The Judgment of the Court was delivered by

Costello, J.:— This matter concerns an application for probate of the will of a man named Hari Pada Mitra which is dated. June 26, 1927. It is said that will was deposited with the Registrar of Assurances on June 28, 1927 and deposited, so it is said, by Hari Pada Mitra in person and he was identified by a man named Rajendra Nath Basu. One of the attesting witnesses to the will was a man named Tulshi Charan Mitra and the other witness was Dr. K.B Mukherji, who was dead at the time when these proceedings were instituted. The position, therefore, was that the proving of the will was wholly dependent upon the testimony of Tulshi Charan Mitra. The executor of the will was a man named Malin Bihari Datta and he filed a petition in the ordinary course asking for probate of the will. Some time before that petition was filed, however, one Mahi Tosh Ghosh, who is a nephew of the testator Hari Pada Mitra, entered a caveat and on May 27, 1933, a notice was served upon him requiring him to file an affidavit in support of his caveat within eight days from the service of the notice. In response to that notice an affidavit was filed by Mahi Tosh Ghosh. That affidavit is dated June 5, 1933, and in the last paragraph of that affidavit he said:—

I submit that no probate should be granted of the alleged will because of the following amongst other grounds:—

(a) The said alleged will was not duly executed by the deceased.

(b) The deceased did not know and could not approve of the contents of the said will.

In a previous paragraph the caveator had stated:—

I say that the signature of the said Hari Pada Mitra deceased does not appear to be his genuine signature.

It is to be observed, therefore, that the case made by the caveator was to some extent a suggestion, if not a definite averment, that the will which was being put forward was not a genuine will and had been obtained by undue influence.

However, on June 6, 1933, the solicitor for the caveator wrote a letter to the executor and his attorney in which it was stated that—

Referring to the affidavit in support of the caveat entered by my client in the above please note that my client merely insists upon the will being proved in solemn form of law and only intends to cross-examine the witnesses produced in support of the will.

The object of that letter was obviously to bring the matter within the ambit of r. 29 of Chap. XXXV of the Rules of this Court, which provides:—

The party opposing a will may, with his affidavit, give notice to the party setting up the will that he merely insists upon the will being proved in solemn form of law, and only intends to cross-examine the witnesses produced in support of the will, and he shall thereupon be at liberty to do so, and shall not, in any event, be liable to pay the costs of the other side, unless the Court shall be of opinion that there was no reasonable ground for opposing the will.

In the case of Santasila Dasi v. Narendra Nath Pal* I pointed out that the rule contained the word “merely” and therefore the last paragraph of the affidavit of the caveator in that case was not sufficient to bring the matter within the terms of the rule and that a plea of undue influence or fraud was inconsistent with notice. That rather appears to be the position which exists in the present instance. That is, however, a matter which only bears upon the question of costs. Having regard to the view, which we take on the main point urged by Mr. Bose on behalf of the caveator, it is not necessary that we should say anything more with regard to that particular point.

Mr. Bose has taken exception to the judgment which was delivered by Ameer Ali, J. in, the suit (which judgment was dated November 13, 1934) on the ground that the learned Judge ought not to have decided the suit and pronounced in favour of the will upon the basis of certain evidence, which had been given on commission by the attesting witness Tulshi Charan Mitra. On that point the learned Judge said this:—

“The attesting witness was examined on commission. The order for commission was conditional in this respect that the caveator was to be entitled to an opportunity of examining the witness by his doctor and if in a fit condition that the witness should be examined in Court. There was such an application when this case came up for hearing before McNair, J. and he”—the learned Judge is referring to the attesting witness—“was examined by the doctors of the caveator. The case, however, was not taken up and before me upon Mr. Hazra for the propounder tendering the commission evidence the application was renewed. I rejected the application because having read through the evidence on commission it appeared to me that the cross-examination having been by experienced counsel and in every respect full no advantage would have been gained by a fresh examination in Court.”

The learned Judge then proceeded to come to the conclusion that the evidence, which had been given by Tulshi Charan Mitra on commission, was sufficient to establish the genuineness of the will so as to enable the learned Judge to direct that probate should issue. As regards the costs the learned Judge said:—

The executor will take his costs in the first instance out of the estate. The executor will be entitled to his costs as between attorney and client. The costs as against the defendant will be on the ordinary scale.

