of the
estatea position wholly inconsistent with the provisions of the will. Then
again the will was not produced or probate applied for until Harangi Singh had
been called upon to explain his above-mentioned conduct. There is further the
evidence of at least three witnesses, viz., Khan Bahadur Saujid Mahomed Nur of
Bihar and Babu Dhanukdhari Tewana, pleader of Bihar, that after the Collector
directed enquiry to be made into the allegations made in the anonymous petition
mentioned earlier in this judgment, Harangi Singh tried to get these witnesses
to attest a will in favour of Gyan Prakash, The District Judge, before whom
these witnesses were examined, believed their evidence. Their Lordships do not
agree with the High Court that the story in inherently improbable or that any
suspicion attaches to it because they did not of their own motion inform the authorities
of such contemplated forgery.
30. There is a total
lack of evidence as regards the preparation of the draft and the engrossment of
the will and the whole case for the will rests on the bare testimony of two out
of the four attesting witnesses, whom the trial Judge did not believe. The two
other attesting witnesses admitted their signatures on the will but alleged
that their signatures were obtained by Harangi Singh by false representations
as to the nature of the document, which they did not read at the time when they
put their signatures upon it. The story related by these two latter may not be
worthy of credit in all respects, and if it rested by itself would be of little
use to the plaintiff’s case. The District Judge also rightly refused to attach
any importance to such evidence as was given as to the signature on the will
not being that of Alak Prakash. It was certainly not expert evidence in any
sense.
lack of evidence as regards the preparation of the draft and the engrossment of
the will and the whole case for the will rests on the bare testimony of two out
of the four attesting witnesses, whom the trial Judge did not believe. The two
other attesting witnesses admitted their signatures on the will but alleged
that their signatures were obtained by Harangi Singh by false representations
as to the nature of the document, which they did not read at the time when they
put their signatures upon it. The story related by these two latter may not be
worthy of credit in all respects, and if it rested by itself would be of little
use to the plaintiff’s case. The District Judge also rightly refused to attach
any importance to such evidence as was given as to the signature on the will
not being that of Alak Prakash. It was certainly not expert evidence in any
sense.
31. But the crucial
point in the case iswhere was Alak Prakash living on February 2, 1913 (the date
of the alleged will)at Patna, or in Bihar ?
point in the case iswhere was Alak Prakash living on February 2, 1913 (the date
of the alleged will)at Patna, or in Bihar ?
32. The plaintiff’s
case is that at the date of the alleged execution of the will, Alak Prakash was
in Patna under the treatment of Dr. Jyotish Chandra Sen, L.M.S. (Calcutta), who
practised at Patna, and also of Dr. Barat, a teacher of the Temple Medical
School.
case is that at the date of the alleged execution of the will, Alak Prakash was
in Patna under the treatment of Dr. Jyotish Chandra Sen, L.M.S. (Calcutta), who
practised at Patna, and also of Dr. Barat, a teacher of the Temple Medical
School.
33. On the defendant’s
side a number of witnesses were called to prove that Alak Prakash came to Patna
on February 4 or 5 that while there he was treated only by hakims and not by
any doctors, and that he did not stay in that quarter of Patna which is called
Jhauganj but in quite a different quarter called Badshahganj.
side a number of witnesses were called to prove that Alak Prakash came to Patna
on February 4 or 5 that while there he was treated only by hakims and not by
any doctors, and that he did not stay in that quarter of Patna which is called
Jhauganj but in quite a different quarter called Badshahganj.
34. Both the District
Judge and the High Court have disbelieved these witnesses for the defendant and
found that Alak Prakash rented a house in Jhauganj-Patna, and was treated, not
by hakims, but by Dr. Sen and Dr. Barat. The District Judge came 1927 to the
conclusion upon the evidence that Alak Prakash was at Patna before February 2,
and therefore that the story of his A having executed the will at Bihar on that
date was false.
Judge and the High Court have disbelieved these witnesses for the defendant and
found that Alak Prakash rented a house in Jhauganj-Patna, and was treated, not
by hakims, but by Dr. Sen and Dr. Barat. The District Judge came 1927 to the
conclusion upon the evidence that Alak Prakash was at Patna before February 2,
and therefore that the story of his A having executed the will at Bihar on that
date was false.
35. The High Court,
however, came to a different conclusion, and Mr. Justice Das says with regard
to that part of the case :Lord~8inha The critical question then is, did Alak
Prakash come to Patna before February 2, 1913? On this point the petitioner
relies on the evidence of Dr. J.C. Sen and Dr. Barat…. Dr. Barat is an
Assistant Surgeon and is a witness of undoubted position and respectability.
His evidence is to the effect that he was called to see a patient of Dr. J.C.
Sen at Jhauganj in a house on the-bank of the Ganges. He visited the patient in
consultation with Dr. J.C. Sen on four or five occasions spread over one or two
weeks. He made a report on the urine of the patient on February 13, 1913…. I
have no doubt whatever that Dr. Barat actually treated Alak Prakash and made a
report on the urine of Alak Prakash, But the report is dated February 13, 1913,
and it is impossible on the evidence of Dr. Barat to say that Alak Prakash came
to Patna before February 2, 1913. I entirely accept the evidence of Dr. Barat,
but in my opinion it does not touch the point which we have to consider in this
case. I now come to the evidence of Dr. J.C. Sen.
however, came to a different conclusion, and Mr. Justice Das says with regard
to that part of the case :Lord~8inha The critical question then is, did Alak
Prakash come to Patna before February 2, 1913? On this point the petitioner
relies on the evidence of Dr. J.C. Sen and Dr. Barat…. Dr. Barat is an
Assistant Surgeon and is a witness of undoubted position and respectability.
