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Nawab Haji Mohammad Ismail Khan and ors. Vs. Musammat Hamidah Khatoon Minor Through Haji Mohammad Saleh Khan and ors. - Court Judgment

LegalCrystal Citation
Decided On
Reported in64Ind.Cas.910
AppellantNawab Haji Mohammad Ismail Khan and ors.
RespondentMusammat Hamidah Khatoon Minor Through Haji Mohammad Saleh Khan and ors.
u.p. court of wards act (17 of 1912) - n.w.p. and oudh court of wards act (iii of 1899)--n. w. p. land revenue act (xix of 1873)--'disqualified proprietor', person declared to be, on his own application--will, competency of such proprietor to make. - - that application was acceded to, and yakub khan thereupon became a person who, under section 194 of act xix of 1873, had been declared by the local government on his own application to be diequali5ed from managing his estate see section 194 (clause g). now, although yakub khan bad made that application he was undoubtedly, from time to time, extremely dissatisfied with the restraint which was thus imposed on him and made several ineffectual attempts to secure the restoration to him of full managerial powers. in that act section 8 related.....1. in this case the contest is concerned with an alleged will of one haji yakub khan and with his suggested legal and mental disabilities. he was a man born in 1852, or thereabouts, and had married one wife, haji begam. they had, as issue, a son and a daughter, both the son and daughter died, one about 1897 and the other about 1807, and there is now left surviving a granddaughter, aged about 14 years.2. on the 1st of june 1917 haji takub khan is said to have made a will, giving to his grand-daughter the one-third share of his property which he, as a muhammadan, had prima facie the right to bequeath. he died on the 2nd of june 1918, that is, just one day more than a year after he is said to have executed the will referred to above.3. the points which arise in this appeal are:(1) whether,.....

1. In this case the contest is concerned with an alleged Will of one Haji Yakub Khan and with his suggested legal and mental disabilities. He was a man born in 1852, or thereabouts, and had married one wife, Haji Begam. They had, as issue, a son and a daughter, Both the son and daughter died, one about 1897 and the other about 1807, and there is now left surviving a granddaughter, aged about 14 years.

2. On the 1st of June 1917 Haji Takub Khan is said to have made a Will, giving to his grand-daughter the one-third share of his property which he, as a Muhammadan, had prima facie the right to bequeath. He died on the 2nd of June 1918, that is, just one day more than a year after he is said to have executed the Will referred to above.

3. The points which arise in this appeal are:

(1) Whether, in the circumstances of Haji Yakub Khan's position, he was competent to make a Will, (2) whether on the 1st of June 1917 he executed the document which is put forward and relied upon by the plaintiffs as his Will, (3) whether he was of sound disposing mind and (4) lastly whether the Will can be impeached on the ground of undue influence.

4. The first point is a pure question of law and depends upon this circumstance; that in the year 1897 Yakub Khan voluntarily applied that his property might be managed by the Court of Wards. That application was acceded to, and Yakub Khan thereupon became a person who, under Section 194 of Act XIX of 1873, had been declared by the Local Government on his own application to be diequali5ed from managing his estate see Section 194 (Clause g). Now, although Yakub Khan bad made that application he was undoubtedly, from time to time, extremely dissatisfied with the restraint which was thus imposed on him and made several ineffectual attempts to secure the restoration to him of full managerial powers.

5. At the outset the legal effect of his application was that he became a disqualified proprietor,' and it is said that he remained a 'disqualified proprietor' down to the day of his death in 1918. The point is important, because in 1917 (the date of the alleged Will) disqualified proprietors were unable, without the permission of the Court of Wards, to make a Will, It was, as we have said, under the provisions of Clause (g), Section 194, of Act XIX of 1873, that his property came under the control of the Court of Wards. The Section embraces two classes of persons, those who have their property taken out of their control in invites, and those who, of their own free Will, apply for the protection pf the Court of Wards.

