JUDGMENT
Jamuar, J.
1. This appeal arises out of an application, filed by one Chander Kishore Saran for grant of pro-
bate of the Jast will of Ramrati Kuer, widow of Ram Kishore Saran. The Additional District Judge of Patna, by his judgment dated 21-8-1947, held that the applicant was entitled to the grant of probate as prayed for, and thus allowed the application. This appeal was, accordingly, filed by the objector, Nand Kumar Singh alias Nanhu Singh. The following pedigree will disclose the relationship between the applicant and the objector.
2. Kali Charan was one of four brothers, and he had two sons, Ram Kishore Saran and Raj Kishore Saran. The applicant, Chandra Kishore Saran, is one of the tnree sons of Rajkishore Saran. The will in question is said to have been executed by Ramrati Kuer, the second wife of Ram Kishore Saran. The objector, Nand Kumar Singh alias Nanhoo Singh, is the son of the daughter, named Kamla Kuer, by the first wife, named Barti Kuer, of Ram Kishore Saran.
3. Ramrati Kuer died at Ayodhya in the district of Fyzabad in Uttar Pradesh on 27-12-1940. She was a resident of a village called Gopalpur, police station Maner, in the district of Patna where her husband used to live. Since some time prior to her death, she had been living at Ayodhya, and had been ill. The evidence is that she used to come to her village, Gopalpur, from Ayodhya twice in the year, that is, in the months of May and September. For the last time she had gone to Gopalpur in the month of September 1940, and, on her way back to Ayodhya, she stayed in Patna. and had executed her will on 22-9-1940, in favour of Chandra Kishore Saran.
Ramrati Kuer herself had no issue. Her husband, Ham Kishore Saran, had given her all his properties before his death and after separation from his brother and other agnates by executing a deed of gift on 5-8-1923, in her favour. The execution of this deed of gift is not disputed. In the absence of such a deed of gift, Ramrati Kuer would have certainly succeeded to all the properties of her husband, but she would have obtained only a life interest, and on her death, the properties would have passed to the daughter (named Kamla Kuer) of her husband by his first wife, and who would be her step-daughter.
Ramrati Kuer hud brought up Chandra Kishore Saran as her son since the life-time of her husband, and had been much attached to him. She had even executed two deeds of gift in 1927 and 1936, respectively in respect of two houses in favour of Chandra Kishore Saran prior to the execution” of her will, and then, finally, decided to give Chandra Kishore Saran the rest of the properties, of which she was possessed, and this she did by the execution of the said will on 22-9-1940,
4. The appellant who, as I have stated, was the objector in the Court below, alleged that the will propounded by the respondent is not the will of Ramrati Kuer, who was a pardanashin lady, and had not the mental capacity to execute a will or to understand the nature of such a transaction. According to the objector, the will is not a genuine one. It was even denied by him that Ramrati Kuer had come to Patna in September 1940. His case was that she had been living at Ayodhya since four or five years prior to her death, and never came to Patna during this period of time, and, owing to her illness and infirmity, she had been unable to leave Ayodhya for about a year before her death.
The applicant looked after her and managed her properties as well since the death of her husband and thus he had occasions to obtain her thumb mark on blank sheets of paper for being
used in law courts, and it was suggested that it may well be that the will propounded was drawn up on such a blank sheet of paper. With regard to the witnesses who attested the will, it was alleged that they are either relations or under the control of the respondent, and thus they were supporting his case.
5. The argument advanced in support of this appeal was that the will is a wholly unnatural will, and that the circumstance that the applicant is the sole legatee under that will ought to raise the suspicion of the Court, and probate of it ought not to be granted unless the propounder adduced evidence removing such suspicion and satisfied the Court that the testator or the testatrix knew and approved of the contents of the instrument. The will, it may be stated, was not registered. It was executed at Patina on a Sunday (22-9-1940), and Ramrati Kuer left Patna for Ayodhya the same night.
