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Sm. Ishar Kaur Vs. Daulat Ram and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtPunjab and Haryana High Court
Decided On
Case NumberLetters Patent Appeal No. 30 of 1948
Judge
Reported inAIR1952P& H147
ActsCode of Civil Procedure (CPC) , 1908 - Sections 107; Succession Act, 1925 - Sections 74
AppellantSm. Ishar Kaur
RespondentDaulat Ram and ors.
Appellant Advocate A.N. Grover, Adv.
Respondent Advocate Yashpal Gandhi and; K.S. Thapar, Advs.
DispositionAppeal allowed
Cases ReferredSarju Pershad v. Jwaleshwari Pratap
Excerpt:
- sections 100-a [as inserted by act 22 of 2002], 110 & 104 & letters patent, 1865, clause 10: [dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] letters patent appeal order of single judge of high court passed while deciding matters filed under order 43, rule1 of c.p.c., - held, after introduction of section 110a in the c.p.c., by 2002 amendment act, no letters patent appeal is maintainable against judgment/order/decree passed by a single judge of a high court. a right of appeal, even though a vested one, can be taken away by law. it is pertinent to note that section 100-a introduced by 2002 amendment of the code starts with a non obstante clause. the purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the.....harnam singh, j.1. dal chand had three sons, mathra das, daulat bam and chum lal, and one daughter shrimati khushal dcvi. shrimati roop kaur was the wife of lal chand. on the 8th of august 1922, lal chand separated mathra das from him by giving him a house at amritsar worth rupees 10,000/- and obtained a registered deed of release from him.2. on the 2nd of may 1929, lal chand made the will, exhibit r.a., whereunder he gave his entire property to daulat ram and chuni lal. in that will lal chand provided that after his death daulat bam and chuni lal would pay rupees thirty per mensem out of the rent of the property to shrimati roop kaur on account of maintenance. that will was presented for registration by lal chand in the office of the sub-registrar at lyall-pur and was duly registered.3......
Judgment:

Harnam Singh, J.

1. Dal Chand had three sons, Mathra Das, Daulat Bam and Chum Lal, and one daughter Shrimati Khushal Dcvi. Shrimati Roop Kaur was the wife of Lal Chand. On the 8th of August 1922, Lal Chand separated Mathra Das from him by giving him a house at Amritsar worth Rupees 10,000/- and obtained a registered deed of release from him.

2. on the 2nd of May 1929, Lal Chand made the will, Exhibit R.A., whereunder he gave his entire property to Daulat Ram and Chuni Lal. In that will Lal Chand provided that after his death Daulat Bam and Chuni Lal would pay rupees thirty per mensem out of the rent of the property to Shrimati Roop Kaur on account of maintenance. That will was presented for registration by Lal Chand in the Office of the Sub-Registrar at Lyall-pur and was duly registered.

3. On the 14th of November 19-10, Lal Chand is stated to have made the unregistered will, Exhibit P.A., whereunder he gave Shop No. 2500 situate in Jalianwaia Bagh, Amritsar, to Shrimati Ishar Kaur, wife of Mathra Das, for the maintenance and marriages of Rani, Radha, sardaro and Bholan, daughters of Mathra Das, and for the maintenance of Gopi Nath and Arjan Das, sons of Mathra Das. In the will, Exhibit P.A., Lal Chand gave his property other than the shop described above to Daulat Ram and Chuni Lal directing them to pay to ShrimatiIshar Kaur rupees five per mensem for the maintenance of the minor daughters of Mathra Das till they were married. No part of the property of Lal Chand is given under this will to Shrimati Roop Kaur or Shrimati Khushal Devi and there is nothing in the evidence to show that they had no independent means to maintain them. Indeed, neither in the Court of flrst instance nor in the appellate proceedings out of which this appeal has arisen was it suggested that in the circumstances of the case Lal Chand ought to have made any provision in the will for Shrimati Roop Kaur or Shrimati Khushal Devi.

4. Lal Chand died on the 15th of December 1940. On the 20th of January 1941, Shrimati Ishar Kaur presented an application for permission to institute a suit 'in forma pauperis' against Daulat Bam and Chuni Lal for the possession of shop No. 2500 described above. That application was rejected on the 22nd of July 1941.

