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Sarojini Das Vs. Haridas Ghosh-defendant - Court Judgment

LegalCrystal Citation
Decided On
Reported inAIR1922Cal12,66Ind.Cas.774
AppellantSarojini Das
RespondentHaridas Ghosh-defendant
Cases ReferredRobson v. Rocke
will-standard of proof - suspicion-- consideration and analysis of positive evidence on record--proof of handwriting--comparison of signatures, value of. - .....ghosesatish nitai ranibala kalibala prabhasinichandra chandra m. nagen- m, krish- m. satyes- ghose, ghose. dra nath na chandra war pal.died 1906 pal, ghose. widow sarojini,(propounder)anil chandraghose.2. the case for the appellant is that, three days before her death, rajanimani made a testamentary disposition of her properties. on the 20th august 1917 an application for probate was lodged in the court of the district delegate by the present appellant, sarojini, the widowed daughter in law of the deceased, but it was returned as objection was filed. an application for letters of administration with a copy of the will annexed was consequently presented to the district judge on the lath october 1917, objection was thereupon lodged on the 22ud january 1918 by the respondent, haridas.....

Asutosh Mookerjee, J.

1. The subject matter of the litigation which has resulted in this appeal is the estate left by one Rajanimani alias Rajanibala Dasi, a Hindu lady, who died on the 21st March 1917. She left a son Nitai, a grandson Anil, by a predeceased son, and three married daughters. The relationship of the several members of the family is indicated on the following genealogical table:



Satish Nitai Ranibala Kalibala Prabhasini

Chandra Chandra M. Nagen- M, Krish- M. Satyes-

Ghose, Ghose. dra Nath na Chandra war Pal.

died 1906 Pal, Ghose.




Anil Chandra


2. The case for the appellant is that, three days before her death, Rajanimani made a testamentary disposition of her properties. On the 20th August 1917 an application for Probate was lodged in the Court of the District Delegate by the present appellant, Sarojini, the widowed daughter in law of the deceased, but it was returned as objection was filed. An application for Letters of Administration with a copy of the Will annexed was consequently presented to the District Judge on the lath October 1917, Objection was thereupon lodged on the 22ud January 1918 by the respondent, Haridas Ghose, on the allegation that he had, on the 28th May 1917, acquired title to the estate left by Rajanimani, by purchase from her son, Nitai Chandra Ghose, who had seceded thereto as the heir-at-law. Thus emerged the question in controversy between the parties, namely, whether the Will alleged to have been executed by Rajanimani on the 18th March 1917 is or is not genuine. The District Judge has come to the conclusion that the Will propounded was not duly executed, On the present appeal the correctness of this view has been impeached on behalf of the profounder.

3. The preamble to the Will recites that the testatrix had been in failing health for some time and had come to the residence of his second son-in law, Krishna Chandra Ghose, at Baranagore, in the northern suburbs of Calcutta. The first clause enumerates the relations of the testatrix as set out in the genealogical table. The second clause states that her surviving son, Nitai Chandra Ghose, had taken to evil ways and that she had consequently decided not to leave him any portion of her estate; but that if he left any son or sons of good character, the said grandson or grandsons would, after attainment of majority, be competent to possess and enjoy the property according to the terms of the Will. The third clause gives a description of her properties, namely, two houses in Calcutta, one purchased with her own money, the other obtained by virtue of a deed of gift from her mother-in-law. The fourth clause provides for maintenance allowance to an aunt-in law dependent upon her. The fifth Clause gives a monthly allowance to her son Nitai, her grandson Anil and to her three married daughters. The sixth Clause provides for the performance of her Sradh from the sale proceeds of her ornaments, the surplus to be taken by her son Nitai. The seventh Clause gives one-half of her property to her grandson Anil and the other half to the son or sons that might be born of the loins of her son Nitai. The eighth paragraph makes the various sums payable as maintenance a charge on the estate. The ninth Clause contains miscellaneous directions. There can be little doubt that the primary object of the testatrix was to keep her property out of the hands of her son who had taken to drink and women at an early age, and had in 1912 become involved in a shooting ease.

