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Kabhai Pahadsing and anr. Vs. Bhupat Lallu (Minor as Heir and Legal Representative of Defendant No. 1 Lallubhai Dipsang) and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtGujarat High Court
Decided On
Judge
Reported in(1966)7GLR421
AppellantKabhai Pahadsing and anr.
RespondentBhupat Lallu (Minor as Heir and Legal Representative of Defendant No. 1 Lallubhai Dipsang) and ors.
Cases ReferredGangamovi Debi v. Troiluckhya Nath Chowdhry
Excerpt:
- - therefore, the requirements laid down by the legislature, for the due execution of the will must be insisted to be strictly complied with, however, at the same time, whilst great caution may be necessary before accepting the proof of a will and that caution is expressed in judicial decisions by stating that a will must be proved to satisfy the conscience of the judge it may be well to remember that in construing the relevant part of the section, the legislative, in its wisdom, has not prescribed any particular form or words in which acknowledgment of a-signature or thumb-mark must be made by the testator. the section does not say that the conscience of the court can stand satisfied only if a particular form or particular words are used by the testator. if the conscience of the.....n.m. miabhoy, j.1. two questions arise for decision in this second appeal. the first question is as to whether the will, dated 10th march 1950, was or was not executed in accordance with the requirements of law. the second question is as to whether the learned first appellate judge had applied the correct principles of law for the purpose of satisfying his conscience that the aforesaid document was the will of the testatrix.2. the facts necessary to be mentioned in order to dispose of the aforesaid two questions are as follows. it is an admitted fact that the suit properties belonged to one jivi. jivi died on 13th march 1950. both the lower courts have found that plaintiffs, who are appellants, are the nearest heirs of bai jivi and as such were entitled to inherit her properties. the.....
Judgment:

N.M. Miabhoy, J.

1. Two questions arise for decision in this second appeal. The first question is as to whether the will, dated 10th March 1950, was or was not executed in accordance with the requirements of law. The second question is as to whether the learned first appellate Judge had applied the correct principles of law for the purpose of satisfying his conscience that the aforesaid document was the will of the testatrix.

2. The facts necessary to be mentioned in order to dispose of the aforesaid two questions are as follows. It is an admitted fact that the suit properties belonged to one Jivi. Jivi died on 13th March 1950. Both the lower Courts have found that plaintiffs, who are appellants, are the nearest heirs of Bai Jivi and as such were entitled to inherit her properties. The original defendant No. 1 was the son of a maternal uncle of Bai Jivi. He propounded a will, dated 0th March 1950, by which he was constituted the sole legatee to the estate of Bai Jivi. It appears that Bai Jivi had mortgaged some of the suit properties with defendant No 2. The latter made an application No. 557 of 1949 under the Bombay Agricultural Debtors Relief Act, 1947, for adjustment of that mortgage debt Bai Jivi died during the pendency of this application and, on her death, both plaintiffs and original defendant No 1 applied to the B.A.D.R Court and claimed to be brought on record as Jivi's heirs. The B.A.D.R. Court declined to decide the question and directed the parties to get the dispute settled by a civil Court. In accordance with this direction, plaintiffs instituted the present suit No. 41 of 1955 from which this second appeal arises. It that suit, defendant No. 1 propounded the will aforesaid two main issues were raised by the trial Court for decision. The first issue as to whether plaintiffs were the nearest heirs of Bai Jivi was decided in plaintiffs' favour. That finding is not now disputed by any of the respondents. The second issue related to the proof of the will. The learned trial Judge found that the will had been proved and, on the basis of that finding, he dismissed plaintiffs' suit However, the learned Judge did not award costs to defendants. Plaintiffs preferred Civil Appeal No. 105 of 1956 from the decree and the two respondents filed cross-objections against the order regarding costs. The same two issues were raised for decision in the first appellate Court and the learned appellate Judge found that plaintiffs were the nearest heirs, but that defendant No. 1 had proved the will. Consequently, he dismissed plaintiffs' appeal. He also came to the conclusion that the order regarding the refusal of costs was not proper and, therefore, he set aside that order and awarded costs of the trial Court to defendant No. 1.