His evidence is to the effect that he was called to see a patient of Dr. J.C.
Sen at Jhauganj in a house on the-bank of the Ganges. He visited the patient in
consultation with Dr. J.C. Sen on four or five occasions spread over one or two
weeks. He made a report on the urine of the patient on February 13, 1913…. I
have no doubt whatever that Dr. Barat actually treated Alak Prakash and made a
report on the urine of Alak Prakash, But the report is dated February 13, 1913,
and it is impossible on the evidence of Dr. Barat to say that Alak Prakash came
to Patna before February 2, 1913. I entirely accept the evidence of Dr. Barat,
but in my opinion it does not touch the point which we have to consider in this
case. I now come to the evidence of Dr. J.C. Sen.
36. Then after quoting
the evidence of Dr. Sen, the learned Judge proceeds :
the evidence of Dr. Sen, the learned Judge proceeds :
Giving his evidence on
December 20, 1921, and without any documents to support his evidence, Dr. J.C.
Sen was able to say that Alak Prakash came to Patna six: weeks or two months
before his death (in 1913). He admits that he has no documentary record of his
treatment of Alak Prakash. It may be that Dr. Sen has a prodigious memory, but
in my opinion it would be most unsafe to act on this evidence given nine years
after the death of Alak Prakash in support of the case of the petitioner that
Alak Prakash was not residing in Bihar on the day on which he is alleged to
have executed the will. In my opinion, it has not been established that Alak
Prakaah was not actually residing in Bihar on February 2, 1913.
December 20, 1921, and without any documents to support his evidence, Dr. J.C.
Sen was able to say that Alak Prakash came to Patna six: weeks or two months
before his death (in 1913). He admits that he has no documentary record of his
treatment of Alak Prakash. It may be that Dr. Sen has a prodigious memory, but
in my opinion it would be most unsafe to act on this evidence given nine years
after the death of Alak Prakash in support of the case of the petitioner that
Alak Prakash was not residing in Bihar on the day on which he is alleged to
have executed the will. In my opinion, it has not been established that Alak
Prakaah was not actually residing in Bihar on February 2, 1913.
37. Apart from the fact
that there is other evidence to prove that Alak Prakash resided in Patna for
nearly two months before his death, it does not appear to their Lordships that
in the case of Dr. Sen it was such a prodigious feat of memory as the learned
Judge supposed, Alak Prakash was an old patient of Dr. Sen who had treated him
three years before his death and had been to Bihar three or four times to treat
him, the last time in December, 1912. When Alak Prakash came on the last occasion
to Patna, he rented a house on the banks of the river which Dr. Sen had himself
occupied before and which was under half a mile from the house in which Dr. Sen
was himself residing. He visited him three or four times daily all the time he
remained in Patna. He said that he treated him in Patna for two or three weeks
before calling in any consultant and that Dr. Barat came in as consultant
during the last two or three weeks of the illness, and that Colonel Sunder also
came three or four times, i. e., after the first two or three weeks of Alak
Prakash’s stay in Patna.
that there is other evidence to prove that Alak Prakash resided in Patna for
nearly two months before his death, it does not appear to their Lordships that
in the case of Dr. Sen it was such a prodigious feat of memory as the learned
Judge supposed, Alak Prakash was an old patient of Dr. Sen who had treated him
three years before his death and had been to Bihar three or four times to treat
him, the last time in December, 1912. When Alak Prakash came on the last occasion
to Patna, he rented a house on the banks of the river which Dr. Sen had himself
occupied before and which was under half a mile from the house in which Dr. Sen
was himself residing. He visited him three or four times daily all the time he
remained in Patna. He said that he treated him in Patna for two or three weeks
before calling in any consultant and that Dr. Barat came in as consultant
during the last two or three weeks of the illness, and that Colonel Sunder also
came three or four times, i. e., after the first two or three weeks of Alak
Prakash’s stay in Patna.
38. The District Judge
who saw and heard Dr. Sen in the witness box believed his evidence on this
material point, and their Lordships consider it impossible to reject it without
ascribing to a member of an honourable profession deliberate falsehood, for
which no ground has been made out.
who saw and heard Dr. Sen in the witness box believed his evidence on this
material point, and their Lordships consider it impossible to reject it without
ascribing to a member of an honourable profession deliberate falsehood, for
which no ground has been made out.
39. Taking the whole of
the evidence and considering the position of both the doctors concerned, their
Lordships agree with the finding of the trial Court that Alak Prakash was in
Patna and not in Bihar on February 2, 1913, and that the will bearing date
February 2, 1913, of which probate was granted on March 25, 1914, is not the
will of Alak Prakash Singh and is a fabricated document.
the evidence and considering the position of both the doctors concerned, their
Lordships agree with the finding of the trial Court that Alak Prakash was in
Patna and not in Bihar on February 2, 1913, and that the will bearing date
February 2, 1913, of which probate was granted on March 25, 1914, is not the
will of Alak Prakash Singh and is a fabricated document.
40. Their Lordships
will therefore humbly advise His Majesty that the judgment of the High Court
should be set aside and the judgment of the District Judge restored, with costs
of the appeal to the High Court and of this appeal.
will therefore humbly advise His Majesty that the judgment of the High Court
should be set aside and the judgment of the District Judge restored, with costs
of the appeal to the High Court and of this appeal.
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