6. The argument for the respondent, on the other hand, was that the will was quite a natural will, and it can raise no suspicion in the mind of the Court. The legatee had been brought up by Ramrati Kuer who was much attached to him. It was pointed out that the fact that Ramrati Kuer had obtained a deed of gift from her husband in 1923 would show that she was averse to her husband’s properties going to her step-daughter (the daughter of her husband by his first wife), and wanted sole control over those properties. The respondent was admittedly looking after her. In the year 1927, she executed the first deed of gift, exhibit 3(a), in favour of the respondent by which she gave her house situated in Mohalla Kadamkuan of Patna town to him. In this deed of gift, she stated as follows: —
“At the time of his (her husband’s) death, and even before that, he had directed me, the executant, to treat Babu Chander Kishore Saran in the same manner as he did during his life-time and to give him exclusively the house situate in Bankipur: I, the executant, am in duty bound to respect the words of my husband and carry out his orders. Consequently, I, the executant, maintained and brought up Babu Chandra Kishore Saran with more love and affection than my husband. Chander Kishore Saran also has all along been serviceable and obedient to me. Now, I, the executant have become very weak on account of illness and I have little hope of life. Consequently, in consultation with well-wishers and legal advisors, it has been decided that the house situate in Mohalla Salimpur Qadam Kuan be given in gift to Babu Chander Kishore Saran”.
7. The second deed of gift, exhibit 3(b), was executed in 1936, and by it she gave her house in village Gopalpur to Chandra Kishore Saran, and there again she said: —
“I, the executant, declare that Chandra Kishore Saran is my Jaut, i.e., the nephew of my husband, and he has always been obedient, faithful and serviceable to me. …. I, the executant,
have begun to love Chandra Kishore Saran like my own son. I, the executant, have, in lieu of obedience, service, love and affection, given in gift 1 bigha 2 kathas 10 biswanies of land together with the house situate in Mouza Rasoolpur Bijai Gopalpur otherwise called as Gopalpur…..”
8. There is one other fact which may be mentioned. In the year 1930, Kamla Kuer, the step-daughter of Ramrati Kuer, had filed a title suit apparently with the intention of setting aside the deed of gift which had been executed by her father in 1923, in favour of Ramrati Kuer. The case was, ultimatelly, abandoned by Kamla Kuer, and the gift made by her father was admitted as agenuine transaction as also the gift which Ramrati Kuer had mode of her Patna house to Chandra Kishore Saran. Kamala Kuer executed a deed of relinquishment, exhibit 4, on 25-3-1931, and therein she stated as follows:
“The father of me, the executant, had no male issue either from the womb of my mother or from that of Mt. Ramrati Kuer aforesaid. Therefore, the father of me, the executant, kept Babu Chander Kishore Saran, his nephew, with him and imparted education and maintained him. He always kept Babu Chander Kishore Saran with him at his house sittiate at Quadam Kuan in the town of Bankipore, Babu Ram Kishore Saran (that is, her father), deceased, had fatherly affection with Babu Chander Kishore Saran…..As she (Ramrati
Kuer) was his second wife and as she was highly obedient and serviceable to her husband and they greatly loved each other, he thought that he should give some property to Ramrati Kuer permanently. But, as he was one of the members of the joint family, no deed could be executed as a member of the joint family. Accordingly, he become separate from his nephews and a deed of partition dated 11-8-23 was executed by the father of me, the executant, and his nephews, and thereafter the father of me, the executant, made Mt. Ramrati Kuer owner of his entire property under a deed of gift, dated 15-8-23, and put her in possession and occupation thereof …..”
And then she made the following important statement :
“The father of me, the executant, had expressed his desire to Mt. Ramarati Kuer that the house situate in Mohalla Qadam Kuan be given to Chander Kishore Saran. Accordingly, after his death, Mt. Ramrati Kuer, with a view to carry out the directions of her husband and in recognition of the services and obedience rendered by Chander Kishore Saran executed a deed of gift dated 28-5-27 in favour of Chander Kishore Saran in respect of the house situate in Mohalla Qadam Kuan and put him in possession and occupation thereof after delivering absolute title to him”.