3. Now, so far as the will is concerned, some of the findings recorded by the learned Assistant Judge who decided the first appeal were as follows. Exhibit 34 is the will of Bai Jivi. That will bears the thumb mark of Bai Jivi and it has been subscribed to be so by witness Vadilal Tribhovan. The evidence showed that Bai Jivi was capable of signing. But the learned Judge found that, at the time of execution of the will, Bai Jivi had lost her eye-sight because of cataract; that, therefore, Bai Jivi put her thumb mark on the will and Vadilal Tribhovan subscribed the same at her request. The learned Judge also found that, at that time, the scribe Muljibhai Shamalbhai was present and that Muljibhai attested the document in the presence of Bai Jivi. Thus the learned appellate Judge found that Bai Jivi had put her thumb mark on the will in the presence of Muljibhai Shamalbhai and that the latter had attested the document in her presence. Therefore, Mr. Patel does not dispute that the aforesaid document bears the thumb impression of Bai Jivi and is attested by Muljibhai as required by law. But Mr. Patel challenges the validity of the attestation of the other two attesting witnesses. He argues that though these two witnesses purported to attest the document, their attestation did not fulfil the requirements of law. The learned appellate Judge found that none of those other two attesting witnesses was present at the time when Jivi put her thumb mark and witness Vadilal subscribed it. These two attesting witnesses were Himmatsing Ramsing and Hathising Pratapsing. The learned Judge, however, found that those two witnesses, the scribe Muljibhai Shamalbhai, defendant No. 1, and witness Gemalsing, defendant No. 1's power of attorney holder and the Registrar were present at the time when the other two attesting witnesses attested the document. The two attesting witnesses having attested the will after Bai Jivi had already put her thumb mark on the same, it is agreed by both the sides that, in order to succeed, defendant No. 1 must prove that both or any of the aforesaid two witnesses 'received from the testatrix a personal acknowledgment...mark' as required by Clause (c) of Section 63 of the Indian Succession Act, 1925 (No. XXXIX of 1925). Now the finding which has been recorded by the learned appellate Judge on this subject is to be found in paragraph 6 of his judgment. The evidence on this topic has been summarised by the learned Judge as follows. 'Then Hathising Pratapsingh and Himatsing Ramsing have said in their evidence at Exs. 37 and 54 respectively that both of them were asked by Bai Jivi to attest the will and hence they did it. 'In a later part of his judgment, the learned appellate Judge says that he accepted the above evidence. The contention of Mr. Patel is that the aforesaid evidence does not establish that the two witnesses had received a personal acknowledgment from Bai Jivi of her thumb-mark. The argument is that the acknowledgment which was made by Bai Jivi was of her will and not of her thumb-mark. According to Mr. Patel, the law requires that the acknowledgment must be of the thumb-mark. He argues that, as the acknowledgment was not of the thumb mark but of the will, the statute had not been complied with. I am unable to agree with this contention of Mr. Patel, Apart from authorities which, as I shall presently show, are opposed to the contention of Mr. Patel, the relevant part of Clause (c) of Section 63 of the Indian Succession Act which I have already extracted above shows that an acknowledgment of signature or thumb mark does not require to be in express terms. There is nothing in that part of the section which enjoins that the communication of acknowledgment must be by express words and that it cannot be by implication. The Legislature probably insists upon the requirement of attestation to guard against spurious wills from being got probated in Courts. A will comes to be propounded only after the death of the testator and, therefore, at the time of the proof of the will, the testator will not be available either to admit or deny the execution of the will. Therefore, the requirements laid down by the Legislature, for the due execution of the will must be insisted to be strictly complied with, However, at the same time, whilst great caution may be necessary before accepting the proof of a will and that caution is expressed in judicial decisions by stating that a will must be proved to satisfy the conscience of the Judge it may be well to remember that in construing the relevant part of the section, the Legislative, in its wisdom, has not prescribed any particular form or words in which acknowledgment of a-signature or thumb-mark must be made by the testator. The section does not say that the conscience of the Court can stand satisfied only if a particular form or particular words are used by the testator. All that the Legislature has prescribed is that there must be an acknowledgment, that the acknowledgment must be personal, and that it must be of the signature or thumb-mark. But, whilst so saying, the Legislature has not stated that the admission of signature or thumb-mark or its avowal must be in express terms. Whether a signature or thumb-mark has or has not been acknowledged within the meaning of the statute must depend upon the circumstances of each case. If the conscience of the Court is satisfied that the signature or thumb-mark was so acknowledged even impliedly, there is nothing in the section which compels the Judge not to accept proof of the will. There is nothing in the section which compels the Judge to hold that the will has not complied with the requirements of law by reason of the fact that his conscience has to be satisfied in a particular case not by direct but by indirect evidence as a result of an inference to be drawn from facts proved to the satisfaction of the conscience of the Judge. For the above reasons, I have come to the conclusion that the mere fact that acknowledgment by Jivi was in the form that the document was her will and that it was not in the form that it bore her thumb-mark is not in itself a circumstance which must lead to the conclusion that the will was not executed in due form. I am not dealing with a case where the document acknowledged as a will was one on which there was neither a signature nor a thumb-mark at the time when the acknowledgment was made. In such a contingency, the acknowledgment of the document as a will may be regarded to be futile and ineffective. However, the present case is not of that kind. There is ample proof that the document bore Bai Jivi's thumb-mark when Jivi acknowledged it to be her will and before the two witnesses attested the document. This is deposed to by not only Vadilal, the subscriber, but also by the first attesting witness Muljibhai, the scribe. Therefore, those authorities which require that, when the acknowledgment is in the aforesaid form, namely, that the document on which the attesting witnesses are asked to sign is acknowledged to be the will of the testator, the Court must be satisfied that the signature or thumb-mark was already on the document, do not apply to the facts of the present case.