4. There are six attesting witnesses to the Will including the scribe. All of them have been examined. The evidence of Baba Jyotish Chandra Hazra, a Vakil of this Count, who is related to the family and was consulted by the lady as to a possible testamentary disposition, has also been recorded. The District Judge has stated that he believed in full the evidence of Baba Jyotish Chandra Harza That evidence shows that the lady Bent for him and requested him to draft a Will, so that Nitai might not be able to destroy the estate She said that she had two houses in Calcutta and that she wished to leave one-half to the son of his predeceased son and the other half to the son of Nitai, if one should be born. She also desired to provide small monthly annuities for her aunt and her married daughters. Jyotish Baba thereupon told the lady that such a Will, leaving something to an unborn person, was not possible but that as the law might soon be altered by a Bill already introduced into the Council, she could make the Will she desired after the law had been changed. This Bill, as we know, was passed on the 28th September 1916, and was placed on the Statute Book as Act XV of 1916. Jyotish Baba further stated that he met Krishna Chandra Ghose the son-in-law of the lady, after the law had bean altered, and told him to inform her that she could then maze the Will she wanted, Sometime afterwards, Krishna Chandra came to the house of Jyotish Baba at Bhowanipur, told him that the lady was very ill at Baranagore and requested him to draft a Will, Jyotish Baba told Krishna Chandra that he was occupied with examination work and could not afford time to see the lady for the next ten or fifteen days, Upon this evidence strengthened by that of Dr. Gokul Chandra Dhar, there is no room for doubt that, before September 1916, the lady had intended to make a testamentary disposition of her properties so as to exclude her son from the inheritance, and that she retained such intention as late as the end of February or the beginning of Marsh 1917 after she had removed from her residence in British Chandranagore to the house of her second son in law at Baranagore. The question has accordingly to be faced, whether she did in fast carry out her intention by means of the document under consideration, Her son-in law, Krishna Chandra Ghose, who holds an important position in a mercantile firm and who takes no benefit under the Will, unless, indeed, the annuity of Rs. 2 a month in favour of his wife can be regarded as such, has been examined and cross-examined at considerable length. He corroborates the narrative of Baba Jyotish Chandra Hazra in every material particular, and adds that his mother-in-law had repeatedly expressed a wish to make a Will in view of the conduct and character of her son Nitai. On the refusal of Jyotish Baba, he went to Narayan Chandra Chatterjee, a Pleader of Baranagore, now dead, who expressed his inability to come on the Sunday, on which the Will was made. Thereupon, a neighhour, Adhar Chandra Ghose, a trader in rice, offered to secure the services of a deed-writer, Nanda Lal Das, who was known to him. Krishna Chandra accordingly took Nanda Lai to his mother in-law who gave him instructions about the provisions to be inserted in the Will. Nanda Lal thereupon prepared a draft, which has been produced in these proceedings. It was read over to Rajanimani, and, after she had expressed her approval, Nanda Lal made a fair copy. At this juncture, Rashbihari Mookerjee, the physician who attended upon Rajanimani, same to see her, and, as was quite natural, he was requested to stay and attest the Will. Krishna Chandra also asked a neighbour, Saileswar Sanyal, a trader, to come and attest the Will. It no happened that Jitendra Nath Upadhyay, a Pleader of the Alipore Bar, had just at that time come to Saileswar Sanyal to collect some money due to his brother. Krishna Chandra, seeing him present, and learning that he was a Pleader, pressed him to come and be an attesting witness. The Will was subsequently executed by the lady, and was attested by Nanda Lal Das, the scribe, Krishna Chandra Ghose, the son-in law of the testatrix, Adhar Chandra Ghose, a local trader, (sic)Rasbhihari Mookerjee, the physician, Saileswar Sanyal, a