9. In the will, exhibit 1, propounded in this case, it was also stated that Ramrati Kuer had loved Chander Kishore Saran and had maintained him more than even her husband did, and she had brought him up as if he was her own son.
10. In these circumstances, I find myself in agreement with the learned Additional District Judge that the documents mentioned above prove the natural affection and inclination of Ramrati Kuer towards tihe applicant, Chander Kishore Saran, and that Ramrati Kuer did not desire that her step-daughter or her step-daughter’s son (the objector) should succeed to any of the properties left by her husband. The will would, accordingly, be a natural will.
11. Mr. Mahabir Prasad, who appeared for the appellant, commenced his argument by citing the case of Tyrrell v. Painton, (1894) P 151 (A). His argument was that here is a case where a party had propounded a will in which he is himself appointed the sole legatee, and this raises a suspicion and unless the propounder removes that suspicion, he is not entitled to probate, the onus lying entirely upon him, which onus, according to his contention, has not been discharged.
12. The case of Tyrrell v. Painton (A) was decided upon its peculiar facts which were these. The plaintiff Tyrrell claimed probate of a will executed on 7-11-1892, by Mrs. Bye. The defendants, J. R, Painton and J. Painton, alleged that the said will had been revoked by a subsequent will of 9-11-1892, and they laid a counter claim to obtain a probate of this latter will.
The plaintiff then alleged that the execution of the latter will was obtained by the fraud of the defendants and of one Thomas Painton, and that the deceased, when she executed this will did not know and approve of the contents thereof. Now, the testatrix had been a widow for some years and had no issue, and, in 1880 and 1884, she had made wills in favour of the defendants J. Painton, These wills were prepared by a solicitor. Subsequently, the testatrix became dissatisfied with the conduct of J. Painton, and, in 1891 and 1892, she wrote several letters to her solicitor making complaints about his conduct, and, on 17-10-1892, she wrote to her solicitor asking him to come and see her for making a fresh will.
Then, on the 7th November, the solicitor went to her house and, under her instructions, prepared a fresh will by which she devised and bequeathed the bulk of her property to the plaintiff, who was her cousin, and she appointed him the sole executor. This was the will which was propounded by the plaintiff. On the 9th November, Thomas Painton, a son of J. Painton, brought to the testatrix another will, which was in his own handwriting and by which nearly the whole of her property was bequeathed to his father, J. Painton, absolutely appointing as sole executor J.R. Painton, another son of J. Painton,
This will was signed by the testatrix on the same date, and it purported to have been attested by Thomas Painton and a young man named Peter Rowland who was a friend of his. The testatrix died on the 23rd November. Thus, the will of the 9th November was written by a son of J. Painton, and the entire property was bequeathed to J. Pain-ton, while another son of his was appointed the sole executor. One of the attesting Witnesses was the same Thomas Painton who had written the will. It was upon such a will (that is to say, the will of the 9th November) that Lindley, L.J. said:
“Now, in my opinion, this will of the 9th was executed under such suspicious circumstances that lie (the President who had originally heard the application and whose decision was set aside on appeal) ought to have said, ‘Do the defendants affirmatively establish to my satisfaction that the testatrix knew what she was doing when she executed this will?”,
and, relying upon earlier decisions of the English Courts, the Lord Justice stated two rules which were deduced therefrom. The first was that
“the onus probandi lies in every case upon the party propounding a will, and he must satisfy the conscience of the Court that the instrument so propounded is the last will of a free and capable testator”.
This is the ordinary rule of onus lying upon the plaintiff. The second rule is that
“if a party writes or prepares a will, upon which he takes a benefit, that is a circumstance that ought generally to excite the suspicion of the Court, and calls upon it to be vigilant and jealous in examining the evidence in support of the instrument, in favour of which it ought not to pronounce unless the suspicion is removed, and it is judicially satisfied that the paper propounded does express the true will of the deceased.”