6. Under the 1873 Act, no distinction was made between these classes of persons, all were disqualified proprietors. The Sixth Chapter of that Act, which alone relates to the Court of Wards, was repealed by Act III of 1899 of the Local Council. In that Act Section 8 related to the class of persons who are considered to require protection whether they wish it or not, and Section 9 deals with the persons who, like Haji Yakub Khan, request the Court of Wards to manage their property. The reason for this appears in Section 35. The first class of persons are therein for the first time declared incompetent without permission, inter alia, to make a Will, whilst those persons who come under Section 9 are not deprived of the ordinary right of testamentary disposition. We think that the provisions of Section 2, Sub-section 2, of the 1899 Act was designed to achieve, amongst other things, the result of placing in Section 9, as opposed to Section 8, those who had originally applied under the Act of 1873 for their estates to be managed, and thus to leave unimpaired whatever testamentary power they possessed. Therefore, by Sub-section 2 of Section 2 the application of Haji Yakub Khan was from 1899 deemed to have been made under that Act and to have the consequences flowing from that Act.

7. The Act of 1899 was repealed by Act No. IV of 1912; a clause corresponding to Section 2, Sub-section 2, is to be found in it and similar provisions drawing sharp distinctions between disqualified proprietors and those persons who of their own request had made over the management of their estate to the Court of Wards. The same restriction on the power of making a Will is continued as regards disqualified proprietors. Deciding as we do that Haji Yakub Khan ceased to be a disqualified proprietor by virtue of Act III of 1899, it follows that he had a full right to make a Will, We might add that in 1910 the Board of Revenue took the same view (R. 163), a view shared later by the Collector in 1916 (R. 235). Accordingly, the point of law urged by the appellant fails.

8. Apart from Dr. Sen's objection with which we will deal at the close of the judgment, the three substantial questions which remain are, is the Will a genuine document; had the testator a sound disposing mind; and lastly, a point argued very briefly, can the Will be impeached on the ground of undue influence.

9. Now we have already touched on the circumstances of the testator, how he was an old man having no one of his blood alive except this little grand daughter, and an examination of the petitions which he made to the Court of Wards over a long period of years have this common idea flowing through each of them, a desire to benefit the grand-daughter. Those documents are to be found in respondent's book.

10. R. 159 is a petition bearing date the 26th of April 1910. It was a petition in the Court of the Subordinate Judge of Aligarh, and it set out in paragraph No. 5 just what we believe were the feelings which he possessed towards his grand-daughter: the petitioner is, as he has already stated, an old man and has only a daughter's daughter all in all whom he brings up like his son. The other person whom he holds dear is his wife. It is always troubling the petitioner that if he died without making arrangement of his property, his wife on account of there being no heir, and his daughter's daughter, whom he is bringing up with so much love and are and who has a claim upon the petitioner, would some to mush grief and trouble and would, it is feared, lose their rights on account of their being pardanashin ladies, and it would be no wonder if they are deprived of their maintenance also, on account of litigation.' His general view never changed from that and on the 15th of April 1918 again he is saying: on account of the death of his son and the daughter of the applicant, this heartfelt desire is to make such arrangement during his lifetime as his wife and grand-daughter, who have claims upon him, may get their rights, because after the death of the applicant the grand-daughter, on account of being deprived from inheritance, cannot inherit anything.' On the 2nd of January 1917 Mr. Oakden, the Collector of Aligarh, was forwarding an application submitted by Haji Yakub Khan and reciting that the object of the petitioner in asking for a release of his property was that he might be able to give it away to his wife and daughter's daughter. Mr. Oakden did not advise that the estate should be released but, and this is most important, he took the view that Haji Takub Khan had power to make a Will, and we find in his evidence how from that date the story unfolds itself quite naturally and simply until we come to the moment when the testator is said to have executed a Will. Mr. Oakden's evidence in this case is of great importance and in considering it, it should be borne in mind that though he opposed the release of the property, he was of opinion that a Will would be the reasonable and proper course. He says that, after the making of this application, he advised Haji Yakub Khan that whilst he could not give his whole property to his grand-daughter, he could at all events leave her by Will that portion which the Muhammadan Law permitted, and when he was asked to fix a date for this interview, he put it at about April or May preceding the alleged making of the Will on the 1st of June. Now in considering whether this Will was genuine, the three outstanding facts up to this moment are, (1) the unaltered desire and the constant desire of Haji Yakub Khan to make provision for his grand-daughter; (2) the fact that it was brought to his knowledge by a person whom he could properly trust that he could do so by a Will; and (3) the very terms of the alleged Will, which was a Will in consonance with the feelings of love which he had expressed for this young girl.

