Lawrence Jenkins, C.J.
1. This appeal arises out of an application for Probate of an instrument bearing date the 13th Ashar 1316, or the 27th of June, 1909, and purporting to be the Will of Gopessur Dntt and to bear his signature.
2. Two questions arise: First, whether the signature to the instrument is that of Gopessuar Dutt, and, secondly, in case it is his signature, whether, when he placed it there, he was of sound mind.
3. Ghitty, J., has decided against the Will on grounds which I will later discuss, and from his judgment the present appeal has been preferred.
4. Gopessur Dutt died in the early hours of the 28th of June 1909 at the age of 36 or thereabouts. He left a widow, the appellant Sreematy Jarat Kumari Dassi, who seeks to propound the instrument in dispute. There was one daughter who died in infancy, but apart from this there was no child of the marriage. Gopessur was one of three brothers, the other two, both younger than he, being Bissessur, the caveator and respondent, and Parmessur.
5. It is admitted by Counsel for the respondent, and is clear from the evidence, that Gopessuar and Bissessur were not on terms of friendship. The relations between Gopessur and Parmessur, however, were good; for some time after they parted from Bissessur they lived together in the garden house that had been allotted to them on partition; and though, shortly before his death, Parmessur had parted in mess and was building himself a separate house, this did not indicate any serious estrangement between these two brothers. Parmessur died in the autumn of 1908, and a month after his death his widow gave birth to a little boy, to whom Gopessuar seems not unnaturally to have been attached. Gopessuar fell ill in March, 1909, and, while there may have been temporary periods of improvement, he was never restored to health, though he passed through the hands of many and variously qualified medical attendants. At first his trouble seems to have been appendicitis, later dysentery supervened, and he ultimately died of bowel trouble. His earliest attendant was Dr. Chatterjee, the family physician, who also brought in for consultation three doctors of repute, but they do not seem to have satisfied the patient, for in May he placed himself under the homoeopathic treatment of Dr. P.C. Mazumdar, a practitioner of good repute and standing. Shortly after this, Dr. P.C. Mazumdar, on leaving Calcutta, placed Gopessuar under the treatment of his son, Dr. J.N. Mazumdar, and so things went on for come time.
6. Then Gopessuar consulted a Kabiraj, but as dysentery appeared on or about the 18th of June, Dr. J.N. Mazumdar was again summoned, and he attended him up to his death.
7. On the 20th and 21st of June, Dr. D.N. Roy was called in for consultation, and here seems to have been a slight improvement in the patient's condition till the 25th when he was not so well. On the 26th he was seen both by Dr. P.C. Mazumdar, who had returned to Calcutta, and by Dr. J.N. Mazumdar. On the Sunday morning they both saw him. On the evening of Sunday, the 27th Dr. P.C. Mazumdar visited him about 5 or 5-30. Shortly after this, about 8 or 8--30 o'clock, Gopessur is alleged to have executed the Will now propounded. Then he is said to have slept, but the pain becoming intense, Dr. J.N. Mazumdar was sent for. He was, however, unable to come, and in his palce Dr. Gosswami visited the patient, and remained with him until his death, about 1 or 2 o'clock on the morning of the 28th. The same day the cremation took place, and on return from it, the widow, according to her evidence, handed over to her brother, Shambhu Nath Sen, the Will and certain drafts, which had been entrusted to her by her husband, and on the 29th in the morning they were delivered by him to Mr. Rutter, the family attorney, whose assistant he was.
8. On the 11th August, 1909, the widow filed her petition for Probate through Mr. Rutter. Bissessur, however, entered a caveat and on the 20th of August he affirmed an affidavit in its support.
9. In the 5th paragraph of the affidavit he said: That I have no personal knowledge as to whether the said alleged Will is the last Will of the said deceased or as to whether it was duly and properly or at all executed by the said deceased or duly and properly attested as required by law, and if it was executed by the said deceased under what circumstance it was done, and whether the said deceased was in a disposable frame of mind and body, but, as far as I have been able to ascertain from inquiries made, so far 1 verily believe that the said alleged Will of the said deceased, dated 27tb June 1909, is not and cannot be the Will of the said deceased.'