5. In 1942 Kanhaya Lal, brother of Shrimati Ishar Kaur, instituted Civil Suit No. 138 of 1942 for the recovery of rupees one hundred from Shrimati Ishar Kaur. That suit was decreed on the 27th of February 1942. In execution of that decree Kanahaya Lal attached the shop in dispute on the 18th of May 1942. Daulat Ram and Chuni Lal objected to that attachment. In the execution proceedings Kanhya Lal propounded the will of the 14th of November 1940, while the objectors claimed on the basis of the registered will mentioned above. The objectors succeeded with the result that Kanhaya Lal decree-holder instituted Civil Suit No. 18 of 1943 under Rule 63 of Order XXI of the Code of Civil Procedure for a declaration that Shop No. 2500 described above was liable to attachment and sale in execution of the decree against Shrimati Ishar Kaur. The suit was dismissed by the Court of first instance on the 27th of May 1943. Kanhaya Lal appealed from 'the decree passed in that suit but the appeal failed on the 26th of July 1944.

6. Subsequent to the dismissal of the appeal of Kanhaya Lal an application for letters of administration was made by Gopi Nath son of Shrimati Ishar Kaur, but that application failed on the 14th of February 1945, on the ground that Gopi Nath had no interest of his own in the shop in dispute.

7. On the 8th of May 1946, Shrimati Ishar Kaur applied for letters of administration regarding the will of Lal Chand so far as it related to Shop No. 2500 situate In Jalianwala Bagh, Amritsar. Daulat Ram and Chuni Lal denied the genuineness of the will and pleaded 'res judlcata.'

8. In disposing of the plea of 'res judicata' the District Court found that the decision in the appeal arising from Civil Suit No. 18 of 1943 was not binding on the Probate Court, and in appeal against that order the High Court while not going so far as the District Court held that that decision was not 'res judicata', since Shrimati Ishar Kaur was only a 'pro forma' party in that appeal.

9. On the merits, the Court of first instance fixed the following issues:

1. Whether the will in dispute was the last will of Lala Lal Chand executed by him with a disposing mind?

2. Relief.

10. In support of the due execution of the will Shrimati Tshar Kaur examined Qazi Inayat All, P.W. 1, Nihal Chand P.W. 2. Ganga Ram p.W. 3. Piara Lal R.W. 4 and Daulat Ram R.W. 5 gave evidence on issue No. 1 in rebuttal. Shrimsti Ishar Kaur also deposed to the execution of the will, Exhibit P.A.

11. In deciding Probate Case No. 4 of 1945 the District Court found that the will Exhibit P.A., was the last will and testament of Lal Chand and granted Letters of administration to Shrimati Ishar Kaur for the entire estate on payment of the necessary Court-fee.

12. Prom the order passed by the District Court on the 24th of December 1946, Daulat Ram and Chuni Lal preferred an appeal in the High Court of Lahore. That appeal was transferred for disposal to this Court under Article 13 of the High Courts (Punjab) Order, 1947.

13. On the 27th of May 1948, Mr. Justice Falsliaw allowed the appeal and set aside the order of the District Court granting letters of administration to Shrimati Ishar Kaur. Parties were left to bear their own costs in the High Court. In allowing the appeal the learned Judge said:

'According to the will, the reason for Lal Chand's changing his mind and leaving one shop at Amritsar out of his property to Mt. Ishar Kaur was that she had several daughters for arranging whose marriages she needed assistance, and the property was being bequeathed to her for the benefit of her daughters. It is certainly not impossible that Lal Chand may have relented in his attitude towards Mithra Das sufficiently to have felt a desire to assist his grand-daughters, but even if he did so, it is hardly likely that he would have executed a will containing so many mistakes and without referring to his previous will or consulting any other members of his family except Mt. Ishar Kaur, and on the whole I am of the opinion that the execution of the will has not been satisfactorily established, and I accordingly accept the appeal and set aside the order of the learned District Judge granting letters of administration to the respondent but order the parties to bear their own costs in this Court.'

14. Mt. Ishar Kaur appeals under Clause 10 of the Letters Patent from the judgment passed in P.A.O. No. 25 Of 1947.

15. Mr. Amar Nath Grover urges that in deciding P.A.O. No 25 of 1947 the learned Judge has not followed the rule laid down by the Supreme Court with regard to the appreciation of oral evidence by the appellate Court and the rule laid down by the Privy Council governing the construction of wills. On the first point Counsel cites 'Sarju Pershad v. Jawaleshwari Pratap', AIR (38) 1951 S C 120, and on the second point Counsel cites 'Jagrani Kunwar v. Durga Prarad', 36 All 93.