11. Now that brings us to the 1st June 1917, and the case for the plaintiff is that on that date. Haji Yakub Khan, who for some time had been an invalid suffering from a variety of ailments, of which one at least was some description of palsy, called to his assistance a scribe and requested him to make a fair copy of a document in testamentary form. Now we had better deal first with the way in which the document is said to have come into existence, and then examine its terms and then consider the evidence of its execution and of its attestation by the witnesses.

12. The scribe, Muqtada Khan, says that he was in the habit of visiting Haji Yakub Khan. He was the Manager of the Aligarh Institute and there was between him and Haji Yakub Khan some degree of friendly intercourse arising at the outset from the fact that the late son of Haji Yakub Khan had been a schoolmate of Muqtada Khan's, Apparently on the 1st of June 1917, according to the evidence of this witness, one sheet of paper was handed by Yakub Khan to him and he was asked to Act as scribe and he made a fair copy of that sheet of paper. He tells the Court that he thought that this was only the preliminary draft of a document which would ultimately by re written in a more formal manner, possibly, he thought, on stamp paper or something of that kind. But, at all events, according to his evidence the witness did not consider that what he was doing was putting on paper in final shape the Will of Haji Yakub Khan. He says that when he had copied out the page which had been handed to him, he put down his signature as a scribe, and there in fast does appear his signature. Thereupon, to his astonishment, Haji Yakub Khan handed him a second paper which was clearly a continuation of the document, and he (i.e., the scribe) continued on the same sheet of paper and wrote down all that had been handed to him on that second occasion. He then signed the document again: so that in the alleged Will presented before us there appears about half way down the body of the document, 'written by Muhammad Muqtada Khan Shervani on the 1st of June 1917.' Then after specification of field and house properties, which were, as he said, (according) to particulars contained on the second sheet, we again find the signature of Muhammad Muqtada Khan Shervani and the date 1st of June 1917.' Therefore, according to his evidence when he had done that which Haji Yakub Khan had requested him to do, he had copied out the whole of the document which appears as R. 229. There remained only to be included in it the signature of Haji Yakub Khan and the signature of the necessary attesting witnesses. He says he did not see the testator sign the document, which of course tallies with his evidence that he thought all that he was doing was making a fair copy of a document which would be ultimately recopied and be the original of the Will. He says that he preserved secrecy about this matter, and that is not surprising, because he knew the position of all the parties. He had been called in as a friend to copy out this document, when to his knowledge there was a man in the employ of Haji Yakub Khan, to whom in the ordinary course of business the copying out of documents would fall. Therefore, he very wisely kept silent about the matter, a silence which, it is to be noted, Haji Yakub Khan seems to have preserved at all events as regards everybody except his wife, to whose evidence we will refer at its proper place in the story.

13. Later in the day, according to the plaintiffs case, two doctors same to the house--some time about 5 o' clock in the evening of the 1st of June. At this time Haji Yakub Khan is said to have been seated in a verandah, and a point is made in the general attack on the authenticity of this document, that it would be unlikely that a mm who had already been given some cooling medicines, either to counteract the heat of the day or counteract the heat set up by other medicines, would be sitting at 5 o' clock in the verandah. It is a small point. It may be that it was not 5 o' clock but later. It may be that the verandah was so situated that it-was as cool as any other place in the house. But the witnesses do say that when they saw him he was in the verandah, and it was in this verandah that Dr. Butt and the Chief Physician to the State of Bhopal saw him. Now it being the case for the appellants that this document is a forgery from beginning to end, we must, of course, look, first, as we have done, at the probabilities of the case--whether it is the sort of Will which Haji Yakub Khan would have made, and next, we must scrutinize the document with care, to see if on the face of it there is anything which fairly gives rise to suspicion, and then we must scrutinize the position, the character of the people who pledged themselves that they did in fact witness Haji Yakub Khan's signature.