It is upon this second rule that Mr. Mahabir Prasad places reliance. In the same case, Devery, L. J. said:
“Whenever a will is prepared under circumstances which raise a well-grounded suspicion that it does not express the mind of the testator, the Court ought not to pronounce in favour of it unless that suspicion is removed”;
and his Lordship said that the circumstances presented before him were most suspicious. Thus,
whether there is, any inherent suspicion or not will depend upon the facts of each case. In Tyrrell’s case (A), as I have stated, the first will, of the 7th November had been prepared by a solicitor of the testatrix and under her instructions. The second will of the 9th November had been written by the son of the legatee who had taken prominent part in the execution of the will.
In the present case before me, there is nothing to show that the legatee, Chander Kishore Saran, had taken any prominent part in the execution of the will in question. If there be any inherent suspicion attaching to the will then the rule laid down in Tyrrell’s case (A) can be applied. In the present case I find no room for any such inherent suspicion.
13. Mr. Mahabir Prasad also placed before us two decisions of the Privy Council. The first is the case of Sarat Kumari Bibi v. Rai Sakhi Chand, 1929 PC 45 (AIR V 16 ) (B). In that case their Lordships affirmed the rule laid down in Tyrrell’s case (A) as in their Lordships’ opinion, the propo-under had taken an active part in the preparation of the will, and it seems to have been conceded that there was some ground for suspicion, for their Lordships said: “Indeed, it was not seriously argued by the learned Counsel for the executors that there was no ground for suspicion”. One important question in that case was regarding the inclusion of one paragraph in the will which was, wholly in favour of one Jamaluddin, and, with regard to this particular paragraph, which was clause 12, their Lordships observed:
“In view of the above-mentioned facts, in their Lordships’ opinion, there is ground for suspicion, that the testator was not aware of the provision in clause 12 of the will by which Jamaluddin was appointed manager of the estate for life at the salary of Rs. 250 per month, with the accompanying provision for the payment of charges and expenses and the possible increase of salary”; and it was further pointed out that their Lordships were not satisfied that the testator had approved of the appointment of Jamaluddin as manager of the estate for life, and that “the terms of such appointment were in accordance with his wishes or that he was aware of the provision in the will relating thereto”.
No such suspicious circumstance has been placed before us in the present appeal.
The whole argument has been that Chander Kishore Saran, the propounder of the will in question, had just propounded a false will, a will which had not been executed by the testatrix and possibly drawn up on a blank sheet of paper which had contained her thumb impression, and this was in conspiracy with the witnesses who attested it. This, in my opinion, is a case based upon the simple rule that the propounder has to prove the genuineness of the will and the second rule enunciated in Tyrrell’s case (A) that, where there is some inherent suspicion attached to the will, that suspicion must first be removed before judicially determining that the paper propounded expresses the true will of the deceased does not arise.
14. In the second case, which is reported as Vellaswamy v. Sivaraman 1930 PC 24 (AIR V 17) (C) their Lordships found that the propounder of the will had taken a leading part in giving instructions for the will and in procuring its execution and even registration and then, their Lordships said:
“Circumstances exist in this case that would excite the suspicion of any probate Court and require it to examine the evidence in support of the will with great vigilance and scrutiny and the respondent (the propounder) is not entitled to probate unless the evidence removes such suspicion and clearly proves that the testator approved of the will. In their Lordships’ opinion, the respondent has wholly failed to do so”.
15. It is true that the will in question in the present case was not registered; but, as was observed in the case of Kristo Gopal Nath v. Baidya Nath 1939 Cal 87 (AIR V 26) (D), the mere fact that a will is not registered does not make it improbable, much less impossible, that the will was executed.
16. Mr. B.C. De, appearing for the respondent, argued that the will executed by Ramrati Kuer is, in the particular circumstances of this case, a natural will, and there can be no intrinsic suspicion in this transaction. Having regard to the extracts from the various documents which I have quoted in the earlier part of the judgment, I think it was only natural for Ramrati Kuer to execute a
will in favour of Chancier Kishore Saran, especially having regard to the admission by the objector’s mother, Kamla Kuer, herself in her deed of re-linquishinent, exhibit 4, dated 25-3-1931.
