P.B. Mukharji, J.
1. This is an appeal by the propounder against the judgment and decree of P. G. Mallick, J. dismissing the propounder's application for probate of the will of one Gregory George Carapiet dated the 28th December 1955. The propounder is the wife of the testator.
2. The terms of the will are simple. It first revokes previous testamentary writings and codicils and appoints his wife Anna Elda Gula Carapiet, the propounder and the Mercantile Bank of India as executors. Then follow the dispositions which are short and simple. It gives Rs. 65,000/-to the testator's sister Virginia Carapiet and the rest and residue to his wife the propounder with the wish that she does not remarry. A wish is also further added that after the death of the wife, the property she dies possessed of, be delivered to the Jerusalem Armenian Partriarchate for the education of orphans. It is a short will and these are its brief and only terms.
3. It ends by saying that the testator had a recent stroke of paralysis on the right side and was unable to sign clearly and distinctly and hence along with his signature made by his right hand, he had also put his left thumb impression in the presence of two witnesses. It states also that although he was not sound in body, he was sound in mind and that the will has been read out to him and that he has fully understood the contents of the same. The will was executed at the Jehangir Nursing Home, Poona, where the testator died on the 1st January 1956 and where he was admitted on the 21st October 1955. The will is witnessed by Dr. P. M. Bharucha the Resident Medical Officer of the Jehangir Nursing Home and by the Attending Nurse, S. Leitao.
4. The learned trial Judge comes to a definite finding that he is satisfied on the evidence that on the 28th December 1955, the testator executed the testamentary instrument. In fact, he says that the evidence of both Dr. Bharucha and Nurse Leitao on the fact of execution of the will is acceptable to him. Having found that the will was duly executed, the learned trial Judge, however came to the conclusion that the testator had no sound disposing mind and it is really on that ground that he dismissed the present application for probate. In holding that the testator had no disposing mind the learned Judge has gone against all evidence on record including the evidence of all the doctors and all the nurses who deposed that the testator had a sound disposing mind and relied entirely on the evidence of only one solitary witness Rev. Clevent William Venkata Ramiah.
5. The main reason for which the learned Judge appears to dismiss the overwhelming mass of evidence of doctors and nurses is that somehow or other they were all supposed to be under the influence of the propounder who is repeatedly described in the judgment as an 'attractive woman of many qualities', with 'pleasing manners', 'great social qualities', 'intelligent', 'shrewd' and 'capable'. Some minor points of discrepancy have been mentioned by the learned Judge in the medical evidence but they are not enough to make him reject all medical testimony, which ho did, only on the ground of the influence of the charming qualities of the propounder on the medical witnesses. We are satisfied on the evidence on record that this inference of the learned trial Judge about the devastating effect of feminine charms on the whole world including the old and sedate doctors of the medical profession in Poona is based entirely on suspicion. This Court is not unaware that charms of a woman can lead to undue influence and that feminine charms may have unpredictable effects on the young and the old alike. But the Court of law must proceed by proof of the effect of such charms and if it is a case of undue influence it must be established as a fact. It was nobody's case on the records here that the propounder exercised undue influence on the doctors and nurses or that her social charms so hypnotised them, that they all came in procession to tell an untruth about the mind and body of the patient they were nursing. There is not a little of evidence to support such a drastic conclusion. On the other hand the curious allegation was that the wife by her love and attention exercised undue influence on the husband. Fortunately this plea was abandoned and this Court was spared the task of having to decide if a duty performed can by legal alchemy be an undue influence.
6. The outstanding reason for which we are unable to uphold this judgment is two-fold. The learned Judge's reliance only on the evidence of Rev. Venkata Ramiah is, in our opinion, unjustified. Secondly, there are inherent infirmities of serious nature in the testimony of Rev. Venkata. Ramiah which make it entirely unsafe to rely on his uncorroborated testimony. We shall now state the reasons for this view briefly.