14. The Will in itself follows out exactly what was the main wish of Haji Yakub Khan for certainly the last seven years of his life, It is a Will that Mr. Iqbal Ahmad, very fairly said, runs in sympathy with all one's feelings in the matter, and it is a Will which is in consonance with the advice which Mr. Oakden gave him.

15. Mr. Oakden being a witness, his evidence is of most importance in this case. Therefore, at the moment when the text of the Will and the very document itself is presented to us for our inspection, it comes before us with what we may call a good character. It is in an unusual form and the plaintiffs are right in laying great stress on that. It is unusual in form, because we find two signatures of the alleged testator and we find two signatures of the scribe and two signatures of the attesting witnesses. But the question is whether that has not been explained quite reasonably by the scribe, who had spoken of the testator holding in his hand two separate sheets of paper and giving him the first sheet without telling him that there was a second sheet to be put into his hands after he had fair copied the first. We accept that as a reasonable explanation for the unusual circumstance of the duplication of signatures.

16. We now turn to the evidence of the attesting witnesses, and with regard to both of them it is to be observed that the Judge in the Court below accepted their evidence and treated them throughout as witnesses of the truth. The first attesting witness who was examined was Dr. Ata Ullah Dutt. He is a Bachelor of Medicine and a Bachelor of Surgery of the Punjab University and was at the time when he gave his evidence the Medical Officer of the M.A.C. College, Aligarh. He is, therefore, a gentleman of position and, quite clearly from his evidence, a gentleman of intelligence. He deposes that he had been attending, as was the fact, on Haji Yakub Khan in 1916 and 1917. But on the 1st of June 1917 it would seen as if the Bhopal Physician was treating Haji Yakub Khan, It may be that Dr. Butt is right in saying that he was sailed in also on that day, but the point is made against him that if that were so, one would have expected to find a fee charged and sent to the Court of Wards for payment for his services on that day. We are not impressed by that contention, and for this reason; even if the Doctor had been sent for to come as a Doctor to give some advice about the blistering treatment which was apparently in progress on that day, he may very well have also been asked to witness the execution of the document and he may have subsequently considered that visit to have been so much in the light of a friendly visit that it would be a little discourteous to make a charge for his attendance on that day. The alternative, of course, is that Dr. Butt and the Bhopal Physician are parties to this forgery--parties to the conspircey--and are people who are quite unfitted to hold the positions they do, and a criminal prosecution ought to fellow. But we believe these two witnesses. We believe Dr. Butt did go there on the 1st of June, that he saw the testator sign his name in two places and that he himself signed his name in the places where they are to be found on the document which has been submitted to us, and we believe that the Bhopal Physician did the same.

17. Now two points have been made, that if the testator did in fact execute this Will on the 1st of June 1917, it was a remarkable thing that he did not send it to the District Registrar for deposit, and, again, it is said that it is a remarkable thing that the fact of the execution of the document was kept so silent. But inasmuch as the testator knew quite well that if the fact of his having made a Will got known amongst the hostile members of his family, by that we mean those people whose share of the inheritance would; be diminished if there was a valid Will in favour of the grand daughter, they might have made his life unpleasent for him, and that comes out so clearly when the scribe is giving evidence, because apparently without being told by the testator that he was to say nothing about it he does in fact say nothing about it, because he thought that ultimately there would be trouble. Both these points (the failure to send it to the District Registrar and the fact that Haji Yakub Khan did not make the fact known) fit in perfectly well with his desire that what he had been doing should be kept as private as possible, and he may very well have preferred not to send it to the District Registrar, knowing the mysterious way in which these things get known. He was well aware that he had in the attesting witnesses men of responsibility to vouch for the execution of the Will, and so was content to leave the ultimate decision of this matter, if ever there had to be a decision, to the evidence of those witnesses as to the genuineness of its execution,