17. Mr. B.B. De referred to the case of ‘Jagrani Kuer v. Durga Prasad’, 36 All 93(E). That was a case where a Hindu had left by a will all his property, moveable and immoveable, after the death of his widow to his sister’s son, one of the appellants, to the entire exclusion of the respondent, a remote relation of his. It was found that the testator had been for years on inimical terms with the respondent but had regarded the appellant with affection and had treated him as his son.
Their Lordships of the Judicial Committee held that the will was in every respect a natural one and in accordance with the feelings and tenor of life, and the presumptions of law were in favour of its being maintained. Applying those observations to the present will before us, I would say
that it is apparent that Ramrati Kuer’s feelings towards Chandar Kishore Saran were most affectionate, and she had treated him as her son; whereas, by obtaining a deed of gift from her husband,
she had deprived her step-daughter .from inheriting the property which she would have inherited in the absence of the gift.
18. To adopt the language of Jenkins, C. J. in the cass of ‘Jarat Kumari Dassi v. Bissessur Dutt’ 39 Cal 245 (F), the argument of Mr. Mahabir Prasad is this : There are a number of circumstances which ought to create suspicion : the occasion for suspicion has not been removed : therefore, the will has not been proved; and for that the case of ‘Tyrrell v. Painton’, (A) was cited. Jenkins C.J. observed as follows :
“The suspicion to which allusion is made must, I think, be one inherent in the transaction itself, and not the doubt that may arise from a conflict
of testimony which becomes apparent on an investigation of the transaction.”
His Lordship also said that, while examining English decisions, it must not be forgotten that the law as laid down in clear and imperative terms by Acts of the Indian Legislature must be followed, and it is by the provisions of those Acts that we must be guided. The provisions of the Succession Act and the Evidence Act have to be looked to for the purposes of deciding a case such as we have before us.
Section 3 of the Evidence Act provides that a fact is said to be proved when, after considering the matters before it, the Court either believes it to exist, or considers its existence go probable that a prudent man ought under the circumstances of the particular case, to act upon the supposition that it exists, and the disproof of a fact is similarly treated. The argument of Mr. Mahabir Prasad
seems to require a higher standard of proof than the law prescribes. In the same case, Woodroff, J.
observed as follows :
“Upon however the decisions cited I would observe that the rule in ‘1894 P. 151 (A)’, applies in my opinion to cases where the circumstances of suspicion arise from the nature of the case as put forward by the propounder. In such cases, the propounder must remove the suspicion which his own case creates. Where, however, the alleged suspicion against a will arises irom facts which form part of the impugnant’s case then the Court must see whether the facts which are said to give rise to the suspicion are proved or whether the plaintiff’s case is proved. The rule therefore does not apply where the question is simply which set of witnesses should be believed.”
19. The case of ‘Prasannamayi Debya v. Baikuntha Nath’, 1922 Cal 260 (AIR v 9) (G), followed the above case reported in ’39 Cal 245 (F)’, as also the case reported in ’38 All 93 (E)’, and also the case of ‘Surendra Nath v. Jahnavi Charan’, 1929 Cal 484 (AIr V 16) (H), wherein it was stated that in India there was only one test or proof with regard to all civil cases, and then it was said :
“I respectfully agree with the opinion of the learned Judges in that case, and I would say that in all cases whether it is a will or a case with regard to any other document, the court must be satisfied upon the evidence in order to make a decree in iavour of the party relying on the document. There is no absolute test for weighing evidence, specially as regards oral evidence which is given by the contending parties in a court of justice. The judges should try their best to ascertain the truth and that can only be done in the manner provided in the Evidence Act, and the proof necessary to establish a will in this country is not an absolute or conclusive one, but such proof as would satisfy a prudent man.”
20. In the present case, I find no material for coming to the conclusion that the propounder of the will had taken any active part in its execution. I have stated that Ramrati Kuer used to come to her village home in Gopalpur from Ayodh-ya twice in the year, and, in the usual course, she had come for the last time in September, 1940. On her way back to Ayodhya, she came to Patna, and there executed the will. There is no evidence to indicate that Chandar Kishore Saran, the propounder had taken any initiative in getting her to come to Patna.