10. The proceedings then took the form of a regular suit; witnesses were examined on commission and in Court, and after a prolonged hearing of 24 days the case terminated adversely to the applicant.
11. I must here digress for a moment to express my disapproval of the way in which this litigation was needlessly prolonged, notwithstanding the endeavours of the learned Judge to keep those who appeared before him within proper limits.
12. The caveator's grounds of objection I have read, but, notwithstanding the restrained and even languid terms in which they were formulated, the contest has been conducted with unusual bitterness.
13. Thus, the cross-examination of the petitioner on commission covers upwards of 80 printed pages, the cross-examination of other witnesses occupies in one case upwards of 40 printed pages, in another 17, in another upwards of 20, in another upwards of 50, and in another 19.
14. I have read through the whole of this cross-examination and I can find no justification for its length. Then there is another matter to which I would allude, as it is not without its bearing on the case.
15. The hearing began, but was not completed, before the Xmas vacation of 1909. Before the vacation the petitioner had called all her witnesses and she was described by the Judge as having closed her case. The cross-examination of the last of her witnesses was almost at a close, arid indeed so nearly at an end did it seem to the Judge that when the cross-examination had to be postponed on account of the witness's illness, the learned Judge proposed to Counsel for the caveator that he should in the interest of expedition open his case. The suggestion was scouted, and was even met with a threat on the part of Counsel which might as well have been left unuttered. And so the cross-examination of this witness was taken up on the reopening of the Courts. But in the interval much had happened; fresh Counsel had been retained for the caveator, and two of the petitioner's servants had been won over to the caveator's side under circumstances to which I will later allude. And when the cross-examination was taken up, in place of the few questions that the learned Judge had anticipated, the cross-examination was pursued through three more days. Not only that, but an application was made on behalf of the caveator with a hardihood little short of astounding to have the petitioner's witnesses re-called, including even the petitioner herself whose previous cross-examination had been dragged out to the length I have described. The learned Judge rightly refused this application, but the judgment states, as the record shows, that, on the day when fresh Counsel appeared for the caveator, his case assumed an entirely fresh complexion. Now the case made was left in no donbt; the Will was denounced as a forgery. Babu Shambhu Nath Sen, an attorney of this Court of some years' standing, was said to have forged Gopessur's signature, and the petitioner herself to have been a party to and have had a hand in the forgery. And yet when the case first came before Chitty, J., he could get no definite reply when he made the very reasonable inquiry what the caveator's case really was, and when the learned Judge specifically inquired whether a charge of forgery was made, the boldest reply he' could elicit was: 'it amounts to that.' When Counsel for the caveator rose to present his client's case before this Court I thought it right to ascertain what his case really was, but the diffidence of December had to some extent re-asserted itself. Ultimately the following statements were made by Counsel and were duly recorded: 'I give up the allegation that the signature was forged by Shambhu Nath.' I say the date plaosd balow Gopessur is in Jarat's handwriting; but I don't know when or whether she knew Gopessur had not written his name.' 'I say Shambhu Nath was a party to forging this Will. I make a charge of forgery against Shambhu Nath and the petitioner.'
16. I propose here to examine the judgment under appeal. The key to the decision is, I think, this: there are a number of circumstances which in the opinion of the learned Judge create suspicion: the occasion for suspicion has not been removed: therefore, the Will has not been proved.
