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Case Number

First Appeal No. 372 of 1924, from a decree of D.C Hunter, District Judge of Allahabad, dated the 25th of April, 1924

Advocates

Pandit Shiam Krishna Dar (with him Dr. Kailas Nath Katju), for the appellant.
Babu Piari Lal Banerji, for the respondent.

Judges

Sir Grimwood Mears
Kt., C.J
Lindsay, J.

Acts

Section 3 of the Probate and Administration Act

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Smart Summary

Concise Analytical Summary of the Opinion — Probate Appeal concerning Ex. 4 (Ram Rup Ghose)

Factual and Procedural Background

This appeal concerns whether a document exhibited as Ex. 4 in the Court below — a draft purported to be a later Will of the deceased Ram Rup Ghose — ought to have been admitted to probate by the District Judge.

Relevant facts explicitly stated in the opinion:

Ram Rup Ghose, formerly a head master and a pensioner living in Allahabad, executed a registered Will on 2 February 1920 (referred to as the registered Will or Ex. A).
At the time of the 1920 Will, his immediate family included his wife, his son Ramendra Nath Ghose, his daughter-in-law Mirnalini Debi (widow of a deceased son) and her three children.
The 1920 registered Will (Ex. A) made detailed dispositions of income and corpus, appointed four executors, and included provisions for wife, son, daughter-in-law and grandchildren (including specified payments of Rs. 2,000 towards a granddaughter's marriage, etc.).
Ex. 4 is a later draft document, unsigned and unwitnessed, prepared under instructions said to be from Ram Rup and purporting to revoke the 1920 Will. It redistributed property differently and contained a clause (Clause 14) expressly cancelling the earlier registered Will.
Ram Rup died on 25 September 1923. Ex. 4 was never signed by him nor attested; it was in the possession of his vakil (lawyer) Newal Kishore from early September and no deposit was made before the testator's death.
The son, Ramendra Nath, opposed probate of Ex. 4 in the Court below; the District Judge declined to admit Ex. 4 to probate, finding himself unconvinced that Ex. 4 represented Ram Rup's last wishes.
This first appeal followed, attacking that decision and seeking probate of Ex. 4; the appellate Court ultimately allowed the appeal, set aside the District Judge's order and granted probate of Ex. 4, with costs to the applicant in both Courts (higher scale fees allowed in this Court).

Legal Issues Presented

Whether the document exhibited as Ex. 4 — though unsigned and unwitnessed — represented the last wishes of Ram Rup Ghose and therefore ought to be admitted to probate.
Whether, if Ex. 4 is so found to represent the testator's last wishes, it operates to revoke the earlier registered Will of 2 February 1920.
Whether, in the case of a Hindu testator, a draft Will or instructions (even if informal and unsigned) can be treated as a legally effective Will for the purpose of granting probate (in light of Section 3 of the Probate and Administration Act and cited authorities).

Arguments of the Parties

Applicant for Probate (represented by Mr. Dar) — arguments in favour of admitting Ex. 4

Ex. 4 was prepared at the express request of Ram Rup and contained his declared last wishes regarding disposal of his property.
Circumstantial evidence (including changes in family circumstances and the testator's conduct) pointed to a definite decision by Ram Rup to alter his earlier Will.
Ram Rup read and corrected the draft, understood it, and entrusted it to his vakil Newal Kishore for deposit; his failure to sign did not indicate uncertainty but rather reliance on the vakil to effect deposit.
Negligence on the part of the vakil in not depositing the Will could not be converted into a negative inference as to the testator’s intention.

Opponent — Ramendra Nath (son) — arguments against admitting Ex. 4

Although the draft Ex. 4 had been prepared under instructions given by Ram Rup, the earlier registered Will of 2 February 1920 had never been revoked and there was no intention to revoke it.
It was suggested the draft was prepared merely to pacify the daughter-in-law Mirnalini, who allegedly had acquired influence over Ram Rup; thus the draft did not reflect genuine last wishes.
No execution took place (no signature or attestation), and Ram Rup never had any real intention to make a new Will and to revoke the earlier one.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Auliya Bibi v. Ala Uddin [1906] 28 All. 715	Illustration that, in certain circumstances, a draft or instructions given by a testator can be treated as a Will even if not executed in formal fashion.	The Court cited this case as part of a line of authorities showing that an informal draft prepared on the testator's instructions can constitute a valid Will for probate if it represents the testator's legal declaration of intention.
Janki v. Kallu Mal [1909] 31 All. 236	Support for the proposition that draft instructions/draft Wills prepared on a testator's instruction may be treated as a Will for probate purposes.	Used together with the other cited authorities to establish that an unwitnessed, unsigned draft may be effective as a Will for a Hindu testator if it embodies his last wishes.
Sarabai Amibai v. Mahomed Cassum Haji Jan Mahomed [1919] 43 Bom. 641	Further authority for treating drafts/instructions as constituting a Will in appropriate circumstances.	Relied on as part of the judicial backdrop to conclude that Ex. 4 could be given effect as a Will if it in fact represented the deceased's last intentions.