The objector’s case in his written statement was that Ramrati Kuer had been living at Ayodhya since four or five years before her death — that is to say, since about 1935 or 1933 — and never came to Patna during this period, not even in the month of September, 1940, and further that, on account of her ailments and infirmity of old age, Ramrati Kuer had been unable, for about a year before her death, to leave Ayodhya — see paras 9 and 10 of his written statement. These statements are clearly incorrect.
There is a deed of sale, exhibit 2, which had been executed by Ramrati Kuer and three others. The execution had been made in Dinapur on 5-5-1939. She was, therefore, at Dinapur (her village, Gopalpur, lies within the sub-division of Dinapur) in May, 1939. This is admitted by Jagat Kishore Saran, witness 1 for the objector, in his evidence, for this witness said that Ramrati Kuer was at Gopalpur in May or June, 1939.
Another witness for the objector examined as the second witness made a similar statement that Ramrati Kuer used to come home “still a year before her death”. She had died in 1940. The objector’s “case, therefore, that Ramrati Kuer had
never come to Patna since 1935 or 1936 is entirely
false.
21. How Ramrati Kuer came to Patna from Gopalpur has been described by Harkhu Singh, witness 3 for the applicant. He was the patwari of Ramrati Kuer since 1936. He said that a day before Ramrati Kuer came to Patna to execute the will, he was sent by her to Patna, and was asked by her to get one Jadunandan Sahay, a scribe of Dinapur, to write the will. It was argued that there were scribes available at Patna, and there was no necessity to get one from Dinapur.
But the scribe, Jadunandan Sahay, appears to have done work for the lady even before scribing the will, and he was apparently, known to her as also to her patwari, Harkhu Singh, as, for example, it was Jadunandaii Sahay who had scribed the deed of sale, exhibit 2, referred to above, in 1939. When Ramrati Kuer came to Patna, according to the evidence of Harkhu Singh, she told Jadunandan Sahay to write such a paper by which she would be in possession of her properties so long as she lived, and, after her death, Chandar Kishore Saran would get the properties.
The scribe then asked him to call a pleader, and he called one Budra Dutt Babu who was a distant relation of the lady. Rudra Dutt was not examined at the trial, as he was then dead. Ramrati Kuer said the same thing to the pleader, and the pleader explained to the scribe what sort of a document he was to write. Then the draft was made by the scribe. The draft was then read over and explained to the lady, and then the pleader left saying that he was to go home next morning. The draft was fair copied the next day. The fair copy was also read over and explained by the scribe before Ramrati Kuer executed it.
It was pointed out that Harkhu Singh, in his cross-examination, would appear to give a different version when he said that the pleader went on dictating the will, and the scribe wrote it down, and the applicant also, who examined himself as witness 4, said in his cross-examination that, when the draft was being dictated by the pleader, Ramrati Kuer was not disturbing the pleader with questions, meaning thereby that the draft was wholly dictated by the pleader.
The argument was that, when Harkhu Singh said that the pleader had first explained to the scribe what sort of a document he was to write, he was wrong, as the later statements would show that the pleader had dictated the entire draft to the scribe. I do not think that these statements are such as to throw suspicion upon the genuineness of the will.
22. The witnesses who attested the will are Harihar Prasad, (witness 1 for the applicant), Harkhu Singh (witness 3), Ram Chandra Prasad (witness 5) Ram Kirit Pandey (witness 6), Mukhlal Ram (witness 7), Shayama Prasad, who has since died, and two others, Brij Kishore Saran and Saudagar Rai, whose signatures had been challenged as having been forged, and they were not examined by the applicant; for not examining them, the applicant gave the reason that they refused to depose for him.
