1. The plaintiff, a minor, filed this suit through his next friend, the natural father, to get a declaration of his title under a Will which he propounded as being the last Will of one Dod-Basappa. This document is a holograph Will, purporting to have been written and executed by Dod-Basappa on the 16th September 1918. Dod-Basappa at that time was a comparatively young man, but he was suffering from chronic asthma; and although a person may be suffering from asthma for many years without any fatal result, it is common knowledge that attacks of asthma are very unpleasant. They may vary in severity, and one of these severe attacks might have induced a desire in Dod-Basappa to make provision for the future.
2. Briefly, the Will, after reciting that the testator had no heirs such as near Bhaubands etc., and no male or female issue, but only his wife Bhadri, directed his wife to adopt the plaintiff, and no one else. Then there is a further direction that if the plaintiff was not adopted by Bhadri, even then he was to be the full owner of the testator's property.
3. There is nothing whatever against the possibility of Dod-Basappa having executed such a document. It has been suggested, and this suggestion found favour with the learned Judge, that the very iniquitous nature of the Will was per se a cogent factor against the plaintiff's case. As the learned Judge says 'the plaintiff's case totters to the ground by the sheer weight of its own wickedness.' But we see nothing unnatural in a Hindu, sonless, and not in a good state of health, writing a document by which directions are given to the widow to adopt the testator's nephew. He would be aware that if he died, and the adoption was made, the adopted son would succeed to the property, but during his minority the property would be managed by the widow, and the widow in any event would be entitled to maintenance even if she refused to adopt, and the boy directed to be adopted became the owner of the property. That would not, and could not, defeat the widow's rights to maintenance.
4. The plaintiff's case is that the Will having been made on the 16th, the testator left on the 17th for Hubli. Before leaving, he handed the Will to his aunt Irawa for safe custody. She says that after making the Will Dod-Basappa handed it to her and asked her to keep it, saying that he was suffering from asthma and that he had made a document in plaintiff's favour. He not only told her and sister Rachaway the purport of the Will, but also read out the Will to them. He put the Will in a piece of cloth, and while delivering it to her, told her to return the document, if he recovered from his illness and returned home, if not, to hand it over to the plaintiff's father. The learned Judge says that 'this story sounds like a notion. It was ridiculously absurd and incredible, if not actually inconceivable, that a business man like Dod-Basappa would deposit for safe custody an important document like a Will with an old and illiterate woman albeit she was his aunt.'
5. We do not know whether Dod-Basappa was a business man. But in any event we do not see anything incredible or inconceivable in his handing over this document to Irawa for safe custody, while he went away to Hubli and to Kopbal.
6. Dod-Basappa was treated by a Doctor at Hubli, and then went on to Kopbal, where he fell ill in December and died on the 7th 10 or 15 days after his death the plaintiff's father went to Nidgundi and obtained the Will from Irawa. Certainly, the Will was produced by him by the 15th of January, by which time the question with regard to the correction of the Record of Rights had become important, and it is difficult to say that the delay of 20 days in producing the Will must necessarily throw doubt on its genuineness.
7. We see, therefore, nothing in the circumstances which would throw any suspicion on the story told by the plaintiff's witnesses. Therefore, the important question is whether the evidence of the attesting witnesses could be relied upon, remembering always that this purports to be a holograph Will entirely written by the testator, and it is certainly extremely improbable that a person wishing to put forward a forged Will, would run the risk of imitating the handwriting of the deceased, or get it imitated by some one else, when it would be so easy to attack a forged document spreading over more than a folio page. It would be much simpler to have had the Will written out by a professional writer, in which case it would only be necessary to imitate the signature of the deceased. Therefore there is nothing improbable in the whole story put forward by the plaintiff with regard to the genuineness of the Will, and on the other hand when a holograph Will is attacked, the probability against such a forgery being attempted is very strong.
8. Having read the evidence of the witnesses who attested the Will, we do not think the strictures made against them by the learned Judge can be supported. He says 'their evidence is not free from conspicuous defects. Much of it is obscure and unsatisfactory. The boldness of it is highly suspicious. The witnesses come on the scene, hear the Will read out by the testator, see him appending his signature, attest the Will and then disperse. This is their story in a condensed shape.'