16. Now, the District Judge who had the advantage of having the witnesses before him and of observing the manner in which they deposed in Court believed the evidence given by Qazi Inayat All, P.W. 1, Nihal Chand P.W. 2 and Ganga Ram, P.W 3. Clearly, unless there was some special feature about the evidence of these witnesses which had escaped the notice of the District Judge or there was a sufficient balance of improbability to displace his opinion as to where the credibility lay the learned Judge should not have interfered with the finding of the trial Judge as to the credibility of these witnesses.

17. In these proceedings Counsel for the respondents was not able to point out why the evidence given by Qazi Inayat All P.W. 1 should have been disbelieved. That Qazi Inayat AH was the scribe of the will, Exhibit P.A. and this he wrote the will on the 14th of November 1940 is not open to doubt. In examination-in-chief the witness referred to Entry No. 230 made by him in the register of deeds on the 14th of November 1940 with respect to the will and no question suggesting that that entry was not made by him in the regular course of his duties as a deed writer was put to him in cross-examination. A precis' of the will.

Exhibit P.A., is to be found in the register of deeds maintained by the witness. If so, there was no warrant for rejecting in appeal the evidence given by Qazi Inayat Ali. In his evidence the witness stated that he read over the will Exhibit P.A., to Lal Chand whom he knew befors and that Lal Chand signed the will at P.A./1 and P.A./2 in his presence. As noticed above, the learned Judge has not acted on the testimony of the scribe and the attesting witnesses of the will for he thought that there was an element of improbability, arising from proved circumstances which outweighed the finding arrived at by the District Judge. For the reasons appearing hereinafter in this judgment I am of the opinion that there was no such element of improbability.

18. Nihal Chand P.W. 2 and Ganga Ram p.w. 3 are the- attesting witnesses of the will, Exhibit P.A. Now, Nihal Chand appears to have been disbelieved by the Court in the judgment under appeal lor the Court thought that the witness falsely stated that he had not adopted the daughter of Mathra Das and wrongly suggested a correction in his deposition when the deposition was read out to him. From the judgment of the District Judge it appears that these facts did not escape the notice of that Court. On the second point a note appears in the autograph record in the hand of the District Judge. Clearly, if the witness was wrong in suggesting the correction, the District Judge would have mentioned that fact In the note. For aught we know the District Judge seems to have accepted the suggestion that the record of the deposition of the witness was not correct in the particular mentioned by the witness. On the other point that part of the statement of Mt. Ishar Kaur does not appear to have been noticed in the judgment under appeal wherein she stated that after her daughter remained with the wife of Nihal Chand for two months she was sent back to the witness. On a careful perusal of the evidence given by Nihal Chand I have not been able to discover any special feature about the evidence given by him which had escaped the notice of the District Judge justifying interference by the appellate Court with the appreciation of the trial Court as to the credibility of Nihal Chand.

19. And this brings me to the scrutiny of evidence given by Ganga Bam P.W. 3. In the Judgment under appeal it is said 'inter alia' that the witness was specially sent for in order to attest the will. In my opinion there is no material on the record to justify the conclusion arrived at in the Judgment under appeal. In examination-in-chief Ganga Ram stated:

'That day I had been sitting at my shop in 'Mochianwala' bazar when a man came to me from L. Lal Chand's house and asked me to go there. When I arrived there were one woman in the room and 4-5 men. The writer had not yet begun writing. Then the writer proceeded to write out Exhibit P.A. and when he had done that he read it over to him. Then L. Lal Chand signed it. L. Lal Chand at the time appeared quite all right. He appeared quite capable of understanding the document.'