23. I take up the argument regarding the last two witnesses whose signatures were in dispute in the Court below. Their admitted signatures had been sent for comparison to a hand-writing expert who was examined as witness 1 for the objector and this witness gave the opinion that the signatures of Brij Kishore Saran and Saudagar Rai appearing on the will did not tally with their admitted specimen signatures.
With regard to the signature of Brij Kishore Saran, the expert had found that the general characteristics of the specimen signature of Brij Kishore Saran were in agreement with the general characteristics of his supposed signature on the will, and it was only on examination of minute details that he could come to the opinion that the two signatures did not tally. Brij Kishore is a member of the same family as the applicant and the objector. Two members of the family are supporting the case of the objector: they are Jagat Kishore Saran, whose evidence on behalf of the objector was recorded on commission, and Lakhan Kishore Saran, witness 2 for the objector.
Brij Kishore Saran, also a member of the same family, was not examined for either party and his signature on the will was questioned. On a comparison of the supposed signature of Brij Kishore Saran on the will with his admitted signature, I do not think that it can be easily said that they do not tally. Saudagar Rai is a barahil, and the learned Additional District Judge, in my opinion, is right when he says that he does not appear to have developed a particular style of writing his name. He seems to be signing his name in different styles.
The signatures of the other persons on the will are not said to have been forged. If that be so, there appeal’s no good reason why signatures of two witnesses should have been forged. These two witnesses do not appear to be of such importance or position that their signatures on the will would have made any difference. Neither Brij Kishore Saran nor Saudagar Rai went into the witness-box to deny his signature. In these circumstances, it, is impossible to give a finding that their signatures on the will were forged.
24. Regarding the signatures of the witnesses who have been examined for the applicant to prove their attestation, as I have said their signatures are not denied: the main objection was, in the first place, that their attestation was not in accordance with the provisions of Section 63, Succession Act, and, in the second place, that they are men interested in the applicant and under his influence, for which reason they had joined in a conspiracy to forge the will.
25. Now, the relevant portion of Clause (c) of Section 63, Succession Act, and in respect of which argij-merit was advanced, provides that :
“the will shall 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 and “each of the witnesses shall sign the will in the presence of the testator”.
Thus, the applicant has to prove that the attestation was by at least two witnesses. The will in question was attested by more than two witnesses. That direction was complied with. The other two important elements are that (1) each witness must see the testator sign or affix his mark or see some other person sign in the presence and by the direction of the testator, and (2) each must sign in the presence of the testator.
The evidence of Harihar Prasad, witness 1 for the applicant, is that the ‘will was written in his presence; that it was read over and explained to Ramrati Kuer, who admitted it and gave her thumb impression in the presence of himself and some other witnesses; that Mukhlal signed for Ramrati Kuer at her request; and that hs himself attested the will at the request of Ramrati Kuer, and so did the other attesting witnesses, and Ramrati Kuer was present at the time of attestation.
Harkhu Singh, witness 3, said that Ramrati Kuer was illiterate, and she put her thumb mark, that Mukhlal signed for her at her request, that
ten or eleven persons were present at the time, that alt the attesting witnesses signed in his presence, and that he too attested the will. Ram Chandra Prasad, witness 5, said that Ramrati Kuer executed the will in his presence, and he attested it; that Ramrati Kuer was illiterate and she put her thumb mark on the will; that she asked her servant (her servant was Mukhlal) to write her name on the will; and that they all attested it after this execution.
The witness said that the will had been read over and explained to Ramrati Kuer in the presence of all of them, and that the lady was in proper senses at the time of execution. He further said that the lady had told them that they should attest her will. Ram Kirit Pandey, witness 6, said that Ramrati Kuer executed the will in his presence by putting her thumb mark, and that he attested it at her request. Mukhlal, witness 7, said that Ramrati Kuer had put her thumb mark on the will, that he signed upon the will at her request and on her behalf, and that the will was attested by the witnesses whom he named. He identified the will. Thus, in my opinion, it must be held that the will was properly executed, and I see no ground for holding that it had not been properly attested.