The point we have to determine is whether there is any substance in the objection taken by Mr. H.D Bose on behalf of the caveator. The position is this: The original order for taking the evidence on commission was made by the present Advocate-General when he was officiating as a Judge of this Court and it was dated March 20, 1934. It contained a very unusual and indeed remarkable condition, which I have already touched upon, namely, that the defendant (that is to say, the caveator) should be—

at liberty to have the witness examined by his own doctor before this suit comes to be heard and to apply that the said witness be examined in Court, the evidence taken on the commission be not read and used at the hearing of this suit, it being agreed by both sides that in that event they will agree to an early, hearing of the suit.

In pursuance of the permission contained in that order Tulshi Charan Mitra was examined on behalf of the caveator in or about the month of August, 1934. He had given his evidence as appears from the deposition on divers dates in the month of May, 1934. In August an application was made to McNair, J. as an outcome of a medical examination of Tulshi Charan Mitra which had been made on behalf of the caveator and certain medical certificates were placed before McNair, J.—two of them on behalf of the caveator and one on behalf of the plaintiff. Having considered those certificates and no doubt having carefully heard the arguments urged on both sides in the matter, McNair, J. came to the conclusion that there was no reason why Tulshi Charan Mitra should not come before the Court and give his testimony orally in the usual way and subject himself to cross-examination before the learned Judge who should try the suit. It so happened, however, that for one reason or another which is not quite material for purposes of the appeal, the suit did not come on for hearing prior to the Long Vacation in 1934. It ultimately came on for trial in the month of November, 1934, and eventuated in the judgment given by Ameer Ali, J., a portion of which I have already read. At the time of the actual trial, as far as we can see, the learned Judge did not fully consider the affidavits which had originally been put before the Court in the month of August and which were filed in Court on November 12, and, as far as we can see, the learned Judge did not direct his mind to the question of whether or not the deposition containing the evidence of Tulshi Charan Mitra was properly admissible under the provisions of O. XXVI, r. 8. That rule provides as follows:—

Evidence taken under a commission shall not be read as evidence in the suit without the consent of the party against whom the same is offered, unless—

(a) the person who gave the evidence is beyond the jurisdiction of the Court, or dead or unable from sickness or infirmity to attend to be personally examined, or exempted from personal appearance in Court, or is a civil or military officer of the Government who cannot in the opinion of the Court attend without detriment to the public service, or—

Rule 8 then proceeds thus:—

(b) the Court in its discretion dispenses with the proof of any of the circumstances mentioned in cl. (a), and authorizes the evidence of any person being read as evidence in the suit, notwithstanding proof that the cause for taking such evidence by commission has ceased at the time of reading the same.

The position, therefore, is this: The evidence of Tulshi Charan Mitra which was tendered on behalf of the plaintiff in the suit, unless it was shown that the witness was beyond the jurisdiction of the Court or was dead or unable from sickness or infirmity to attend to be personally examined, could only have been put in on behalf of the plaintiff provided the Court in its discretion dispensed with proof of any of those circumstances. The only circumstance in the present instance, which was at all material, was whether or not Tulshi Charan Mitra was unable from sickness or infirmity to attend in person to be examined, it not being seriously suggested that there was any other, reason, why he should not attend. Mr. Hazra half-heartedly and even less strenuously than that did at one moment attempt to put forward a suggestion that the first sentence of sub-cl. (a) of r. 8 might apply because the witness Tulshi Charan Mitra happened to live a few hundred yards outside the territorial jurisdiction of this Court in its Original Jurisdiction. But I am of opinion that the expression “beyond the jurisdiction of the Court” has reference to the question whether or not the witness is within the reach of the compelling or disciplinary powers of this Court in his capacity of a witness or potential witness, and the matter therefore, would fall within the purview of O. XVI, r. 19 which lays down that no witness is to be ordered to attend in person unless he is resident within a certain distance from the Court, which extends to as much as 200 miles, provided that for five-sixths of the distance there are adequate transport facilities for the witness in the way of railway or other communications.