4. Now this very question came up for decision in Manickbai v. Hormasji Bomanji, Qaveqtor reported in I.L.R.I. Bombay 547. In that case also, the acknowledgment made was of the will and not of the signature of the testator. After referring to some English authorities, Green J. laid down the rule in the following words:

The rule to be gathered from those cases is that, if the testator produces a piper and makes the witnesses understand that it is his will, that is an acknowledgment of his signature, if the Court is satisfied that his signature was on the will when the witnesses attested it.

It is true that the learned Judge was not called upon in this case to construe Section 63, Clause (c) aforesaid. The case arose under Section 50 of the Indian Succession Act (X of 1865). Unfortunately, the latter Act is not available to me to-day But Mr. Patel very fairly drew my attention to the commentary by Paruck on the Indian Succession Act where the learned author, after quoting the present Section 63, states in italics the difference between Section 50 of the old Succession Act and Section 63 of the present Act. From Mr. Paruck's note, it appears that the only difference between the old and the new sections is that, whereas the old section contained the word 'must' at several places, that word has now been substituted by the word 'has' or 'shall' in the new section. The same point came up for decision under Section 63 of the present Indian Succession Act before a Full Bench of the Madras High Court in Ganshamdoss Naraycmdoss v. Gulab Bi Sai reported in A.I.R. 1927 Madras 1054. The Full Bench at page 1056 decided the point in the following words:

A personal acknowledgment of execution need not necessarily be restricted to an express statement to that effect, but may include words or conduct, or both, on the part of the testator which may be construed unequivocally as such an acknowledgment.