7. The evidence of Rev. Venkata Ramiah is that the testator was not in a sound physical and mental condition to make the will on the date he is supposed to have made it. He bases his conclusion on the ground of his visit to the testator to give him sacrament. He found him not in a fit condition to receive that sacrament. This visit he fixes on the 26th December 1955 in the morning. He says that was his first visit. On the day of the execution of the will, which was the 28th December 1955, he does not pledge his oath that he visited him but he says that he had paid two other visits whose dates he could not definitely fix. In answer to question 32, he says that he cannot remember the date of his second visit but that his third visit was on the 31st of December. Therefore, he presumed in evidence that his second visit must have been either on the 27th or the 28th or the 29th.
8. Now, this case that Rev. Venkata Ramiah visited the testator and found him in such an unfit physical and mental condition was not put to any of the doctors and nurses who were called by the propounder to prove testamentary capacity. That, in our judgment, is so serious an omission as to have led to complete miscarriage of justice in this case. The omission is so serious that, in the absence of this case being put to any of the medical witnesses and strangely enough not being put even to the propounder when she was in the box giving testimony in support of the will, this Court does not know what the evidence of these persons would have been if the case, which was made by witness Rev. Venkata Ramiah, was put to these witnesses. It may be noted that Rev. Venkata Ramiah was practically the last witness in the suit except the formal opinion evidence of one Dr. Pijush Kami Das and one Mr. Chittaranjan Mazumdar called by the respondent. It also is in evidence that Rev. Venkata Ramish was in Calcutta for this purpose of giving evidence ever since the 10th May 1957. He was in Calcutta when the propounder Mrs. Carapiet was being examined on the 23rd May, 1957. In Spite of the presence of Venkata Ramiah in Calcutta waiting to be sprung as the last dramatic witness for the defendant, not a word was put to the propounder when she was in the box about the witness Venkata Ramiah having found the testator physically and mentally unfit.
9. Failure to put the important and crucial part of the case to the witnesses coming to prove testamentary capacity must be held against the respondents. It is all the more so because the case of witness Venkata Ramiah is that as early as in October, 1956 he had told this story at Poona to Mr. Aratoon and the learned counsel Mr. Ganguli. If that was so, then there can be no doubt that this case would have been put to the doctors and nurses who were being examined on commission in Poona itself. It is also strange why then the respondents did not have the evidence of this witness Venkata Ramiah immediately on commission at Poona and why he was kept up the sleeves to be played as a last trump as a last witness in the case when the entire evidence on the case of the propounder had been made and concluded. Lastly this course is ail the more reprehensible here because witness Venkata Ramiah admits that on all his visits to the testator's room in the nursing home he found the wife present (Q. 81) and if that is so then if the wife was put that case she might have denied but by keeping back this case from her, she was denied the necessary opportunity to do so, leading to failure of justice in this case.
10. The law is clear on the subject. Wherever the opponent has declined to avail himself of the opportunity to put his essential and material case in cross-examination, it must follow that he believed that the testimony given could not be disputed at all. It is wrong to think that this is merely a technical rule of evidence. It is a rule of essential justice. It serves to prevent surprise at trial and miscarriage of justice, because it gives notice to the other side of the actual case that is going to be made when the turn of the party on whose behalf the cross-examination is being made comes to give and lead evidence by producing witnesses. It has been stated on high authority of the House of Lords that this much a counsel is bound to do when cross-examining that he must put to each of his opponent's witnesses in turn, so much of his own case as concerns that particular witness or in which that witness had any share. If he asks no question with regard to this, then he must be taken to accept the plaintiff's account in its entirety. Such failure leads to miscarriage of justice, first by springing surprise upon the party when he has finished the evidence of his witnesses and when he has no further chance to meet the new case made which was never put and secondly, because such subsequent testimony has no chance of being tested and corroborated.
11. On this point the most important and decisive authority is Browne v. Dunn, reported in (1893) 6 R 67. It is a decision of the House of Lords where Lord Herschell, L. C., Lord Halsbury, Lord Morris and Lord Bowen were all unanimous on this particular point Lord Chancellor Herschell, at page 70 of the report observed:
'Now, my Lords, I cannot help saying that it seems to me to be absolutely essential to the proper conduct of a cause where it is intended to suggest that a witness is not speaking the truth on a particular point, to direct his attention to the fact, by some questions put in cross-examination showing that that, imputation is intended to be made, and not to take his evidence and pass it by as a matter altogether unchallenged and then, when it is impossible for him to explain, as perhaps he might have been able to do if such questions had been put to him, the circumstances which it is suggested indicate that the story he tells ought not to be believed, to argue that he is a witness unworthy of credit. My Lords, I have always understood that i you intend to impeach a witness you are bound, whilst he is in the box, to give him an opportunity of making any explanation which is open to him; and, as it seems to me, that is not only a rule of professional practice in the conduct of a case, but is essential to fair play and fair dealing with witnesses.'