Court's Reasoning and Analysis

The Court's analysis proceeds in several identifiable steps, set out here in the order reflected in the opinion:

Legal threshold: The Court began from the statutory definition under Section 3 of the Probate and Administration Act — a Will is the legal declaration of a testator's intention with respect to his property to be carried into effect after his death — and observed (as supported by cited authorities) that for a Hindu testator a declaration may be legal even if unsigned and unwitnessed. Thus, a draft made on the testator's instructions can, in principle, be treated as a Will for probate.
Consequence: If Ex. 4 truly represented Ram Rup's last wishes, it must be given effect and, because Ex. 4 contained an express revocation clause (Clause 14), the earlier registered Will of 2 February 1920 would be deemed revoked.
Assessment of the lower Court's view: The District Judge found the evidence conflicted and was not convinced that Ex. 4 represented the testator's final intention; he thought it possible Ram Rup had not definitively made up his mind to make a fresh disposition and to cancel the previous Will.
Re-examination of evidence and circumstances: The appellate Court reviewed relevant facts that pointed toward a real intention to change the Will: the death of the testator's wife (removing the need for earlier provisions), the son's earning capacity, the testator's evident desire to provide for grandchildren, admitted family quarrels which could influence the testator's dispositions, and the fact that Ex. 4 redistributed property in a way consistent with those concerns.
Conduct of the testator and the vakil: The Court emphasized testimony that Ram Rup was well-educated, read English, and had read, understood and corrected the draft. The draft (and two fair copies) were handed to his vakil, Newal Kishore, who failed to take steps to deposit the document with the District Registrar before the testator's death.
Inference regarding non-execution: The Court rejected the inference that lack of signature or attestation meant lack of intention. It considered it likely that Ram Rup trusted his vakil to effect the necessary deposit and that the vakil's negligence should not be treated as evidence that the testator had been uncertain or lacked intent to make a new Will.
Overall evaluation and standard of proof: Although the case contained conflicting evidence and was described as difficult, the appellate Court found that the cumulative circumstantial and direct evidence, together with the circumstances of handing over the draft to the vakil and the testator's clear engagement with the document, removed reasonable doubt about the genuineness of Ex. 4 as reflecting the testator's last wishes.
Outcome of analysis: The Court concluded that the District Judge erred in refusing probate and that Ex. 4 should have been admitted to probate as the last Will of Ram Rup Ghose.

Holding and Implications

Holding: Appeal allowed; probate of the document Ex. 4 is granted. The appellate Court set aside the District Judge's order and granted probate of Ex. 4. The applicant was awarded costs in both the Court below and in this Court (fees in this Court on the higher scale).

Implications (direct effect on the parties):

Ex. 4 is to be treated as the last Will of the deceased Ram Rup Ghose.
Because Ex. 4 contains an express clause revoking the earlier registered Will of 2 February 1920, that earlier Will is deemed to have been revoked.
The successful applicant recovers costs in both Courts, with the appellate Court allowing higher scale fees.

The opinion does not purport to lay down a new legal principle; it applies existing authorities and statutory definition (Section 3 of the Probate and Administration Act) to the facts and reaches a conclusion that the unsigned, unwitnessed draft Ex. 4 represents the testator's legally effective declaration of intention.

End of summary — all statements above are drawn directly from the provided opinion and do not add or infer facts beyond that text.