20. Clearly, the evidence given by Ganga Ram does not show that he was specially sent for in order to attest the will. To me it appears that someone was asked to go to the 'bazar' to bring a person known to Lal Chand In order to attest the will and that person brought Ganga Ram. That being so, I am clear that there was no special feature about the evidence given by the scribe and the attesting witnesses justifying the rejection of that evidence in appeal. In 'SARJU PERSHAD V. JAWALESHWABI PRATAP', AIR (38) 1951 SC120, the rule of practice governing the point under, consideration is stated in the following words: 'The question for our consideration is undoubtedly one of fact, the decision of which depends upon the appreciation of the oral evidence adduced in the case. In such cases, the appellate Court has got to bear in mind that it has not the advantage which the trial Judge had in having the witnesses before him and of observing the manner in which they deposed in Court. This certainly does not mean that when an appeal lies on facts, the appellate Court is not competent to reverse a finding of fact arrived at by the trial Judge. The rule is -- and it is nothing more than a rule of practice -- that when there is conflict of oral evidence of the parties on any matter in issue and the decision hinges upon the credibility of the witnesses, then unless there is some special feature about the evidence of a particular witness which has escaped the trial Judge's notice or there is a sufficient balance of improbability to displace his opinion as to where the credibility lies, the appellate Court should not interfere with the finding of the trial Judge on a question of fact.'

21. Clearly, in the judgment under appeal the rule of practice laid down in 'AIR (38) 1951 S C 120' with respect to the appreciation of oral evidence by the appellate Court has not been followed. In the judgment under appeal the learned Judge said:

'On behalf of the respondent the main argument was that as the will was a natural one, even such evidence as the petitioner had been able to produce was sufficient to prove it. According to the will, the reason for Lal Chand's changing his mind and leaving one shop at Amritsar out of his property to Mt. Ishar Kaur was that she had several daughters for arranging whose marriages she needed assistance, and the property was being bequeathed to her for the benefit of her daughters. It 's certainly not impossible that Lal Chand may have relented in his attitude towards Mathra Das sufficiently to have felt a desire to assist his grand-daughter but even if he did so, it is hardly likely that he would have executed a will containing so many mistakes and without referring to his previous will or consulting any other members of nis family except Mt. Ishar Kaur, and on the whole I am of the opinion that the execution of the will have not been satisfactorily established.'

22. As stated above, in deciding the appeal the learned Judge thought that there was an element of improbability arising from proved circumstances which outweighed the finding as to the credibility of witnesses arrived at by the District Judge. Briefly summarized, those circumstances are that in the will of 1940 Lal Chand gave his age as 74 years whereas according to the recitals in the wilt of 1929 the age of Lal Chand in 1940 was 75 years, that in the will of 1940 Lal Chand referred to his partition with Mathra Das as having taken place twelve years ago whereas that partition took place eighteen years before 1940, that in the will, Exhibit P. A. Lal Chand refers to himself as being joint in business with Daulat Ram and Chuni Lal whereas he ceased to be so about 1925, and that in describing the property at Lyallpur he mentioned that one of the houses was situate in 'Gumti bazar', Lyallpur, although that house was situate in Montogomery baear, Lyallpur.

23. Now, the learned Judge himself finds that the discrepancy with respect to the ago of the testator is not very material. The learned Judge, however, thinks that the statement that Mathra Das separated from Lal Chand twelve years beforethe execution of the will, Exhibit P.A., was a serious matter. On this point no questions were put to the scribe or the attesting witnesses and it appears that the testator was thinking of the year of the execution of the previous will when he stated that Mathra Das separated from his twelve years before 1940. In the will one of the properties is stated to be situate in 'Gumti bazar', Lyall ur. This statement, however, does not affect the genuineness of the will for it is in evidence that Shrimati Ishar Kaur, who was present at the time of the execution of the will and thumb-marked the will, lived at Lyallpur and knew that the house in question was situate in Montgomery 'bazar.' The mistake in the description of the house appears to be due to the fact that the scribe in writing the document mistook the word 'Montgomery, to be 'Gumti.' On the point of the jointness of Daulat Ram and Chuni Lal with Lal Chand it has to be borne in mind that whereas Mathra Das separated from Lal Chand under a deed of release no such deed of release was ever executed by Daulat Ram and Chuni Lal.

24. In the preceding paragraph I have mentioned the mis-statements referred to in the udgment under appeal and it is plain that none of them is of any consequence. If so, there was no element of improbability arising from proved circumstances which outweighed the finding as to the credibility of the scribe and the witnesses given by the District Judge. The circumstances admit of explanation and do not militate against the genuineness of the will.

25. Mr. Grover then urges that the learned Judge has not followed the rules governing the construction of wills laid down by the Privy Council in 'Jagrani Kunwar v. Dubga Prasad 36 All 93. In delivering the judgment of their Lordships of the Privy Council Lord Shaw said in 36 All 93:

'In the case of a will reasonable, natural, and proper in its terms, it is not in accordance with sound rules of construction to apply to it those canons which demand a rigorous scrutiny of documents of which the opposite can be said, namely that they are unnatural, unreasonable or tinged with impropriety.'