18. Now the Chief Physician to the Bhopal State gives evidence, saying how the Will was presented to him for the purpose of attestation, that the testator signed it, and then he signed it, and that Dr. Butt signed it after him. There is nothing in his cross-examination that tends to discredit his evidence on that or any other point.

19. Now we commence to trace the history of this document, as far as we can, subsequent to the 1st of June 1917. According to the evidence of the widow Haji Begam, the Will was handed over to her, that is to say, that the husband gave her the paper not enclosed in any envelope but just folded. He laid to her, 'this is a Will and you should keep it carefully,' and she looked at it am said, 'is this all that has been written? and be must have said, 'yes, that is all, and then he added this, which is very significant and we believe it to be true if the estate is released from the Court of Wards in my lifetime, I will give it to the girl.' There we see in the execution of the Will the alternative suggested by Mr. Oakden carried into effect by the testator. There still remained dominant in his mine the desire to get the estate released, in which event he would have given it all to the girl. The widow says that he read out the Will to her and made her carefully mark his signature; that again is most natural, and indeed convincing, and able lady as this witness has shown herself to be during her examination, it is impossible to believe that she could have invented a story which in it every detail has the true ring about it. She has told us that she could read the Korar bat that she could not write--and that she could recognize her husband's signature. And there is the husband pointing out to her his signature and pointing out to her that it occurred at two places, and pointing out to her also the signature of Dr. Butt, the Hakim and the scribe. She says that three or four months before the death she had mentioned the fact that her husband had made a Will to this very same Habib-ur-Rahman Khan, who was her cousin and general attorney. She says that she kept that Will after its execution until after the death of the testator, which occurred on June the 2nd 1918. She sent it a day or two later through Habib-ur-Rahman Khan to the Collector. That Will reached the office of the Collector within two or three days of the death and that very circumstance creates a difficulty in the way of the defendants, if their case is that the Will was a forged Will brought into existence after the death of the testator. Dates and distances are against them and forgery is a theory which cannot be accepted.

20. Now the evidence on the part of the defendants consisted of, first, Haji Mohammad Yusuf Shan. He is a man of position and he speaks of the physical health of Haji Yakub Khan. On the point we are at present, whether the Will was executed on the 1st of Jane 1917, he gives very precise evidence to the contrary. It is to the observed that he gives no reason whatever for remembering on the 26th of February 1919 the events which took place on the 1st of June 1917, that is to say, he was unable to make it clear that the 1st of June 1917 stood out from any other day in the year 1917 by reason of some circumstance peculiar to him, that is to say, June 1st 1917 might have been an outstanding date in his recollection because he might have had a son born to him on the day before, or some other event might have happened which enabled him to fix that particular day with certainty. But he does not give the Court 'any support for his statement that he 'went to the house of Haji Yakub Khan on the 1st of June 1917 in the afternoon at about 4 o' clock and remained there till sunset, as I usually did.' It may be that he honestly believes that he was there on the 1st of June 1917, because it was usual for him, as he himself says, to visit Haji Yakub Khan at that time of the day. But we cannot, in the face of the very definite evidence of Dr. Butt and the Hakim, believe that this gentleman is accurate when he says that he was there on that day and in the presence of Haji Yakub Khan and from four till sunset and yet did not see Dr. Butt. It may very well have been a day or two before or a day or two after, and there is nothing which makes it at all certain that he is right about the date. There is this significant circumstance, that he is almost too accurate about what happened on the 1st of June in relation to Haji Yakub Khan's illness, because he says 'on the 1st of June 1917 a blister was caused on his leg in consultation with Hakim Abdul Qadir Khan,' and then he gives the names of about eight or nine persons who were present. We cannot shut our eyes to the circumstance that this evidence about the blistering had been given at length in the depositions of Dr. Butt and the Chief Physician Abdul Qadir Khan, the first named on the 17th of January 1919 and the other at a date shortly anterior to that on which this witness was giving evidence.