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Balmakund v. Ramendra Nath Ghose

1. The question to be decided in this first Appeal is whether the document which was exhibited as Ex. 4 in the Court below, and which was propounded as being the last Will of Ram Rup Ghose, ought to have been admitted to probate by the District Judge. Ram Rup Ghose was once a head master and had been living for a number of years in Allahabad after his retirement on pension. It is admitted on both sides that on the 2nd of February 1920, Ram Rup Ghose executed a Will, which was registered. At that time the members of Ram Rup Ghose's family, who were alive and in whom he was necessarily interested, where his wife, his son Ramendra Nath Ghose, his daughter-in-law Mirnalini Debi (the widow of a deceased son) and her three children (two sons and one daughter). By his registered Will, marked Ex. A, Ram Rup arranged for the distribution of his property after his death. He appointed four executors to his Will, and directed that one half of the annual income of his estate should be paid to his wife and his son Ramendra Nath until his wife's death. After his wife's death one half of the estate was to be made over to his son Ramendra Nath subject to a deduction of Rs. 2,000 Which was to go towards the marriage expenses of the testator's granddaughter Kanak Champa Debi.

2. The other half of the income was to be devoted to the maintenance of the testator's daughter-in-law Mirnalini Debi and her children. Provision was made for the education of the two grandsons and it was provided that when his grandsons attained full age half of the estate was to vest in them, subject to a charge for the maintenance of their mother Mirnalini Debi, and subject to a contribution of Rs. 2,000 towards the marriage expenses of the grand daughter. The will also provided that while the wife of the testator was alive, the family were to live with her. The property disposed of by the Will consisted of Government Promissory Notes, shares in certain companies, a one-third share in two houses in Mirzapur and certain moveable property. The document Ex. 4, which was brought into Court by Babu Balmakund, one of the executors, purported to revoke this earlier Will. Ex. 4 as it stands is the draft of a Will, It is not pretended that the testator, the deceased Ramp Rup Ghose, who died on the 25th of September 1923, ever signed this document, nor again does it bear the attestation of any witnesses. Nevertheless it was put forward as being the last Will of. Ram Rup Ghose, the case for the applicant being that this document, although informal in the manner just indicated, nevertheless had been prepared at the express request of Ram Rup, and with an express declaration by him that it contained his last wishes regarding the disposal of his property.

3. The document made a different distribution of the property to that which was provided in the registered Will of the 2nd of February 1920. The son Ramendra Nath was given a one-third share in a house in Mirzapur and was also given certain shares in the Tata Iron and Steel Works of the face value of about Rs. 3000. The income of the rest of the property, was to be devoted to the maintenance of the daughter-in-law and grand children of the testator and the remaining corpus of the property was to vest in the grandsons on their attaining majority, subject to the maintenance of their mother. The same provision was made in this Will as in the earlier Will, namely that Rs. 4000 was to be spent on the marriage of the testator's grand daughter. There was a gift over to the Kayestha Patshala in certain events. Provision was also made by which certain ornaments, which belonged to the testator's wife, were to be given to the grandsons, and lastly it was declared in Clause 14 of this document that the earlier registered Will of the 2nd of February 1920 had been cancelled.

4. The grant of Probate was opposed by the son of the testator Ramendra Nath, It was not denied that the draft, Ex. 4 as brought into Court had been prepared under instructions given by Ram Rup, but it was said that the Will of the 2nd February 1920 had never been revoked, and there never had been any intention to revoke it. It was suggested that this draft Ex. 4 had been prepared merely for the purpose of pacifying the daughter-in-law Mrinalini, who it was said, had acquired an ascendency over Ram Rup. It was said that the draft did not represent the last wishes of the testator and that the preparation of the draft Will could not amount to a revocation of the earlier Will. It was also pleaded that no execution of the Will had taken place, and that Ram Rup never had any real intention to make a new Will and to revoke the earlier one.

5. Under Section 3 of the Probate and Administration Act a Will is defined as being the legal declaration of the intention of the testator with respect to his property which he desires to be carried into effect after his death. It is not disputed that in the case of a Hindu, as Ram Rup Ghose was, the declaration may be legal although it is not signed by the testator, nor attested by witnesses, and it has been held in a number of cases that the draft instruction given by a testator to a lawyer, or a draft Will prepared on such instruction, can be treated as a Will so as to allow grant of Probate. We may refer in this connexion to three cases, Auliya Bibi v. Ala Uddin [1906] 28 All. 715, Janki v. Kallu Mal [1909] 31 All. 236, and Sarabai Amibai v. Mahomed Cassum Haji Jan Mahomed [1919] 43 Bom. 641.

6. Consequently if it is found that the draft Ex. 4 though not signed by the testator and unwitnessed, does represent the last wishes of Ram Rup Ghose regarding the disposal of his property, effect must be given to it as a Will, and as it contains a clause expressly revoking the registered Will of the 2nd of February 1920, the latter Will must in that case be deemed to have been duly revoked.