neighbour and a trader, and Jitendra Nath Upadbyay, the Pleader. These persons have come forward to pledge their oath that the Will was executed by the lady and was duly attested by them. They are persons of respectability, and no hypothesis has been put forward, except the innate perversity of human nature, to explain why they should all conspire to forge the Will, and to perjure themselves in Court. The version given by them in examination in-chief has not been affected by cross-examination; on the other hand, their statements are free from material contradictions, and their narratives have the ring of truth about them. These statements are further supported by Sarojini, the widowed daughter-in-law of the testatrix, who was in the room where the document was executed; she was subjected to a severe and prolonged cross examination, but with no effect. This mass of testimony has, however, been summarily brushed aside by the District Judge on grounds of suspicion for which no foundation has been laid in the evidence. No doubt, as stated by Lord Davey in Tyrrell v. Painton (1894) P. 151 at P. 109 : 6 R. 540 : 70 L. T. 453 : 42 W. R. 343. wherever a Will is prepared under circumstances which raise a well grounded suspicion that it does not express the mind of the testator, the Court ought not to pronounce in fevour of it unless the suspicion is removed. But, as was explained by Jenkins, C. J., in Gopesur Dutt v. Bissessur Dutt 38 Ind. Cas. 577 : 39 C, 245 : 16 C. W. N. 265 this suspicion must be one inherent in the transaction itself, and not the doubt that may arise from a conflict of testimony which becomes apparent on an investigation of the transition. The reasons assigned by the District Judge for his refusal to act upon the testimony of some, at any rate, of the witnesses examined in this case indicate, however, that he has approached the evidence from an entirely erroneous standpoint. Thus, with regard to Nanda Lal Das, the scribe, he notes that he was procured from Serampore, across the river, and adds that as he bag been a Pleader's clerk' and writes for people frequenting Courts and Registration Offices, he is a likely hand to be chosen for getting up a deed. There is no foundation laid in the evidence for the imputation thus made against professional deed-writers in general. He next dismisses the evidence of the Doctor Rashbihari Mookerjee with the remark that he does not pay income tax and was prosecuted in a forgery case. This comment is based apparently on a statement made by the witness in the following terms: 'there was a criminal case against ma for forging a currency-note ; there were fourteen accused in the case ; only one Phani Bhushan Pan was convicted ; all the others including myself were acquitted in the Sessions Court; that was seven or eight years ago.' The District Judge thus overlooks the elementary principle that where there has been an acquittal, the aquittal is conclusive; as Jenkins, C. J., observed in Emperor v, Noni Gopal 10 Ind. Cas. 582 : 15 C. W. N. 593 : 38 C. 559 : 12 Cr. L. J. 286. on the authority of the decision in Rex. v. Plummer (1902) 2 K. B. 339 : 71 L. J. K. B. 805 : 66 J. P. 647:86 L. T. 836 : 18 T. L. R. 659 : 51 W. R. 137 : 20 Cox. C. C 243. it would be a very dangerous principle to adopt to regard a judgment of not guilty as not fully establishing the innocence of the person to whom it relates. Again, Saileswar Sanyal is discredited because he is a neighbour, while Jitendra Nath Upadhyay is not relied en because he is a chance witness from a distance. The District Judge, however, concedes that the evidence of all these witnesses could be accepted if the Will had been executed in the natural way and publicity given to it, though he does not state how the execution was unnatural and how seamy could have been intended when at least half a dozen strangers were present in the assembly. The District Judge next proceeds to make the general observation that it must be acknowledged that there is no great reluctance in our country in getting up a deed of this kind. There is no trace of evidence in the record to support this remark with regard to the people either of the province in general or of the localities where the lady resided or the Will was executed. The