In that case also, the acknowledgment was in the form that the document was a will and not in the form that the document bore the signature of the testator. The test which was laid down in this Full Bench case was accepted as correct by Wanchoo, C.J. (as he then was) in Smt. Umrao and Anr. v. Bakahi Gopal Bux A.I.R. 1957 Rajasthan 180. The same test was applied by the Punjab High Court in Chhanga Singh Indar Singh v. Dharam Singh and others A.I.R. 1965 Punjab 204. The Calcutta High Court also accepted the same view in Amarendra Nath Chatterjee and another, minors, by their mother and guardian Dakshabala Debt v. Kashi Nath Chatterjee I.L.R. 27 Calcutta 169. At page 171, Their Lordships following Manickbai's case held that the acknowledgment of a document as a will by a testator was a sufficient acknowledgment of the testator's signature. From these decisions, it is obvious that the case-law is against the proposition which Mr. Patel canvasses for. Apart from the fact that I agree with the above decisions, I am bound by one of them, viz. Manick-bai's case. Therefore, I have come to the conclusion that the acknowledgment proved to have been made by Bai Jivi that the document was her will was a sufficient acknowledgment and as the attestation by the aforesaid two witnesses was made by them in the presence of Bai Jivi, the attestation was, sufficient in law. Thus, in my judgment, the learned appellate Judge was right in holding that the will had been, duly proved.

5. Mr. Patel raises one more point. He contends that law requires one more additional fact to be proved before a will can be held to be duly executed. He says that the aforesaid part of Clause (c) also requires that the attesting witness must actually see the signature or thumb-mark of the testator before attesting the document and that the failure to do so would make the attestation invalid. This submission of Mr. Patel is based upon some of the English authorities referred to in Manickbai's case and, some other cases, two of which were cited before me. The first case is Blake v. Blake In Re Goods of Mary Gunstan (1882) VII Probate Division 102 and the second is Daintree and Butcher v. Fasulo and Ors. (1888) XIII Probate Division 67. These two English decisions are based upon the language used in Section 9 of the Wills Act, 1837 (1 Vict. c. 26). Unfortunately, that Act is not available also to me and, therefore, it is not possible for me to compare the language used in that section with the language used in Clause (c) aforesaid. The English authorities, however, introduce a qualification. They say that even if the attesting witnesses do not see the signature, attestation will be valid provided they have an opportunity to see the signature of the testator. In my judgment, it is difficult to agree with the contention that the language used in Clause (c) aforesaid requires that the attesting witness must also see with his own eyes the signature or mark of the testator or must have an opportunity of seeing that signature or mark. All that the clause requires is the communication of the fact by the testator that the document bears his signature. The aforesaid part of the section nowhere casts a duty upon the attesting witness to see for himself that the signature is there nor does it say that if he omits to do so, he does it on the peril of the document being held not duly executed. However, it is not necessary in the present case to decide whether the Indian law requires the satisfaction of the aforesaid requirement of the English law. Even assuming that the said statement of law applies to our law, I have no doubt whatsoever that, on the facts of the present case, that condition has been satisfied. It is true that none of the aforesaid witnesses has said, nor is there any other evidence to show that the aforesaid two attesting witnesses had actually seen the thumb-mark of Bai Jivi. But a mere look at Ex. 34, the will, will show that the attesting witnesses have put their signatures just opposite the place where the thumb-mark of Bai Jivi is and both the thumb-mark of Jivi and the signatures of the attesting witnesses are on the same page. Therefore, apart from the question that there is a strong probability that the aforesaid attesting witnesses must have seen the thumb-mark, even if one assumes that at the time of attestation, the paper was folded in such a way that the witnesses had not actually seen the signature, there cannot be any doubt that the attesting witnesses had at least an opportunity of seeing the thumb-mark of Jivi. Under the circumstances, in my judgment, the second point urged by Mr. Patel also must be negatived and the finding of the learned appellate Judge that the will had been duly proved must be accepted.