It seems quite clear that this gentleman Tulshi Charan Mitra was not in his capacity as a possible witness beyond the jurisdiction of the Court. Therefore the only question was whether he was unable from sickness or infirmity to attend in person to be examined at the time the trial took place before Ameer Ali, J. No new evidence or, at any rate, no trustworthy fresh evidence to show that was so was placed before the learned Judge. The learned Judge might have formed some opinion on the point from the affidavits which had been used in the previous August, but obviously they were no satisfactory guide as to whether or not in the month of November this gentleman was still unable from sickness or infirmity to stand or sit in the witness-box at the trial.

However, it was clearly open to the learned Judge to have taken action under sub-cl. (b) of r. 8 and in his discretion to have dispensed with the proof that this witness was unable from sickness or infirmity to attend Court and thereupon to have admitted in evidence the deposition which had been taken on commission. That course was unfortunately not adopted by the learned Judge. It was possible that the learned Judge had not in his mind the provisions of r. 8 of O. XXVI and certainly he did not, as far as one can see, act upon the basis of any of the provisions of r. 8, because we find him saying, as I have already indicated, that he rejected the application because he thought that the evidence given on commission was in itself satisfactory and was sufficient for the purpose of the suit. That in our opinion was not a satisfactory way of dealing with the matter, because the position would appear to be this—it must first of all be determined by the Court by a reference to the provisions of r. 8 whether or not the evidence taken on commission should be read as evidence in the suit before that evidence could be looked at or used for any purpose whatsoever; whereas in the present instance the learned Judge looked into the evidence in order to enable himself to come to a conclusion as to whether or not he would order the witness to attend in person. In this connection I would refer to a passage in the judgment of Sir George Rankin, C.J in the case of Phanindra Krishna Dutt v. Pramatha Nath Malia, where the learned Chief Justice said:—

I take this occasion to point out that when this case comes on for trial, the mere fact that this commission has been ordered now will be no reason whatever for any one to look at it unless it is found that at the time of the hearing sickness or infirmity or other reason prevents the witness from giving his evidence in the ordinary way.

On the previous page Sir George Rankin had quoted from the judgment of Lord Atkinson given in the case of Satish Chandra Chatterji v. Satish Kantha Roy(2), where his Lordship said (commenting upon a case where it appeared that in December, 1916, a commission was appointed, evidence was given on commission in January, 1917, and the trial commenced in February, 1917):—

Evidence taken on commission should only be permitted to be used where the witness is proved to be too ill to give his evidence in Court or is absent for other sufficient reason.

The fact that in the present case Tulshi Charan Mitra had been allowed to give evidence on commission in May, 1934, was no reason whatever—I again use the words of the late Chief Justice—

for any one to look at it unless it is found that at the time of the hearing sickness or infirmity or other reason prevents the witness from giving his evidence in the ordinary way.

Now it was not found at the time of the hearing that sickness or infirmity prevented Tulshi Charan Mitra from coming to Court and the learned Judge did not, in form—at any rate—purport to exercise the discretion conferred upon him by sub-cl. (b) of r. 8 of O. XXVI. In those circumstances we can only with great regret come to the conclusion that the learned Judge was wrong in taking into consideration the evidence given on commission before having directed his mind to the matters set forth in r. 8 and given a decision based either on the provisions of sub-cl. (a) or based upon the exercise of his own discretion under sub-cl. (b). I think, therefore, the case must go back to the learned Judge with the direction that he do consider in the light of the provisions contained both in sub-cl. (a) and in sub-cl. (b) whether or not the evidence given by Tulshi Charan Mitra under commission should be used as evidence in the suit. If the learned Judge comes to the conclusion that it should not be admitted either under sub-cl. (a) or under sub-cl. (b) of r. 8, it will then be necessary for him to hear oral testimony from Tulshi Charan Mitra in the ordinary way.

As regards costs of these proceedings we think the appellant should have the costs of this appeal. So far as the costs of the Court below are concerned they will abide the result of the subsequent proceedings.

Derbyshire, C.J:— I agree.

The case will come at the top of the warning list before Ameer Ali, J.

Attorney for appellant: G.B Chatterji.

Attorney for respondent: S.N Dutt.

G.S

Appeal allowed: suit remanded.