Judge then proceeds to rely upon a statement made by Baba Jyotish Chandra Hazra in cross examination to the effect that Kanty Chandra Ghose and Kailash Chandra Ghose, two members of the Ghose family of Chandranagore, had propounded a Will alleged to have been executed by Trailokya Nath Ghose brother of Kanty Chandra Ghose, that Probate of the Will was re fused by the Trial Court, and that during the (sic)pendency of an appeal in this Court the matters in difference were settled by a deed of release dated the 9th March 1916. It is difficult to se9 how this statement is relevant to the present pro. ceedings and how it can be admissible in evidence. The recitals in the deed of release are plainly inadmissible, and the document was introduced into evidence for an entirely different purpose, namely as containing the signature of Rajanibala who had acted as the guardian of her infant grandson, Anil Chandra, in the transaction. The District Judge plainly should not have allowed his judgment upon the question of the genuineness of the Will now in controversy to be affected in the remotest degree by what took place in connection with the alleged Will of Trailokya Nath Ghose. Moreover, his observation that the Will of Trailokya Nath was designed to cheat his daughters while the present Will is intended to save the estate from the effect of the conduct of a dissolute son can only be regarded as embodying a wholly misleading analogy. This is followed up by the entirely groundless imputation that a friendly neighbour (Saileswer Sanyal) and a young student (the Pleader Jitendra Nath Upadhyay) would not be averse to helping a minor. In view of these and other remarks made by the District Judge, we Bee no escape from the conclusion that the adverse opinion formed by him with regard to the Will in dispute is not based upon a consideration and analysis of the positive evidence on the record He has in fact adopted the method which has been more than once condemned by the Judicial Committee; Chotey Narain Singh v. Ratan Koer 22 I. A. 12 : 22 C. 519 : 6 Sar. P. C. J. 564 : 11 Ind. Dec. (N. S.) 346 (P. C.) and Jagrani Koer v. Burgs. Parshad (6) 22 Ind. Cas. 103 : 41 L. A. 76 : 36 A. 93 : 19 C. L. J. 165 : 16 O. C. 386 : 12 A. L. J. 125 : 26 M. L. J. 153 : 6 M. L. T. 125 : 11914) M. W. N. 137: 18 C. W. N. 521 : 16 Bom. L. R. 141 : 1 O. L. J. 57 (P. C.). As was observed by Lord Watson in the first of these gases, in order to prevail against such evidence as has been adduced, the improbability must be clear and cogent and must approach very nearly to, if it did not altogether constitute, an impossibility. This was emphasised by Lard Shaw in the second case, when he added that the objection that the witnesses might have been of a better class is at an end when execution and attestation are proved, A comment of this character has no force except upon something of a much higher level than mere suspicion, namely, proof which would thoroughly satisfy the mind of a Court that the witnesses had committed both forgery and perjury. 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. In view of all these circumstances, we cannot attach much weight to the opinion of the Trial Judge who had the advantage of seeing the witnesses and noticing their look and manner, as laid down by the Judicial Committee in Shama Charn Kundu v. Khettromoni Dasi 27 I. A 10 : 27. C. 521 : 2 Bom. L. R 568 : 4 C. W. N. 501 : 7 Sar. P. C. J. 638 : 14 Ind. Dec. (N. S.) 343. Shunmugaroya Mudaliar v. Manika Mudaliar 8 Ind. Cas. 799 : 36 I. A. 185 : 32 M, 400 : 10 C. L. 3. 276; H Bom. L. R. 1206 : 6 M. L. T. 301 : 19 M. L. J. 640 (P. C.). Bombay Cotton Manufacturing Co. v. Motilal 29 Ind. Cas. 229 : 42 I. A. 110 : 39 B. 386 : 21 C. L. J 5 8 : 19 C. W. N. 617 : 17 M. L. T. 408 : 28 M. L. J. 593 : 17 Bom. L. R. 455 : 2 L. W. 521; (1915) M. W. N. 788 P. C.). Reg. v. Bertrand (1 67) 1 P. C 520 at p. 535 : 4 Moore P. C. (n. s.) 460 : 36 L. J. P. C. 5 : 16 L. T. 752 : 16 W.R. 9 : 10 Cox C. C. 618 : 16 E. R. 391, and other decisions reviewed in Lalljee Mahomed v. Dadabhi Jivanji Guzdar 34 Ind. Cas. 807 : 43 C. 833 : 23 C. L. J, 190 : 20 C. W. N. 335. and Sureadra. Krishna Mondal v. Ranee Dassi 59 Ind. Cas, 814 : 47 C. 1048 : 33 C. L. J. 34 : 24 C. W. N. 860.