6. The second argument which Mr. Patel urges is that the learned appellate Judge has gone completely wrong in the application of the proper principle for satisfying his conscience that the document is the will of Bai Jivi. It appears that plaintiffs relied upon a number of circumstances appearing in the case as pointing out that the will was executed under suspicious circumstances. The learned Judge after acknowledging that some of the aforesaid circumstances were of a suspicious nature, proceeded to state that the fact that the will had been registered was conclusive evidence of its genuineness and that that evidence had the effect of dispelling the aforesaid doubts. Mr. Karlekar did not dispute the contention of Mr. Patel that the approach of the learned Judge in the latter matter was erroneous and Mr. I.R. Patel did not contend to the contrary. There is ample authority for the proposition that, though registration is one of the factors, and an important factor, which has got to be taken into account, that by itself cannot be accepted as exonerating the Court from its responsibility of adjudging that the document was, in fact, executed by a testator or a testatrix, as the case may be, whilst he or she was in a sound disposing state of mind at the time of the execution of the will and that the document signed was understood by him or her as a will. In the case of Rani Purnima Debi and Anr. v. Kumar Khagendra Narayan Deb and Anr. reported in : [1962]3SCR195 Their Lordships of the Supreme Court made the following observations:

If a will has been registered, that is a circumstance which may, having regard to the circumstances, prove its genuineness But the mere fact that a will is registered will not by itself be sufficient to dispel all suspicion regarding it where suspicion exists, without submitting the evidence of registration to a close examination. If the evidence as to registration on a close examination reveals that the registration was made in such a manner that it was brought home to the testator that the document of which he was admitting execution was a will disposing of his property and thereafter he admitted its execution and signed it in token thereof, the registration will dispel the doubt as to the genuineness of the will. But if the evidence as to registration shows that it was done in a perfunctory manner, that the officer registering the will did not read it over to the testator or did not bring home to him that he was admitting the execution of a will or (as, for example, by seeing the testator reading the will) that the testator knew that it was a will the execution of which he was admitting, the fact that the will was registered would not be of much value. Registration may take place without the executant really knowing what he was registering.

The learned appellate Judge has referred to the case of Gangamovi Debi v. Troiluckhya Nath Chowdhry reported in I.L.R. 23 Calcutta 537, in support of the proposition that registration is conclusive evidence of the genuineness of a will. The observations which Their Lordships made in regard to registration are as follows:

The registration of a document is a solemn act to be performed in the presence of a competent official appointed to act as Registrar, whose duty it is to attend the parties during the registration and see that the proper persons are present, and are competent to act, and are identified to his satisfaction, and all things done before him in his official capacity and verified by his signature will, unless it be shown that a deliberate fraud on him has been successfully committed, be presumed to be done duly and in order.

In my judgment, this case does not support the proposition laid down by the learned appellate Judge. All that the case decides is that, unless it is proved that a deliberate fraud was successfully committed on the Registrar, the acts done by him must be presumed to have been properly done. But the case is not an authority for the proposition that the act of a Registrar is conclusive evidence of the genuineness of a will and is by itself sufficient to dispel doubts which otherwise may arise on a perusal of the evidence relating to a will. However, Mr. Karlekar contends that, though the learned Judge had gone wrong in making the broad proposition that the registration was conclusive evidence to dispel doubts, in fact, the learned Judge has considered a number of other circumstances in the case for the purpose of arriving at his conclusion that his doubts were dispelled and that the will was a genuine one. In the present case, in my judgment, having regard to the fact that the Registrar has not been examined and that we have merely to depend upon a presumption that the acts done by him were all in order and having regard to a number of circumstances which have been mentioned in the judgment of the learned Judge himself and on which Mr. Patel relies and having regard to the fact that the judgment of the learned Judge is to a certain extent, vitiated by his view about the conclusive nature of registration evidence, it will be better if I reconsider all the above circumstances tending to raise doubts in the light of the other circumstances tending towards genuineness of the document and to decide if my conscience is satisfied that the document was a genuine document, that it was the last will and testament of Bai Jivi and arid that she was in a sound disposing state of mind at the time when it was executed. Now the circumstances on which Mr. Patel relies are as follows:

(1) That Bai Jivi was a resident of village Dhamanja, Taluka Karjan. The will was not executed at that village, but it was executed at the village Abhra, Taluka Karjan, at the house of witness Gemalsiag, where she was taken only a month before the date of the will.