26. In the concluding part of the Judgment under appeal reproduced above the learned Judge found that it was:

'certainly not impossible that Lal Chand may have relented in his attitude towards Mathra Das sufficiently to have felt a desire to assist his grand-daughters.........'

Considering then that the will was reasonable, natural and proper in its terms and there was no special feature about the evidence of the scribe and attesting witnesses of the will, Exhibit P.A., which had escaped the notice of the Court of first instance, I think that the learned Judge was not justified in reversing the rinding of the trial Judge on the question of the execution of the will. In these proceedings it was not maintained that the testimony of Piyare Lal R.W. 4 ana Daulat Ram R. W. 5 affords any rebuttal of the evidence given by Qazi Inayat Ali, Nihal Chand and Ganga Ram.

27. For all these reasons I would allow L.P.A. No. 30 of 1948 with costs throughout.

28. WESTON. C.J., I agree, but as we are differing from the learned Single Judge it is but proper that I should indicate briefly my reasons for so doing. The first point which commends it self to me is that the will propounded by Mt. Ishar Kaur is a will which Is natural, reasonable and proper in its terms. The testator Lal Chand was possessed of considerable property. This property is set out in the will. It is contended onbehalf of the respondents that items of this property really belong to them and not to their father Lal Chand. It is admitted, however that Lal Chand had sufficient property to maintain himself, and the respondent who gave evidence, namely Daulat Ram, admitted that he used to collect rents at Lyallpur and remit them to his father. There is no dispute that Mathra Das, the husband of Ishar Kaur, had been separated from his father Lal Chand about the year 1922 when his father gave him a house at Amritsar. It is said that Matlua Das executed a registered deed of relin-quishment. The position was restated in May 1929 when Lal Chand executed ft registered will bequeathing the remainder of his property at Amritsar and Lyallpur, excluding the house which had been given to Mathra Das, to his two other sons, the respondents Daulat Ram and Chuni Lal. It appears that Mathra Das did not prosper.'According to Ishar Kaur who gave evidence Mathra Das had no regular occupation and they had no 1oss than eight children, five of whom were daughters, of whom at tile time of the contested will only one had been married although at least two others were of marriageable age. By the will in dispute Lal Chand made no large disposition of property in favour of the family of Mathra Das. What he purported to do was to leave a shop which has been valued at Rs. 3,000/- at Amritsar to Mathra Dass wife Mt. Ishar Kaur, this legacy being expressed to be for the purposes of meeting the expenses of the marriage of Ishar Kaur's daughters. There was also a trifling provision for maintenance of Rs. 5/- a month to be paid out of the other property of the testator. While some attempt was made on behalf of the respondents to suggest that they were self-made men, there seems little doubt that they had been in business with their father. Daulat Ram has admitted both he and his brother paid income-tax. In any event the one shop at Amritsar appears to have been only a small portion of the property over which the testator had disposing power.

29. The testator no doubt was ill and may well have anticipated that he would not long survive. He did in fact die about one month after the date which the disputed will bears. Although he had separated from Mathra Das many years before there is nothing unnatural in the testator in view of the circumstances of Mathra Das desiring to do something to assist his children, particularly in the way of securing marriages' for the daughters who for lack of means appear to have remained unmarried. The will propounded is a modest diversion of the property of the testator from the beneficiaries under the earlier will and if the will was being forged, which is the only alternative to the genuineness of the will, I should have thought that some further advantage would have been sought to be given to the persons who wished to benefit. Apart from the shop valued at Rs. 3,000/- bequeathed by the will there was another property of the testator at Amritsar. Other property was at Lyallpur.