5. We may further observe that the evidence adduced by the propounded is practically unsontradicted. We have, on the other side, some evidence as to realisation of rent from the tenants of the houses after the death of the testatrix. On one occasion Nitai and Krishna jointly demanded rent; that was apparently to meet; the expenses of the Sradh ceremony. The tenant, however, did not pay the rent, and he continued to with hold it when he found there was a dispute as to the title. The only evidence worthy of notice adduced on the side of the caveator is the signature of the testatrix on the release. There may be a controversy as to whether the document was duly proved and received in evidence, but even if we assume that it was really executed by the lady, it does not assist the case of the caveator. The District Judge limited himself to the observation that the signature on the Will is firm and not like that of a pile and emaciated lady on the point of death. We have no evidence to show how much vitality the lady possessed three days before her death; but this much is plain that a comparison of the signature on the Will with that on the deed of release is not calculated to excite suspicion. In this connection, reference may be made to the exposition of the methods of proving handwriting given by Jenkins, C. J., in the case of Barindra Rumar v, Emperor 7 Ind Cas. 359 : 37 C. 467 at p. 502 : 14 C. W. N. 1114 : 11 Cr L. J 453. which was followed in Pulin Behary v. Emperor 16 Ind. Cas. 257 : 15 C. L. J, 517 at p, 590 : 16 C. W. N. 1105 : 13 Cr. L. J. 609. The ordinary methods of proving handwritings are: (i) by calling as a witness a person who wrote the document or saw it written, or who is qualified to express an opinion as to the handwriting by virtue of Section 47 of the Evidence Act; (ii) by a comparison of hand writing as provided in Section 73 of the Evidence Act; and (iii) by the admission of the person against whom the document is tendered, A document does not prove itself, nor is an unproved signature proof of its having been written by the person whose signature it purports to bear. In applying the provisions of Section 73 of the Evidence Act it is important not to lose sight of its exact terms. It does not sanction the comparison of any two documents, but requires that the writing with which the comparison is to be made, or the standard writing as it may be sailed, shall he admitted or proved to have been written by the person to whom it is attributed, and next the writing to be compared with the standard or, in other words, the disputed writing, must purport to have been written by the same person, that is to say, the writing itself must state or indicate that it was written by that person. The Section does not specifically state by whom the comparison may be made, though the second paragraph of the Section dealing with a related subject expressly provides by way of contrast that in that particular connection the Court may make the comparison. A comparison of hand writing is at all times as a mode of proof hazardous and inconclusive, and especially when it is made by one not conversant with the subject and without such guidance as might be derived from the arguments of Counsel and the evidence of experts. In Sreemutty (sic)Phooee Bibee v. Gobind Chunder Roy 22 W. R 272. it was said by the Court that 'a comparison of signature is a mode of ascertaining the truth which ought to be used with very great care and caution.' It is true that the opinions of experts on handwriting meet with their full share of disparagement at times, but at any rate there is this use in their employment, that the appearances on which they rely are disclosed, and can thus be supported or criticised, whereas an opinion formed by a Judge in the privacy of his own room is subject to no such check. And that the aid of an expert may be of value was clearly the opinion of so distinguished a Judge as Mr. Justice Black-burn, who in Reg. v. Harvey (1869) 11 Cox C, C. 546 at p. 548, refuted to allow a comparison to be made without the help of experts, A comparison of writings has consequently been deemed a mode of ascertaining the truth which ought to ha used with very great caution: Nobin Krishna v. (sic)Rassics Lall 10 C. 017 at p. 1051 : 5 Ind Dec. (n. s) 700. Kurallee Persaud Misr v. Anantaram Hajra 8 B L. R. 