(2) That this Gemalsing was nobody else but the uncle of the sole legatee, defendent No. 1, and his power of attorney holder.

(3) That Bai Jivi was seriously ill on 9th March 1950, only a day before the execution of the will, and that she died three days there after on 13th March 1950.

(4) That Gemalsing, the power of attorney holder, took a prominent part in the execution of the will.

(5) That the will was not dictated by Bai Jivi but it was dictated by Gamalsing and that that will was not read over to the testatrix at any time.

(6) That though Bai Jivi knew how to sign, she did not sign the document, but, instead, put her thumb-mark.

(7) That two out of the three attesting witnesses were the relatives of Gemalsing.

(8) That defendant No. 1, the sole legatee, himself executed a will in respect of the same properties six months after the execution of the present will, constituting the grandson of Gemalsing as his sole legatee.

Now Mr. Patel is right in contending that each of the aforesaid circumstances should not be considered or appreciated in isolation, but that all the circumstances must be considered or appreciated cumulatively and their general and cumulative effect must be considered. However, this does not mean that it is improper to consider separately the efficacy and value of each one of the circumstances. Before I consider the cumulative effect of the above circumstances, it will be useful to mention a few salient circumstances in the context of which the aforesaid circumstances have got to be appreciated. The evidence discloses that defendant No. 1 was the son of a maternal uncle of Bai Jivi; that defendant No. 1 resided as a member of the family of Bai Jivi's father, that, on Jivi's father's death, Jivi and defendant No. 1 resided together and defendant No. 1 looked after the properties of Bai Jivi; that Jivi regarded defendant No. 1 as her own brother and that both of them continued to live jointly till Jivi fell ill. The evidence is that Jivi was suffering from dropsy. She was pretty old and so was defendant No. 1. Under the circumstances, if Jivi happens to die, it is quite clear that defendant No. 1, not being the nearest heir, would have to lose the benefit of the properties which he had enjoyed so long, in his capacity as cousin of Bai Jivi. The evidence discloses that plaintiffs, the nearest heirs, were residents of another village. There is nothing on record to show that there was any such amity or affability between the prospective heirs and Jivi as would impel her not to dispose off properties in favour of defendant No. 1, who, naturally, would be, having regard to the previous course of conduct, the first object of Jivi's love. It is true that Bai Jivi was suffering from illness, but the illness which she suffered from was only dropsy and there is medical evidence adduced by plaintiffs themselves which shows that, on 9th March 1950, though her condition was serious, such as would justify the summoning of the Registrar to Jivi's place for registering the document, she was still in possession of her mental faculties and knew and understood the acts which she was doing. It is true that she was taken from her own village to a strange village about a month before her death. But there is nothing on record to show, nor any other circumstance from which a reasonable inference can be drawn, that she was taken to another village with a view that the will may be got executed from her in secrecy. The evidence tends to show that she was removed to no other place than the place of her own maternal uncle. The object appears to be to see that she is made more comfortable and that she may have change of air. Under the circumstances, the bare fact that she was taken to another village and that she was putting up at the place of Gemalsing, the power of attorney holder of defendant No. 1, is not such a circumstance as should, by itself, excite any one's suspicion. Nor should the fact that Gemalsing took a prominent part in the execution of the will be regarded as such a circumstance as should vitiate the will, either by itself, or, in conjunction with the other circumstances mentioned above. Although Gemalsing was a power of attorney holder of defendant No. 1, the situation itself was such that, if Gemalsing was not acting honestly, there would be a strong temptation on his part to derive some benefit from out of the condition in which, according to plaintiffs, Jivi was then placed. But it redounds to the credit of Gemalsing that he did not take any advantage whatsoever, either for himself, or for his son, who was equally related to Jivi as defendant No. 1 was. Once it is conceded or held proved that the visit of Jivi to Dhamanja was not impelled by any ulterior motive and if her illness happens to take a serious turn on the 9th, then, it is but natural that Bai Jivi, if she intended to make a will, should look upon Gemalsing to help her to execute one. It would follow also that, then, the attesting witnesses were bound to be persons belonging to that particular village. The mere fact that Gemalsing called the writer, called the Sub-Registrar, and paid the registration charges, are all circumstances which are neutral, specially in view of the fact that Gemalsing himself did not derive any benefit, nor anybody connected with him. The fact that defendant No. 1 subsequently executed a will in favour of a grandson of Gemalsing ought not to excite any suspicion either, or, in any case, should not be regarded as such an overwhelming circumstance as to neutralize the effect of the other circumstances which I have described as cardinal features of the case. There is nothing to show that the will which defendant No. 1 made was the outcome of any pact between him and Gemalsing. It is important to notice that, having regard to the fact that Gemalsing was the uncle of defendant No. 1 and that defendant No. 1 was issue-less, Gemalsing might be heir or one of the heirs of defendant No. 1. By the execution of the will of defendant No. 1, Gemalsing would rather be disinherited and his grand-son would benefit. I agree with Mr. Patel that the circumstance that the will was dictated, and specially the circumstance that it was not read over to Bai Jivi, are certainly Very important circumstances to be taken into account. But, having regard to the relationship of Bai Jivi and Gemalsing and the fact that the will appears to be a natural one in the sense that Jivi is dispos-ing off the properties in favour of one who normally should be the first object of her love, and that the will is of a simple nature under which the whole of the estate of Bai Jivi was to be bequeathed to defendant No. 1 and, having regard to the evidence that Bai Jivi was conscious and understood what she was doing, the circumstance that the document was ultimately got registered in the presence of a competent officer, and the fact that Bai Jivi had cataract and was unable to sign as she ordinarily did which explains her thumb-mark instead of her signature having regard to all the aforesaid circumstances of the case and specially having regard to the fact that a large number of circumstances on which reliance placed by Mr. Patel is such that each one of them would appear natural when reviewed in the context of the broad circumstance that Bai Jivi and defendant No. 1 resided together as sister and brother since their child-hood, my conscience is satisfied that the aforesaid document was a genuine one and defendant No. 1 on whom the burden lay of dispelling the initial suspicion engendered by the aforesaid circumstances must be taken to have discharged that burden. Under the circumstances, there is no substance in the second contention of Mr. Patel also.