7. Before discussing the evidence in the case it should be premised that Ram Rup was a well educated man, who had been the head master of a Government School and knew English well. There can be no question of his ability to understand a document prepared in English. One of the witnesses describes Ram Rup as having been a graduate of the Calcutta University. (The judgment their dealt with the evidence and proceeded.) On this evidence the learned Judge seems to have come to the conclusion that it was not possible for him to say that the document Ex. 4 represented the last wishes of Ram Rup regarding the disposal of his property after his death. There was of course considerable conflict in the evidence and the result of this was to leave the Judge as he says convinced of nothing. He seems to have thought that before Ram Rup died he bad not definitely made up his mind to make a fresh disposition of his property and to cancel his previous Will.

8. It has been very strongly argued before us by Mr. Dar on behalf of the applicant for probate that the circumstantial evidence in the case points clearly to the conclusion that Ram Sarup had definitely decided to alter his Will and to revoke the earlier Will of 1920.

9. It is not to be denied that there were reasons why Ram Rup might very well wish to make a new Will. In the first place since he executed the earlier Will of 1920 Ram Rup's wife had died. It was no longer necessary therefore to make provision for her. Another fact was that his son Ramendra Nath was able to earn his own living. We have also every reason to suppose that Ram Rup was most anxious to provide as well as he could, for his grand-children. It was for them that provision was being made in the Will and not for the mother Mrinalini. There is also the fact that Ramendra Nath himself admits that there were quarrels between him and the sister-in-law, quarrels which might very well have led Ram Rup to suppose that after his death Ramendra Nath would not be well disposed towards his brother's widow.

10. A good deal has been said about the conduct of Ram Rup himself, and in particular as to the inference which might be drawn from the fact that Ram Rup bad never signed this draft document Ex. 4. There can be no doubt that he had read the draft, that he understood it and had made corrections in it, and so far as we are able to understand Ram Rup was quite in earnest about the preparation of this deed. It is difficult to suppose that he was taking all these pains if he did not seriously intend to make a new Will.

11. As regards the fact that Ram Rup did not sign the Will, it is to be remembered that early in September he had handed over the draft of the new Will to his vakil, Newal Kishore, and asked him to make arrangements for the deposit of the document with the District Registrar. There can, we think, be no doubt that Ram Rup fully trusted Newal Kishore in this matter and left it to him to do all that was necessary in order to get the Will deposited in Court. From early in September Newal Kishore was in possession of Ex. 4 and also two fair copies of the same, and it seems to us most likely that Ram Rup believed that all steps would be taken in order to carry out his wishes. Before, however, any deposit was made Ram Rup died. We do not think that it ought to be concluded from this conduct of Ram Rup that he was wavering or uncertain in his intentions. That conclusion might have been possible if it turned out that the draft document had been in his possession right up to the time of his death, but the explanation is that it was not in his possession and it was in the possession of the Vakil, Newal Kishore. It was most reprehensible on the part of Newal Kishore not to take immediate steps for the deposit of this document, and the excuse he has given namely that the Judge was busy in dealing with the Karari case was no excuse at all. Had an application been made to the District Judge for the deposit of this Will, he would have been bound to entertain it at once, whether ha was trying the Karari case or not. In short it is not possible to infer from the negligence of the vakil that Ram Rup, who was the author of this document, was in any way in an uncertain state of mind, and to hold that for this reason effect should not be given to his wishes as contained in this document Ex. 4.

12. For these reasons we have come to the conclusion that the Judge ought to have pronounced in favour of the document Ex. 4 and to have granted probate of it as being the last will of Ram Rup Ghose.

13. This case has, we admit, been a difficult one, and when it was first opened, it appeared to us that the appeal stood very little chance of success. We have however, to acknowledge the very able argument of Mr. Dar, who has removed all doubts, which we might have been disposed to entertain in this matter, and has convinced us that the document Ex. 4 is a genuine document and was intended by the deceased Ram Rup to take effect as his last will.

14. We, therefore, allow this appeal, set aside the order of the District Judge and grant the application for probate of the document Ex. 4. The applicant is entitled to the costs both in this Court and in the Court below. In this Court fees will allowed on the higher scale.

Balmakund v. Ramendra Nath Ghose

Concise Analytical Summary of the Opinion — Probate Appeal concerning Ex. 4 (Ram Rup Ghose)

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Applicant for Probate (represented by Mr. Dar) — arguments in favour of admitting Ex. 4

Opponent — Ramendra Nath (son) — arguments against admitting Ex. 4

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Balmakund v. Ramendra Nath Ghose

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