480 at p 502 : 16 W. R. 16 (P. C.) : 2 Sar. P. C. J. 695 : 2 Suth P. C. J. 454. specially if no skilled witness has been sailed to make the comparison; Reg v. (sic)Silverlock (1894) 2 Q. B 766 : 63 L. J. M, C. 233 : 10 R. 431 : 72 L. T. 298 : 43 W. R. 14 : 18 Cox C. C. 104 : 58 J. P. 788. Reg. v. Harvey (16), Doe d Mudd v. Suckermore (1836) 5 A. & E. 703 at p. 705 : 2 N. and P. 16 : 7 L. J. (n. s ) K. B. 38; W. W. and D. 405 : 111 E. R. 1331 : 44 R. R. 533. Ra endro Nath Holdar v Jogendro Nath Banerjee 14 W I A 67 : 7 B. L. R. 216 : 15 W. R. P C. 41 : 2 Suth. P. C. J. 422 : 2 Sar. P. C. J. 666 : 20 E. R. 711. Romesh Chunder Mukeri v. Rajani Kant Muherji 21 C. 1 : 17 Ind. Jur, 428, 6 Sar. P. C. J 340 : 10 Ind, Dec. (n. s.)633. We must further bear in mind that, although from the dissimilarity of signatures, a Court may legitimately draw the inference that a particular signature is not genuine because it varies from an admittedly genuine signature, yet, resemblance of two signatures affords no safe foundation that one of them is genuine. Now, it may be conceded that if two signatures are exactly identical, there is room for suspicion that the one in question may he a copy or careful imitation of the genuine signature. It is a fact well-known and may be readily verified that no two signatures, actually written in the ordinary course of writing them, are precisely alike. The character of a person's signature is generally of uniform appearance, and the resemblance between one and another signature of the same person is thus apparent, but the Coincidence is seldom known where a genuine signature of a person superposed over another genuine signature of the same person is such a fac-simile that one is a perfect match to the other in every respect. There is generally diversity in the marks of the pen, the size of the letter, the level of the signature and the space it occupies, that stands as a guard over the genuine signature and characterises it as the true signature. But, as was observed by Coleridge, J. in Doed. Mudd v. Suckormore (20), the test of genuineness ought to be the resemblance, not to the formation of the letters in some other specimen or specimens, but to the general character of writing, which is impressed on it as the involuntary and unconscious result of constitution, habit, or other permanent cause, and is, therefore, itself permanent ' Again, as Sir J. Nicholl said in Robson v. Rocke (1824) 2 Add. 53 at pp. 80, 81 : 162 E. R. 2l5. 'the best, usually perhaps, the only proper, evidence of handwriting is that of persons who have acquired a previous knowledge of the party's handwriting from seeing him write, and who form their opinion from the general character and manner of this, and not from criticising particular letters.' I have compared the two signatures, and the impression left upon my mind by their prevailing character is that they are signatures of the same person, although on one document she signs her name as Rajanibala and in the other as Rajanimani. Bat, notwithstanding this general correspondence of the signatures, justifying a reasonable inference that they were made by the same person, I do not desire to base my conclusion upon the similarity of the signatures, because, as has been well-observed, it is not difficult to Jorge the handwriting of almost any person so that it may be impossible for even the most acute and experienced Judge to discriminate between ,the false and the true. Besides, gush reliance upon similarity of signatures is unnecessary in the present case at there is, in my opinion, a mass of direst and circumstantial evidence which points unmistakably to the genuineness of the Will, After an examination of that evidence and a consideration of the criticisms thereon by the District Judge and by Counsel for the respondent in this Court, I feel no doubt that the Will was duly executed and attested by the testatrix. I may add that it is not necessary here to consider what may be the legal effect of the grant of Probate upon the title set up by the caveator.

6. The result is, that the appeal must be allowed, the decree of the District Judge set aside and the application for Letters of Administration with copy of the Will annexed granted to the appellant with costs m both Conrts.


7. I agree.

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