21. Similarly, Hakim Shabbir Ahmad Khan, another witness for the appellants, known with precision all that in fact happened on the 1st of June 1917 as regards the medical attendance of Haji Yaqub Khan, and says that he went on the 1st of June at 2-30 in the afternoon and stayed until the evening prayers.

22. Abdullah Shah deposes that he was present at the blistering and that it was done about half passive in the evening, We, therefore, have to make the choice between the witnesses on the one side who speak about the copying out, the execution the attestation, and the subsequent dealing with the Will and the three witnesses for the defendants who say that they were also present on the 1st of June and as regards one or other of them that Dr. Butt was not present. That none of them was present at the execution of the Will we san readily believe, that all may have been in the house of the deceased on the 1st of June at one time or other during some portion of the day again might be accepted, but we have no doubt that at some time on the afternoon of that 1st of June the scribe did copy out the document just as he has told the Court and that Dr. Butt and the Hakim duly witnessed its execution by the testator. Once the testator had got the fair copy made out, the request to witness its execution, the reading of the Will by the people invited to witness it, and their actual attestation would be a matter of a few minutes only and sold easily have been done at a time when the testator had secured himself for a few moments against interruption by any one. In these circumstances we hold that this was a Will to which the testator affixed his signature in the preserve of the marginal witnesses.

23. That, however, does not conclude the matter, because the appellants have two other points; that the testator was not a man of sound disposing mind and that the testator was so under the influence of Saleh Khan, who was the father of the grand-daughter, that the Will ought to be upset in the ground of undue influence.

24. Now the evidence as to his mental condition on the 1st of June 1917 is contained in the depositions of Dr. Dutt, the Hakim, and Dr. Robinson and Mr. Oakden too. Dr. Robinson's evidence is also confirmed by a certificate which he gave Haji Yakub Khan a few months before the Will was executed. A summary of the evidence of these gentlemen, all well qualified to form a sound opinion, is conclusive that the testator was a simple man, gifted with perhaps less than the average business intelligence, but a man who knew and felt the strength of family ties, and knew what was the right and proper thing to do, and each and all of those witnesses have given as their opinion that although in failing health, on the 1st of June 1917 his deceases were not of the kind that imposed any mental disability upon him at all, and that he was as capable on the 1st of June 1917 of making a sound judgment upon a matter of business as he had ever been in his life, and that though he might not, in a complex business matter, have been certain of coming to a wise decision, he was quite competent to decide what was and should be the fitting disposition of his property. Therefore, we hold that there was no ground for the allegation that on the let of June 1&17 the testator was not of sound disposing mind.

25. We now come to the other point, in which it is said that he was a man of weak intellect, threatened, overawed, or persuaded by Saleh Khan to make this Will. It is quite true that the Court of Wards, at a time when Haji Yakub Khan was trying to get his property 'released, thought that Saleh Khan was behind that and that the application was made in order that Saleh Khan might get his hand upon this property and dissipate it. To-day we are not considering any circumstances of transfer in lifetime, but the making of a Will which is so completely in accordance with one's sympathies and right instincts that if undue influence has in fact been exercised, it has been exercised in the moat benign way and directed to a most laudable end. In eases of undue influence an argument can almost invariably be used against the Will that by reason of the influence the testator was induced to do something injurious or unfair or opposed to common practice with regard to his property which, had he not been so influenced; would not have been done. That is to say, those opposing the Will point out the natural devolution of the property and show how far by this undue influence the property has been diverted from the ordinary channel which affection and custom would ordinarily have prescribed. But hard the Will was made in favour of the very person whom it was right to benefit, made in favour of a young girl now about 14 who was the object of deep affection of the testator, and who during his lifetime was untiring in seeking for methods to secure her from want after his death. It has been pointed out, too, that if Saleh Khan was the evil genius that persuaded the testator to make this Will, the property will pass away from him on the marriage of his daughter. We may say at once that whatever may have been Saleh Khan's wishes as regards getting the estate freed from the control of the Court of Wards, there is not the slightest evidence to support the theory that he exercised undue or any influence in persuading the testator to make the Will. The testator stood in need of no advise, because once he had got from Mr. Oakden that in his opinion a Will could be made, he knew exactly who was the person in whose favour he wanted to make it.