7. Finally, Mr. Patel contends that, in any case, the learned appellate Judge was wrong in disturbing the decretal order of the learned trial Judge by which he refused costs to the two defendants. Mr. Patel draws my attention to the fact that defendant No. 1 contested the suit, not only on the ground of the existence of the will of Bai Jivi, but also on the ground that he had been adopted by Jivi's father, and that defendant No. 1 had failed to substantiate that plea. However, I notice that the cross-objections were not resisted by plaintiffs on this latter ground in the first appellate Court. I am sitting in second appeal and I cannot interfere with the decree of the learned appellate Judge unless a point 6f law is made out. It may be that the learned Judge might not have interfered with the aforesaid part of the decree of the lower Court if the aforesaid argument was urged before him. But, in my judgment, the fact that Mr. Patel is now able to give a ground in support of the order of costs passed by the learned trial Judge cannot justify the interference of this Court at the second appellate stage.

8. As regards costs of the present appeal, defendant No. 2, the mortgagee, ought not to be allowed any costs. His stake in the present litigation, if I may say so, was almost nil. The real contest was between plaintiffs on the one hand and defendant No. 1. Defendant No. 2 would hardly be concerned as to which of the two rival claimants should be held as the legal representative of the deceased Bai Jivi. I notice that the learned appellate Judge has not awarded defendant No. 2 his costs in the first appeal. Under the circumstances, I propose to dismiss, the appeal with costs in favour of respondent No. 1's heirs only and order that plaintiffs and respondents Nos. 2 to 5 shall bear their own costs.

Appeal is dismissed with costs in favour of respondent No. 1's heirs only. Plaintiffs and respondents Nos. 2 to 5 shall bear their own costs.


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