12. Lord Halsbury, the other member of the House of Lords, at page 76 of the same report said:
'My Lords, with regard to the manner in which the evidence was given in this case, I, cannot too heartily express my concurrence with the Lord Chancellor as to the mode in which a trial should be conducted. To my mind nothing would be more absolutely unjust than not to cross-examine witnesses upon evidence which they have given, so as to give them notice, and to give them an opportunity of explanation, and an opportunity very often to defend their own character, and, not having given them such an opportunity, to ask the jury afterwards to disbelieve what they have said, although not one question has been directed either to their credit or to the accuracy of the facts they have deposed to.'
13. In fact Lord Halsbury described the situation as a 'perfect outrage' at page 77 of the said report. After quoting the evidence the learned Lord said:
'My Lords, it seems to me that it would he a perfect outrage and violation of the proper conduct of a case at Nisi Prius if, after the learned counsel had declined to cross-examine the witness upon that evidence, it is not to be taken as a fact that that witness did complain of the plaintiff's proceedings, that he did receive advice, that he went round to Mr. Dunn as a solicitor, and that he did sign that retainer, the whole case on the other side being that the retainer was a mere counterfeit proceeding and not a genuine retainer at all.'
14. The same view is expressed in the 13th Edition of Odger on Pleading and Practice at page 261 and the 9th Edition of Phipson On Evidence at page 497-98.
15. Secondly, the infirmities in the testimony of witness Venkata Ramiah are far too great and serious to justify any reliance on his testimony.
After discussing evidence in this respect His Lordship proceeds).
16-19. The question of a sound mind is a dominant question in a court of probater. Numerous decisions of high authorities have laid down from time to time tests by which to judge a sound disposing mind. It is not an absurd test. Nor is it the test of a perfectly healthy and perfect mind. Indeed most of the wills are not made by persons young and vigorous and glowing in health. The test of a sound disposing mind is in law a workable test. It means in plain language an appreciation of the fact that the man is making a will, an appreciation of the contents of that will and an appreciation of the nature of disposition that he is making having regard to the claims of affection and family relationship and claims of the society or community to which he belongs. It is not a hypothetical nor an impracticable test. It is not the test of a psychologist or a psycho-analyst or a psychiatrist who in the modern age is prone to consider all human mind to be inherently unsound by nature and abnormal. Nor is it the too Scientific test which would satisfy the highest technical medical examinations. Some idea of what this sound disposing mind in testamentary law is, can be gathered from Section 59 of the Succession Act and the statutory Explanations thereunder. In Explanation 2 of Section 59 of the Succession Act it is expressly stated that persons who are deaf or dumb or blind are not thereby incapacitated for making a will if they are able to know what they do by it. Similarly under Explanation 4 of Section 59 of the Succession Act no person can make a will while he is in such a state of mind whether arising from intoxication or from illness or from any other cause that he does not know what he is doing. The illustrations make it clear that a mere perception of what is going on in the immediate neighbourhood and an ability to answer familiar questions but without competent understanding as to the nature of his property or the persons who are kindred to him or in whose favour it would be proper that he should make his will, will not be enough proof of a sound mind within the meaning of Section 59 of the Succession Act. These Statutory Explanations are not intended to be exhaustive but they give practical illustrations to explain a sound disposing mind.
After discussing evidence of medical witnesses His Lordship observed).
20-22. On this medical evidence of eminent doctors, whose evidence we find no reason to reject, we are bound to hold that the testator had, in spite of his many illnesses, a sound mind within the meaning of Section 59 of the Succession Act to execute his Will. Ho knew what he was doing and ho was fully alive to the nature of the property he was disposing, and the persons in whose favour he made such disposition.
