Sir John Edge, C.J and Banerji, J.:— This is an appeal brought under s. 10 of the Letters Patent from the judgment or decree of our brother Knox. Our brother Knox had before him an appeal from an order made by the District Judge of Agra under Act No. V of 1881 granting probate of a will propounded before him.
A preliminary objection was taken that an appeal did not lie under s. 10 of the letters Patent in this case. It was contended that the order of the District Judge of Agra, granting probate was not a decree, but was simply an order, to which s. 591 of Act No. XIV of 1882 applied. That contention was based on the fact that s. 86 of Act No. V of 1881 gives an appeal to the High Court from a District Judge from an order made by him by virtue of the powers conferred on him by Act No. V of 1881, and to the fact that, in that Act, the orders of the District Judge are referred to as [477] “orders,” not as “decrees.” The contention was also supported by a reference to s. 83 of Act No. V of 1881. It appears to us that, although the term used to express the operative decision of the District Judge in cases arising under Chapter V of Act No. V of 1881 is “order,” still, when applying Act No. XIV of 1882, we must see whether the order of Chapter V of Act No. V 1881 would be an order or would be a decree, as those terms are defined in s. 2 of Act No. XIV of 1882. Section 591, as was decided in Latters Patent Appeal No. 31 of 1894, in the case of Richard Wall v. J.E Howard on the 18th instant (1), must be read with s. 588, and should be construed as if the words “under this Code” were inserted between the words “by any court” and the words “in the exercise of.” That being so, if the order from which the appeal was brought to this court in this case was not an order as defined by Act No. XIV of 1882, but was a decree, Chapter XLIII of Act No. XIV of 1882 would not apply to it, or to any subsequent appeal arising out of it. An order, as defined in s. 2 of Act No. XIV of 1882 means—“the formal expression of any decision of a Civil Court which is not a decree, as above defined.” For present purposes a decree, as defined in that section, means—“the formal expression of an adjudication upon any right claimed, or defence set up, in a Civil Court, when such adjudication, so far as regards the court expressing it, decides the suit or appeal.”
There can be no doubt that the order of the District Judge granting probate did decide, so far as his court was concerned, not only a right to have the probate granted, but the defence which was set up to the granting of the application for the probate; consequently it must be a decree within the definition of s. 2 of Act No. XIV of 1882, and, as such, Chapter XLIII of Act No. XIV of 1882 did not apply.
It was also suggested, although the point was not pressed, that in this Letters Patent Appeal we were bound by the findings of fact of our brother Knox, and that the appeal before us could not be dealt with in the same way in which a first appeal to this Court [478] might be dealt with. That contention would place an appeal under s. 10 of the Letters Patent in the same position as an appeal to which Chapter XLII of Act No. XIV of 1882 applies. Chapter XLII limit, the right of appeal from a decree passed in appeal by a court subordinate to the High Court, and only applies when the appeal is one from a decree passed in appeal by a court subordinate to the High Court. The appeal to this High Court having been a first appeal, and not an appeal to which Chapter XLII of Act No. XIV of 1882, applies, the parties to the appeal are entitled to question not only the law, but the findings of fact of the Judge of this court from whose judgment or decree this appeal has been brought under s. 10 of our Letters Patent. It would be otherwise if the appeal to this Court had been an appeal to which Chapter XLII of Act No. XIV of 1882 applied. Then the Bench sitting in the Letters Patent appeal would be bound by the same rule which bound the single Judge from whose decree or order the appeal was brought. We hold that an appeal lay from the judgment or order of our brother Knox, and that the parties were entitled to have this Bench consider not only the law, but the evidence in the case.
[The court then proceeded to consider the case on the merits, and arriving at the same estimate of the evidence as that taken in the judgment under appeal, dismissed the appeal. The remainder of the judgment, consisting solely of a discussion of the evidence, is unnecessary for the purposes of this present report.—Ed.]
[Now to consider this case on its merits. The will which was propounded was alleged by the petitioner to have been the last will and testament of one Ghansham Chand, who died on the 17th July, 1891. The evidence for the petitioner was that Ghansham Chand had resided at Jeypur for some two years before his death, that his wife Musammat Mangli resided at Muttra, which was Ghansham Chand's native place, and that on the 15th of July a telegram was received at Muttra requesting Musammat Mangli to send Rs. 50 to Ghansham Chand by one Ganesh, a servant. If the story of the petitioner be true, what followed was this:— Musammat Mangli and Ganesh, instead of going by train from Muttra to Jeypur started off in an ekka to Bhartpur, where they picked up a niece of Ghansham Chanel, and whence they proceeded by train to Jeypur, arriving, there in the early morning of the 16th of July. One observation is that they adopted a somewhat expensive method of sending Rs. 50 to Ghansham Chand. However, Musammat Mangli's story is that on their arrival at Jeypur, Ghansham Chand was in a perfect state of health, and that between the early dawn, when she and her niece arrived at Jeypur, and midday of the same clay, the will in question was drafted out by the servant Ganesh, and that Ghansham Chand being perfectly well and in good health, and about 52 years of ape, proceeded to execute, and did execute, the will in the presence of Musammat Mangli, Ganesh, Din Dyal and a resident of Jeypur. According to the story for the petitioner the will having been executed, Musammat Mangli, Ganesh, and the niece and Ghansham Chanel proceeded the same day to the Railway station in order to go to Muttra. They missed the train, but left by the train which left at five o'clock the following morning, but when they got to Achnera, Ghansham Chanel suddenly died, having drunk a jugful of cold water.
