Fletcher, J.:— This is an appeal from a decision of the learned District Judge of the Assam Valley Districts, dated the 31st May 1915. The appeal is preferred by one Rammal Koch. This Rammal Koch propounded in the Court of the District Judge a document, dated the 8th Aswin 1314 B.S, which is stated to be the last Will of his uncle Sripal Koch. Probate of the Will was opposed by the Respondent who is stated to be the wife of an inferior grade of the deceased person. Nobody seems to know what the position of the Respondent was; but she was a person who had been married twice and, having been widowed, she entered into bonds of matrimony for the third time with Sripal. Of course, the widow's marriage may not be in accord with the views of a good number of people of this country; but it is not uncommon amongst other communities in India. There is no doubt that the Respondent was not a mistress or a kept woman of Sripal but was his wife. Nobody seems to know what the qualifications that is placed before the word “wife” in the evidence means. Whether it means that the marriage was not a regular one or otherwise we do not know. It must be taken that the Respondent was, in fact, the wife of the deceased. The alleged Will was made on the 25th September 1915 which corresponds with the vernacular date 8th Aswin 1314. On the same date, the document was registered. Sripal did not the before January 1915. Of course, that is a most material fact in the case that this document was executed and registered so long as the 25th September 1907. The learned Judge has laid no stress on a fact like this that if this document was a forgery as he seems to have come to a definite conclusion that it was, then the propounder must have made up his mind with the assistance of others to forge a Will of his uncle seven or eight years before his uncle died. Nothing in the evidence has been given to suggest why the Will was executed: It is not suggested that at or about the time the Will was executed the deceased was ill or was considered likely to die. Another matter on which the learned Judge has misdirected himself completely is as to the method of the proof of the Will. The learned Judge has got confused with regard to two separate and distinct matters. He has mixed up the question as to the formalities' required by the law under sec. 50 of the Indian Succession Act, namely, that there must be two attesting witnesses with the proof of the fact as to whether those formalities were properly observed and the learned Judge has held that because the Will was not proved before him by two attesting witnesses therefore the document could not be admitted to probate. I have already stated that the learned Judge has fallen into a manifest fallacy in treating the method on which the Court should be satisfied as to the observance of the formalities required by sec. 50 of the Indian Succession Act and the formalities themselves. Under sec. 68 of the Indian Evidence Act, it is quite clear that a Will can be proved by one of the attesting witnesses. The same view has obtained in England for many years. I quote from a most recent Text-book—Mortimer on Probate Practice, p. 302, where the learned author observes: “To prove the attestation of a Will in the Court of Probate, it is not necessary to examine both the attesting witnesses.” The learned Judge was clearly wrong when he rejected the Will on the ground that only one of the attesting witnesses had proved the Will. Then the question turns on whether, assuming that these two matters, the failure to consider the effect of registration—it not having been suggested in the course of the evidence that some person other than the deceased was taken before the Registrar and a misdirection on the question of law as to the proof of the Will do not vitiate the judgment—we should, hold on the evidence that the Will ought to be established. In a case like this, the real question turns on which of the witnesses the Court is going to believe. It is quite true that the learned Judge has placed considerable stress on the evidence of the two ex-mouzadars on the ground that they were respectable men who gave evidence for the Respondent in the appeal. He seems to have been unfavourably impressed, although on what grounds it is not clear, with the man who must have been one of the principal witnesses for the Appellant, namely, Kulanund Pattak and who certainly seems to be a man in a superior walk in life to any other person in the case. He is a landholder. He has got a brother who is a Sub-Deputy Collector and who has been a member of the Local Board. Whether he has ceased to be a member of the Local Board owing to adverse circumstances, we do not know. But, at one time, he was a man who was well-off to secure a seat on that important body. I am not sure that the reasons that the learned Judge has given for rejecting his evidence are altogether sound, and I think, both as regards his evidence and the other evidence, that the learned Judge went wrong at the outset by the way he approached the case. He approached it on the view that the Will must be proved by two attesting witnesses and he overlooked the question of registration. It is quite true that, on the other hand, it may be difficult to understand why the husband who was advanced in years as Sripal was with a wife considerably his junior and with whom he seems to have been in excellent terms, so much so that she kept this husband in her own house and maintained him quite contrary to the usual condition of things that husbands always maintain the wives should have disinherited the wife in the manner suggested. Of course, the answer may be that one cannot tell what were the reasons in the dead man's mind. These sorts of cases happen where there is no explanation put forward as to what was the motive which led the deceased man to disinherit the wife. That, of course, is a suggestion that must be taken into consideration along with the evidence when the Judge weighs the evidence; but it is not sufficient to show that the Will is not a genuine one. Cases can be shown both in the books and in the newspapers where persons who where in very affectionate terms with their wives have executed Wills either wholly or practically disinheriting them. What was in the minds of these persons, of course, it is quite impossible to establish. But there is no reason to refuse to admit the Will to probate simply because it is what the lawyers in the ancient time called inofficious. That doctrine does not apply in our system of law. I think the judgment of the learned Judge in this case cannot stand. There has not been a proper trial nor has the case been properly or sufficiently investigated into. If any question is going to be raised, for instance as to whether some other man was taken to the Registry and put forward as Sripal, that case ought to be made definitely and the identifier and other persons who are able to speak to the fact should be entitled to give evidence to show whether Sripal did, in fact, go to the Registry to register the Will or whether some person representing Sripal registered that false document. I think we ought to set aside the judgment of the learned District Judge and remand the case to the lower Court in order to have the case tried afresh. Both parties will be entitled to adduce any further evidence they may think fit to adduce on the issues that arise in the case. Costs will abide the result of the re-hearing before the learned Judge of the Court below. We assess the hearing fee at two gold mohurs.
I do not mean to imply that the learned Judge may not draw hostile inferences from the fact that the other attesting witnesses have been kept away from the witness-box. That is a matter of the credibility of the witnesses just as much as any other matter.
Chatterjea, J.:— I agree.
S.C.M
Appeal allowed.
Comments