23. Gases on this point of a sound mind are not always helpful except for the general principles which arc well settled and which we have earlier explained in this judgment. It may nevertheless be relevant to refer to the English case, In the Estate of Ann Holtam Gillett v. Rogers, reported in (1913) 108 L. T. 732. This was a case of a testatrix who was incapable of speaking or writing owing to an apoplectic stroke and who only assented by nods of her head and several pressures of her hand in answer to questions put to her by the person drawing her Will and the testatrix made a mark with a pen in lieu of a signature. The jury and the Court in that case an spite of that context found in favour of the Will and In spite of the fact in that case where a Dr. Bell who saw the testatrix only three or four days before her death had said in evidence that when he had seen her she was unconscious, paralysed on her right side, devoid of the power of speech, incapable of conscious movement of the head or the arm and in spite of the fact that in the opinion of that doctor she was absolutely incapable of making a will.
24. There is no hard and fast rule on this Branch of the law. It is not intended by these cases that every paralytic is either competent or incompetent to make a Will in all circumstances. Each case will depend on its own facts. Nobody, I suppose, would ever suggest that a man who had his brain paralysed would have a sound mind to make a Will. But that does not mean that if somebody's right leg is paralysed, he is incapable of making a Will provided his mental faculties are in reasonable working order.
25. We are, therefore, satisfied on the evidence that the propounder in this case has satisfied the Conscience of the Court within the rule laid down in Barry v. Butlin, (1838) 2 Moo. PC 480: 12 ER 1089, which in our recent decision in Ajit Chandra v. Akhil Chandra, : AIR1960Cal551 we had occasion to consider. Naturally a propounder who is an executrix herself and who takes the biggest benefit of the estate, will have to remove the suspicion of the court and the court will be jealous in examining the circumstances and the facts. This court has zealously examined and carefully scrutinized the evidence. The evidence seems to be overwhelming in favour of the testamentary capacity of the testator for reasons which we have already discussed. We, therefore, set aside the judgment and decree of the learned trial Judge, who refused probate of this will.
26. We must in conclusion record here the fairness with which Mr. Ganguli, the learned counsel for the respondent, argued this case stating that he could not, on this evidence, support the judgment of the learned trial Judge. That was in the best traditions of the Bar.
27. It follows, therefore, that there must be a probate for this Will. We accordingly allow the appeal, set aside the judgment and decree of the trial court and direct and order probate of the Will of Gregory George Carapiet dated the 28th December 1955.
28. A point of probate practice of great importance, however, remains to be disposed of. The learned counsel for the parties appear to have agreed to certain arrangements for disposal of the estate of the testator. These terms, which are described as terms of settlement, are supposed to he signed by all the interested persons. We arc asked to keep these terms on the records of this court. A court of Probate always shies at tenns of settlement. A Court of Probate is said to be a Court of Conscience which is not to be influenced by private arrangements of the parties. Either it grants probate to a Will or it rejects such grant. For such a court, it is said, there is no middle path for a happy compromise. The rule of law is stated to be that there can be no probate by consent. Either it is grant or refusal. The Court has to be satisfied in each case whether the Will proposed is truly the Will of a capable testator or not. It is not concerned with any other arrangement. It has been said over and over again that there is no such thing as conditional probate or an amended probate. In is either all or nothing. That seems to be sensible enough law.