26. The next argument was that the evidence of these so-called attesting witnesses should be disbelieved for the reason that they were men of no position. Harihar Prasad is the sala of the applicant; Harkhu Singh was the patwari of Ramrati Kuer; Ram Chandra Prasad is a son-in-law of one Shyama Prasad who was a tenant in a portion of the house at Patna which Ramrati Kuer had gifted to the applicant and where the will was executed; Ram Kirit Pandey would appear to be a friend of the applicant for he said that he had love for him, and Mukhlal was, admittedly, Ramrati Kuer’s servant.
Whereas, according to the evidence of the applicant himself, round about the Patna house, where the will was executed, there lived more respectable persons, such as Kailash Babu and Sin-geshwar Babu, pleaders, Brahmanand, who is a nephew of the applicant and who is also a. pleader, Indradaman Singh, also a relation of his, and Deo-saran Babu, a mukhtar and also a relation. In this connection, reference may be made to certain observations of their Lordships of the Judicial Committee in the case of ‘Choteynarain Singh v. Mt. Ratan Koer’, 22 I. A. 12 (I), which may be quoted from” the last but one paragraph of their Lordships’ judgment :
“The theory of improbability remains to be considered; and the first observation which their Lordships have to make is that, in order to prevail against such evidence as has been adduced by the Respondent in this case, an improbability must be clear and cogent. It must approach very nearly to, if it does not altogether constitute, an impossibility. To give effect to the argument pressed upon this Board by the Appellants, which seems to have found favour in the Court of First Instance, would be equivalent to holding that the will of a Hindu gentleman, attested by his own servants and dependents, must be held to be invalid, unless it is shown that the testator, at the time assigned for its execution, was placed in such circumstances that he could not secure the attendance of persons of a higher rank. That is a proposition which verges too closely on the absurd to be seriously entertained.
There may be cases in which attestation by servants only is an important element to be taken into account in considering whether a will has been validly executed — cases, for example, in which there is reasonable ground for suspicion
that the will is not the voluntary act of the testator, but has been procured by the undue influence of members of his household. This case does not, in the opinion of their Lordships, belong to
that class.”
Accordingly, the fact that men or witnesses in better position were available but were not called to attest the will does not, in the circumstances of the present case, throw any suspicion upon the genuineness of the will,
27. The applicant was already at Patna when Ramrati Kuer had come to Patna from Gopalpur for the execution of the will. The applicant said that she had come to Patna with Mukhlal by a morning train, and he met her at midday when she told him that she had come to Patna to execute a document. It is not possible to come to a conclusion that either it was under the pressure of the applicant or under some undue influence proceeding from his side that Ramrati Kuer executed the will,
28. In the case of ‘Craig v. Lamoureux’, 1919 PC 132 (AIR V 6) (J), Viscount Haldane made the observation that it was not sufficient to establish that a person has power unduly to overbear the will of a testator, and that it must b’e shown that, in the particular case, the power was exercised, and that if was by means of the exercise of that power that the will was obtained. His Lordship, relying upon the case of ‘Boyse v. Rossborough’, (1853) 6 H. L.C. 2 (49) (K), observed as follows :
“In order to set aside the will of a person of sound mind, it is not sufficient to show that the circumstances attending its execution are consistent with the hypothesis of ite having been obtained by undue influence. It must be shown that they are inconsistent with a contrary hypothesis”. Undue influence, in order to render a will void, must be an influence which can justly be described by a person looking at the matter judicially to have caused the execution of a paper pretending to express a testator’s mind, but which really does not express his mind, but something else which he did not really mean.”
29. For the above reasons, I am of the opinion that the propounder of the will in question has succeeded in showing that the will is that of Ramrati Kuer, and that she was a person of testamentary capacity. The will is quite a natural one and testatrix knew well that she was giving her property after her death to the propounder. I have already come to the conclusion that the will must be found to have been validly executed and properly attested. In these circumstances, in my opinion, the learned Additional District Judge was right in concluding that the applicant was entitled to a grant of probate of the will.
30. I would, accordingly, dismiss the appeal with costs.
Sinha, J.
31. I agree.