30. When the will propounded is a natural will and the person alleged to have executed it, although in his last illness, is not suggested by Daulat Ram to have been incapable of executing a will at the time it is said to have been executed, the case proximates to that considered by the Privy Council in 'JAGRANI KDNWAB v. DURGA PRASAD', 36 All 93, where it was held that when the will challenged was in every respect a natural will and in accord with the feelings and tenor of life of the testator and its execution is proved by anything like reasonable evidence, the presumptions or law are In favour of Its being maintained. The execution of the will was evideuced by the testimony of the scribe Qazi Inayyat Ullah, by the evidence of Nithal Chand attestingwitness and by the evidence of Oanga Ram, second attesting witness. While there is some suggestion that Nithal Chand was interested in Ishar Kaur as at one time his wife is said to have adopted one of her daughters, the learned Counsel for the respondents has been able to point out before us nothing substantial in the evidence of anyone of these three witnesses which of itself affects the credibility of their evidence. There are some minor discrepancies but as pointed out by the learned District Judge it is to be remembered that while giving their testimony six years after the alleged execution of the will their memory was refreshed as to facts mentioned in the will, on other details such as the order in which persons came and the time when they came discrepancies are understandable and indeed were inevitable. The Supreme Court in a recent judgment 'Sarju Pershad v. Jwaleshwari Pratap', AIR (38) 1951 S C 120 dealing no doubt not with a will but with proof of a contract reaffirmed the rule of practice that when there is conflict of oral evidence of the parties on any matter in issue and the decision hinges upon the credibility of the witnesses, then unless there is some special feature about the evidence of a particular witness which has escaped the trial Judge's notice or there is a sufficient balance of improbability to displace his opinion as to where the credibility lies, the appellate Court should not interfere with the finding of the trial Judge on a question of fact. In the present case the learned Counsel for the respondents has been able to point out no special feature about the evidence of any of the three witnesses called to prove execution of the will, and it seems to me that the learned Single Judge was not justified in holding that the evidence of these witnesses could not be regarded as impressive unless in the words of the Supreme Court there was a sufficient balance of improbability to displace the trial Judge's acceptance of their evidence.

31. As I have said the will is a perfectly natural will and no balance of improbability can be found in its terms. The only circumstance which seems to me of any materiality is that in the second will there is no mention of the earlier registered will executed nearly twelve years before. It may be said to be surprising that the testator did not mention this to the scribe or insist that mention of it should appear in the later will. The scribe says it was not mentioned to him. This may or may not be correct. He is hardly likely to be able to remember and his answer may well be the result of his now finding that no mention of an earlier will appears in the later will which he drafted. The position of the two other sons of the testator under the later will apart from the bequest given to Ishar Kaur would remain exactly the same. These two sons took the rest of the property. If we are to enter into the realm of speculation it may be that the testator considered that the old will would operate subject to what he thought was of the nature of a codicil which he was now executing. It may be that the scribe although he was told about the old will considered that mention of it was unnecessary. The probabilities are that the old will was known to Mathra Das if not to Ishar Kaur, and if this is so the omission of mention of the earlier will Is as surprising in a forged as In a genuine will.

32. The use of certain Arabic or Persian expressions seems to me a matter of no consequence. Obviously they are not the actual words used either by the testator or by whoever was interested in Ishar Kaur and had the will forged. A mis-statement in the will is that the property at Lyallpur is described as in Gumli Bazar, whereas the proper name of the bazar in Lyallpur is Montgomery Bazar. This mis-statement also seems to me of no consequence. No question seems to have been put to the scribe on this point and several explanations are possible, the most obvious being that the scribe misunderstood what the testator was saying. It may well be that the testator did not inform his two other sons of the legacy he proposed to leave or had left for the benefit of the daughters of his other son. According to the evidence of Ishar Kaur these sons had come to Amritsar about fifteen days after the execution of the will. It may be that the testator at this time had become more seriously ill and was disinclined on that account to trouble himself about worldly matters. It may of course be that he expected opposition from his other sons for giving any favours even to the family of the son from whom he had separated long before. Here again it seems to me unprofitable to speculate, but when explanation for and against are possible there is nothing to assist the argument of balance of improbability against the will. Lastly on the point that there is a serious mis-statement in the will where the partition with Mathra Das was referred to as having taken place twelve years earlier, it seems to me that the testator may have been thinking of the time of his earlier will which was about twelve years before the disputed will, and may have forgotten the earlier separation deed executed some six years earlier.

33. It seems to me therefore that there is nothing sufficiently substantial in the circumstantialevidence to form a balance of improbability againstthe will. The learned District Judge, if I may sayso, seems to have considered the case carefully andI do not think the learned Single Judge was justified in disturbing the finding on the grounds statedby him. Naturally the opinion expressed by theSupreme Court in the case I have quoted was notthen available and it does not appear that theauthorities cited in that report were brought tothe notice of the learned Judge. In the circumstances I agree that the appeal should be allowedand I concur with the order proposed by my learnedbrother.


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