29. The court, however, has a way of softening the austerity and rigour of this procedure. The practice o the court has discovered one such way in this regard. In England, such terms of Settlement are allowed to be filed and are made what is said to be a 'rule of the court'. See In the Estate of Cook, (1960) 1 All ER 689 where the court pronounced for the Will in solemn form and the terms of compromise were made a Rule of Court. The testamentary rules and probate practice in this court do not seem to indicate that there is such a procedure available here for making such terms of settlement a rule of the court. But nevertheless, it has formulated a practice, consistently followed, almost without exception, of making the terms if not a rule of the court but a record on the file of the court. That does not mean that these terms become a part of the grant or refusal of the probate or executable as such. But it only means this that the records of the court will show that the interested parties had arranged to dispose of the property according to such agreement when it reaches their hands, but then such agreement does not thereby become executable as a decree of court but can only be enforced by independent proceeding or suit in the ordinary way as an agreement. The procedure so adopted may be justified rationally by suggesting that this gives a certain amount of authenticity and solemnity to the agreement, In practical effect, the procedure helps nobody because the filing of the agreement does not help in the execution nor does it conclude any possible question on the validity or enforceability of such agreement. The court only allows to be filed with its records a Written declaration by the parties themselves that the parties have between themselves come to a certain arrangement and nothing more. But this does not mean that the court makes a declaratory decree in terms of the agreement filed. It does nothing of the kind. The court expresses no opinion whatever on such agreement. The court's task is over by its judgment in refusing or as in this case by granting the probate independently of whatever agreement the parties may have arrived at. The court has in this appeal independently come to this judgment that this is the Will of which probate should be granted. What the parties should do thereafter and how they would dispose of the property when it reaches their hands under the probate is a matter for them and not for the testamentary court.
30. It is necessary to refer to certain Indian and English cases in order to explain and clear this practice. In Boughey v. Minor, 1893 P. 181 a testator by his Will bequeathed the residue of his real and personal estate for the establishment of an agricultural college. The Will was disputed by one of his next of kin who was also heiress-at-law; but a compromise was agreed to, by which the Will was to be proved in solemn form without opposition. The Attorney General, as a person interested in the disposal of the residue, was cited, and appeared at the hearing to give his sanction to the compromise. Curiously enough in this case also the Will was opposed on the ground of testamentary incapacity, but after negotiations an arrangement was made for settlement. The court sanctioned such settlement and a probate was granted of the Will accordingly. This, however, was a case of first instance before any court had pronounced either for or against the Will. In Saroda Kanta Dass v. Gobind Mohan Das, 12 Cal LJ 91 this procedure came up for comment. A Division Bench of this court appears to come to the conclusion there that when probate has actually been revoked by a court of first instance on the ground that the will propouded is a forgery, the parties are not entitled to bring the matter on appeal and then by compromise obtain a reversal of the decision and a revival of the probate without any adjudication on the merits. It was held there that such compromise could not be regarded as lawful within the meaning of Order 23, Rule 3 of the Code of Civil Procedure. The ratio of that decision proceeded on the basis that the action o a Probate Court was in the nature of a proceeding in rem and so long as the order remained in force, it was conclusive on the due execution and the validity of the Will, not only upon all the parties who might be before the Court, but also upon all other persons Whatever, in all proceedings arising out of the Will or claims under or in connection therewith. The argument that the effect of the appeal was to reopen the whole matter in controversy as to whether the application for probate should be granted or refused apparently did not find favour with the court. The previous case of Kamal Kumari Devi v. Narendra Nath Mukharji, reported in 9 Cal LJ 19 has inspired apparently the present practice of this court. This was the decision of Woodroffe, J. sitting with Cox, J. Dealing with the argument that there could be no agreement to take out probate in an amended form and that probate could not be granted by consent of parties only and that any compromise which excluded evidence of a Will was unlawful, Woodroffe, J. at Page 29 of that Report observed:
'It is of course obvious that there can be no such thing as 'amended probate'. Either the Will of the testator is proved or it is not. If proved, what is proved are the provisions of the Will. Further there must be proof of the Wilt before probate is granted. The mere consent of parties without evidence in support of the Will and which satisfies the court of its due execution is insufficient. In the present case no such question arises for admittedly evidence was given before the Probate Court which satisfied in that both the Will and Codicil were duty executed.
Owing to an erroneous view of the law the parties expressed their intentions in an irregular form. There could be no 'amended probate' as stated in the ekramamah but when a testamentary instrument is propounded and a ca(sic)eat against the grant is entered, it is common practice that opposition to the grant should be withdrawn upon terms. Upon this being done, the promovent proceeds to prove the Will unless probate has already been granted in common form. In such a case and according to the practice on the Original Side of the Court the caveat is discharged and the grant made. Such an order is alone within the scope of the suit. But if a settlement has been arrived at under which opposition has been withdrawn, it is recited in the decree that the parties have agreed to terms of settlement and it is ordered that such terms be recorded. The terms are then recorded in a schedule annexed to the decree. Such terms when as they ordinarily are beyond the scope of the suit are not the subject matter of the decree, and if not carried
out, must be enforced by separate suit.