The telegram was not produced, and we must say that we entirely disbelieve the story as to that telegram. We think it exceedingly improbable that, if Ghansham Chand was in good health, his wife and niece should have rushed off to Jeypur in not haste on receipt of the telegram. He had been residing in Jeypur, away from his wife and niece, for two years certainly, and it is somewhat remarkable that they did make this hurried journey to Jeypur, which could be accounted for if the news they had received by telegram was that Ghansham Chand was in a dangerous condition, and that they should, on the same day, on which they arrived at Jeypur, proceed to remove Ghansham Chand to Muttra, there being nothing to suggest that he had any previous intention of leaving his duties at the temple at Jeypur. It is further remarkable that this man, who was in a robust state of health, should have died suddenly on the railway journey from Jeypur to Muttra. We have come to the conclusion that the whole story as to the health of Ghansham Chand on the 15th and 16th July was false, except that portion that as a matter of fact he died at Achnera. We believe that he was in a dangerous state of health, and that the object of the journey was to bring him back to his native place, Muttra, in order that he might the there.
Musammat Mangli was called, and she swore that the will was executed by her late husband, and that she put her mark to it as an attesting witness. Ganesh was called: he was the servant of the family. He also, if his evidence is true, proved the execution of the will, and that he witnessed it, on the 16th of July, 1891. Din Dyal was called, and gave similar evidence: He was a man who had been employed to prepare one Umrao Chanel for his College examinations. Now Umrao Chand was a nephew, sister's son, of Ghansham Chand, and the will which has been propounded, after a bequest of Rs. 100 a year in favour of charity, and Rs. 200 a year as maintenance for Musammat Mangli, during her lifetime, gave all the rest of Ghansham Ghand's property to Umrao Chanel. It is unfortunate, to say the least of it, that those three persons all, more or less, concerned for Umrao Chand, should be three out of the four witnesses of the will. The will, on the face of it, appears to have been witnessed by another man, described as a, resident of the Jeypur Raj: who the gentleman is, we do not know; he was not called as a witness.
The will, according to the petitioner, was executed on the 16th of July, and Ghansham Chand died on the 17th of July, 1891. On the 16th of September, 1891, Musammat Mangli executed a power of attorney in favour of the father of Umrao Chand and certain other persons. That power of attorney appointed those persons to act as her attorneys in Court matters and in the management of zemindari and other property. She had no property, except such as had belonged to her husband. The power of attorney makes no mention of any interest of Umrao Chand in the property, but deals with it as her own, and it is described as her own. It is exceedingly improbable, if the will which has been propounded, had been executed, that Musammat Mangli would have made a power of attorney in favour of, amongst other persons, Umrao's father. He was bound to know of the existence of the will, if it did exist, and it is hardly probable that, if the will had been made, Umrao Chand's father would have allowed Musammat Mangli to describe the whole property as her own, and to make a power of attorney, which, in fact, negatived any interest of Umrao Chand in the property.
There is on the record another document. It is an official copy of a petition presented to the Court of Jeypur on the 20th of August, 1891. It bears an endorsement, by the Munsarim of the court that it was admitted by Musammat Mangli. Musammat Mangli in her deposition said that she did not remember presenting a petition in the Court of Jeypur. That petition, which purports to have been presented on behalf of Musammat Mangli, was one for the granting of a certificate to collect the debts due to Ghansham Chand, and in it there is no reference to any will or to Umrao Chand having any interest in the property except the interest of an adopted son. It is not suggested now that Umrao Chand had been adopted by Ghansham Chand.
The will in question became for the first time public in January, 1892, and until January 1892 no person, except Musammat Mangli, interested in questioning the devolution of title effected by the will was aware that any such will, or any will at all, was said to have been executed by Ghansham Chand.
On the whole we agree with the view of the evidence taken by our brother Koox, and we hold that it is not proved that the will which was propounded was the will of Ghansham Chand.
The District Judge, from whose order this appeal was brought to this Court had not in this case dealt, in his judgment, in any but the most perfunctory manner, with the evidence in the case. He did, however, devote his energies to a criticism of the order made by a Judge of this Court, in an appeal, on the previous application for probate of this will. It is most irregular and improper for a District Judge to question the ruling of any Judge of the High Court to which he is subordinate; he is bound as a subordinate Court to take the law without question from the Court to which he is subordinate, and it so happens that his criticism in this case was incorrect. If the District Judge had devoted the energy be gave to criticising the ruling of this Court to a consideration and analysis of the evidence before him, he probably would have arrived at a different conclusion on the facts, as be is a Judge of no mean ability.
We dismiss this appeal with costs.]