26. The result is that both on the law and facts of the case this appeal fails and must be dismissed with costs and fees on the higher scale.

27. We have now to turn to certain cross-objections raised in the matter and which have been argued by Dr. Sen. Part of the property comprised in the Will was a house known as 'Pili Kothi'. The Will in dealing with the 'Pili Kothi' runs as follows: I now bequeath in favour of my daughter's daughter, Musammat Hamida Khatoon, daughter of Haji Mohammad Saleh Khan, a one-third share in my Zamindari and house property, etc., a specification whereof is separately given at the foot in this way, namely, she shall have under this Will a right to a one third share in every portion of the field property; while out of the house property, a specification whereof has been given separately, she shall have the 'Pili Kothi' together with the shops, houses and the cultivatory holding appertaining to the Kothi, and the waste land appertaining thereto, whish Kothi is equal to one-third of my house property....'.

28. A specification of the house property and a detailed specification of the other property follow at the foot of the document. The testator says that the 'Pili Kothi' 'is equal to one-third of my house property,' He may have thought that that was a fact. but it would appear that if he did he considerably overestimated the value of his other house properly, because a Commissioner was appointed to enquire into the value of the house properties left by the testator and he came to the conclusion that the value of the 'Pili Kothi' was Rs. 31,000 and the value of the other portions of the property about Rs. 17,000. Dr. Sen has sailed our attention to the fact that in 1896 apparently the value of this property was in the neighbourhood of Rs. 10,0u0, But a good deal may have happened since 1896 and we have before us the report of the Commissioner, which the Judge accepted as being correct, and the Judge has ordered, on the basis of the Commissioner's report being accurate, that the beneficiary under the Will shall take a one-third share in every portion of the house property, and it is evident that in the circumstances we must leave that matter in the way in which it has been decided by the learned Judge.

29. The second objection is that the Court below went wrong in not allowing necessary items of expenditure incurred by the plaintiff in her conduct of the suit, Now that relates to certain Bums of money which were incurred in an abortive attempt to take the evidence of certain witnesses on Commission. It would appear that the witnesses were not at the places where they were thought to be, and in all expanses to about Rs. 1,700 were said to have been incurred, including about Rs. 700 for Pleaders' fees. The learned Subordinate Judge has disallowed all the items. As regards the fees he does so on a double ground; first of all, no certificate of the fees said to have been paid to the Pleader was filed before the day appointed for the hearing; and on the other ground, that in a big action of this character there must always be a certain amount of wastage incurred on both sides, whish cannot be the subject of taxation so that the opponent may be saddled with it. We think the second objection ought to be disallowed.

30. Then there is a small matter of Rs. 123 which was incurred in providing stamps for certified copies of documents. This seems to have been unwisely incurred, because the original documents were available and those documents were ultimately brought on the record and, therefore, that was money thrown away and (he loss in that respect must remain where it has been incurred.

31. In view of our decision on the first, objection relating to the 'Pili Kothi', objection No. 4 goes. It is to be noticed that the other side has not taken any objection to the order of the Judge that in view of the value of the 'Pili Kothi' a decree should be made by which the plaintiff gets a 1/3rd share generally.

32. That being so, we dismiss the appeal and the objections and affirm in all respects the decree of the Court below with costs and fees on the higher scale.

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