It is argued that in any case no settlement can be arrived at which has the effect of in any way interfering with the disposition of the testamentary instrument of which probate is sought. But in my opinion this is not so. Neither the court nor the parties can make for the testator any Will other than that which he has executed. When however all the parties beneficially interested under that Will consent they can agree to dispose of the estate in a particular manner when it reaches their hands. In that case they are really dealing with their own property. Such an agreement may ho given effect to either by a redistribution by and amongst themselves after the executor shall have made over the property in terms of the Will or without waiting for such a distribution in conformity with the Will by a direction given by all beneficially interested to the executor to give direct effect to the agreement which the parties have arrived at as to the disposition of the properties given to them by the Will.'
Finally, Woodroffe, J. at page 30 suggested the procedure in this way:
'The regular way to effect this was to obtain probate and letters of administration in terms of the Will and to merely record the agreement which if not given effect to would have been enforceable by a separate Suit. Had this been done there would have been nothing illegal in it.'
Woodroffe, J. started blessing the procedure as suggested. In course of time it became cursus curiae. In Secretary of State for India in Council v. Sm. Parijat Debi , Judicial Committee appears to have sanctified the same procedure. It is difficult to find what exactly is sanctified by the Privy Council, but it is taken generally that this procedure suggested by Woodroffe, J. was the procedure which was approved by the Privy Council. Sir Lancelot Sanderson delivering judgment of the Privy Council at p. 72 (of Ind App): (at p. 207 of AIR) said:
'Woodroffe, J. in the course of his judgment (9 Cal LJ 19) referred to the practice on the Original Side of the High Court, in a case where probate is granted and terms of settlement are recorded in a schedule annexed to the decree, and said that 'such terms when they ordinarily are beyond the scope of the suit are not the Subject-matter of the decree and if not carried out must be enforced by separate suit'. No doubt that is quite correct, and if this case were a claim by one party to the agreement of March 3, 1928, against another, on the ground that the terms had not been carried out, it would properly be the subject of a separate suit.'
31. Looking at this reference of the Privy Council to the case of Kamal Kumari, 9 Cal LJ 19 what was said to be the correct procedure was the procedure of filing a suit in respect of terms of settlement covering extraneous matters, but it has been understood in a wider sense as approving the procedure of recording in a schedule of the decree the terms of settlement disposing of the property of the testator whose Will for probate has been independently considered by the court. The reason why I say that it was so understood will appear from the two subsequent decisions of this court in Gouri Sankar Dutta v. Sm. Hari Bhabini Dutta, 41 Cal WN 858 (850) and Jagadish Chandra v. Upendra Chandra, 48 Cal WN 294 (300). Reference may also be made to the observations of Jenkins, C. J. in Surja Prasad Sukul v. Shyama Sundari Debi, 14 Cal Cal WN 967, where the learned Chief Justice upheld the validity of a compromise filed in this manner in a subsequent proceeding and which was enforced by a separate suit.
32. The difficulty on this branch even in the English procedure was clearly pointed out by Younger, J, in In re King, Jackson v. Attorney-General, (1917) 2 Ch D 420 where at page 432 the learned Judge very pertinently observed:
'This is not the first time in which this court, as the court of administration,' has found is difficult to work out compromises of probate proceedings entered into without full regard to the interests of absent parties. I hope that the fact that this difficulty has not in the present case, even as regards the individual legatees, materialised will be no encouragement to increase the number, already large enough, of such arrangements.'
33. Having regard to this uniform practice we do not wish to deviate from it in the present case so far as the terms of settlement are concerned. We follow the procedure adopted by Woodroffe, J. and direct that the probate be granted of this Will and these terms of settlement be recorded with the decree in a separate schedule.
34. The petitioner is entitled to costs both of this appeal and of the court below out of the estate, as between attorney and client. There will be no order for costs so far as the respondents are concerned. But this order for costs is without prejudice to any agreement that may have been arrived at between the parties.
35. We certify the case as fit for the appointment of two counsel.
36. Let the decree be drawn up expeditiously.
37. I agree.