9. There are many cases where that is exactly what happens with regard to the attestation of a Will. A witness is called to sign. He is either told, or not told, that the document which he is being asked to attest is a Will. It is not necessary even for the Will to be read out to him. He sees the testator sign the document, and then he attests and then he is told to go.
10. Then the Judge says. 'They (the attesting witnesses) are singularly reticent as to the other important particulars concerning the Will. They do not know whether any draft was prepared or by whom or whether any lawyer or other person was consulted. None of them, not even Huchappa, who claims to be his intimate friend and was his partner in a gin, was consulted by the deceased in respect of the Will. They did not know until the last moment why they were summoned by the so-called testator. They do not even pretend to have witnessed the writing of the Will by Dod-Basappa or to speak to the identification of his handwriting. They do not say why the Will was left unregistered, when it could have been easily registered or why the deceased made no provision at all for his wife, whom be left absolutely at the mercy of a stranger like the plaintiff's father. On all these important matters the witnesses throw no light at all, though they speak in a parrot-like fashion the minute particulars as to the order in which they attended and left the place and the order in which they attested the Will.' We should have been very much surprised if they had possessed all that information which the Judge expected of persons who attest a Will, with the result that if they could not give all these details to the Court, suspicion would be cast on their evidence.
11. No doubt, in the first place, the plaintiff has to prove the document on which he relies, but when he has once gone as far as putting before the Court a prima facie case which bears the signs of its being genuine, then it is for the defendant to produce reliable grounds for upsetting the plaintiff's case, and satisfy the Court that it is not only improbable but impossible.
12. With regard to the writing of the Will, the Judge has to admit that there is much resemblance in the signature on the Will with the deceased's signature in the school register Exhibit 146. He compares the writing of the Will with the hand-writing on certain postcards written by the deceased, and sets out many differences with regard to particular letters, comparing those letters in the Will with similar letters in the post-cards.
13. Now, as the learned Counsel for the appellant pointed out, it is not fair to compare the free handwriting spread over a folio page, with plenty of space, and a post-card in which the writer has to condense all he washes to say, in the exiguous space provided by the Post Office. The writing must necessarily be far more cramped, and naturally various letters in the post-card writing would differ from the writing which is not cramped. Therefore, although we do not profess to have any knowledge of Kanarese, we are not prepared to accept all these minute differences between the writing on the Will and the writing on the post-cards which are relied on by the learned Judge as helping him to arrive at the conclusion that the Will is a forgery.
14. The learned Judge himself was of opinion that the whole of the evidence produced by the defendants was suspicious and much of it concocted. That of course is not by itself conclusive, as the plaintiff had undoubtedly to prove the Will on which he relied. But it certainly shows the length to which the defendants were prepared to go in order to defeat the plaintiff's case. We cannot agree with the grounds which the learned Judge gives for not relying upon the evidence of the attesting witnesses, and the opinion he has formed as to the surrounding circumstances which went to support his appreciation of that evidence. It seems to us that having once made up his mind to dismiss the plaintiff's suit on the ground that the Will was a forgery, he was forced to take a distorted view of the plaintiff's evidence and the surrounding circumstances, in order to give reasons why he did not believe the plaintiff's case. Thus although we are adverse to upsetting the decision of the Court below on a question of fact, we think on a very careful consideration of the evidence in this case, and all the circumstances connected with it, that the Judge was not justified in dismissing the plaintiff's suit. Therefore, we must allow the appeal and hold that the Will has been proved. But as the learned Judge points out 'the first defendant cannot be ousted from the possession of the plaint property, unless she is first given an opportunity to adopt the plaintiff within a reasonable period of time, say six months or so. If she fails to adopt the plaintiff during this period, she should lose her right to the possession and enjoyment of the property.' We think that was a right conclusion to come to in the events that have been proved. We direct that the 1st defendant should have from the time the proceedings roach the lower Court six months, within which to adopt the plaintiff, and in default of adoption, the plaintiff will have liberty to apply for a decree for possession. No order as to costs.