17. In so handling the case the learned Judge professed to be guided by Tyrrell v. Painton (1394) P. 151. 159 : 6 K. 540 : 70 L.T. 453 : 42 W.R. 343. As I understand that decision, it laid down no new principle, but it merely applied a well-established principle to an exceptional set of circumstances. That principle was enunciated in Barry v. Butlin (183S) 2 Moore P.C. 480 : 4 S.E.C. (O.S.) 175 where it was said, 'the rules of law according to which cases of this nature are to be decided do not admit of any dispute so far as they are necessary to the determination of the present appeal, and they have been acquiesced in on both sides. These rules are two: The first, that the onus probandi lies in every case upon the party propounding a Will, and he must satisfy the conscience of the Court that the instrument so propounded is the last Will of a free and capable testator. The second is, that if a party writes or prepares a Will under which he takes a benefit, that is a circumstance that ought generally to excite the suspicion of the Court, and calls upon it to be vigilant and jealous in examining the evidence in support of the instrument, in favour of which it ought not to pronounce unless the suspicion is removed, and it is judicially satisfied that the paper propounded does ex-press the true Will of the deceased.'
18. The effect of this decision is tersely stated by LDrd Davey, as he afterwards became, in Tyrrel v. Painton (1394) P. 151. 159 : 6 K. 540 :70 L.T. 453 : 42 W.R. 343 where he said, 'The principle is that 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 favour of it unless the suspcion is removed.'
19. The suspicion to which allusion is made must, I think, be one inherent in the transaction itself, and not the doubt that may arise from a conflict of testmony which becomes apparent on an investigation of the transaction.
20. Now, while I willingly concede the value to us of these decisions, it must not be forgotten that the law is said down for us in clear and imperative terms by Acts of the Indian Legislature, and it is by the provisions of those Acts that we must be guided. Gopessur was a Hindu, and the law applicable to any Will alleged to have been executed by him is to be found in the Hindu Wills Act which incorporates the Sections of the Succession Act to which I will refer.
21. By Section 48 of the Succession Act it is provided that every person of sound mind and not a minor may dispose of his property by Will. In Explanation 4 to this Section it is said that no person can make a Will while he is in such a state of mind, whether arising from drunkenness, or from illness, or from any other cause, that he does not know what he is doing. A light is thrown on the meaning of the Section by the illustrations appended to it.
22. By Section 48 it is provided that a Will or any part of a Will the making of which has been caused by fraud or coercion or by such importunity as takes away the free agency of the testator is void.
23. Section 50 prescribes the rules for the execution of unprivileged Wills and enjoins (among other things) that the testator shall sign the Will; that his signature shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a Will, and that it shall be attested by two or more witnesses.
24. So much, then, for the conditions necessary for a valid Will. Next we have to see how the existence of those conditions is to be established. For this I turn to the Evidence Act which declares by Section 3 that a fact is said to be proved when, after considering the matters before it, the Court either believes it to exist or considers its existence so probable that a prudent man ought under the circumstances of the particular case to act upon the supposition that it exists. The disproof of a fact is similarly treated. It appears to me that the learned Judge has required a higher standard of proof than the law prescribes. Thus, at one place, he says, 'but even so it cannot be said that there is no doubt regarding Gopessur's possession of the requisite mental activity at the point of time in question:' again, in discussing the signature on the Will, he says, 'it is, therefore, impossible to express a decided opinion on this point:' and he ultimately formulates his attitude towards the problem before him in these words: 'The question is,--is the evidence of the witnesses whom she has called to support her case so unimpeachable, so absolutely trustworthy in itself, as by its own merits to dispose of all objections and allay all doubt and suspicion?' But the materials on which Courts have to pronounce are necessarily imperfect: for, apart from the inherent uncertainty of human affairs, the presentment of them to a tribunal is ordinarily the outcome of faulty observation, defective memory, inaccurate description and natural bias, and even that is blurred here by the intervention of interpretation.
25. Demonstration or a conclusion at all points logical cannot be expected nor can a degree of certainty be demanded of which the matter under investigation is not reasonably capable. Accepting the external test which experience commends, the Evidence Act, in conformity with the general tendency of the day, adopted the requirements of the prudent man as an appropriate concrete standard by which to measure proof.
26. The Evidence Act is at the same time expressed in terms which allow full effect to be given to circumstances or conditions of probability or improbability, so that where, as in this case, forgery comes in question in a civil suit, the presumption against misconduct is not without its due weight as a circumstance of improbability, though the standard of proof to the exclusion of all reasonble doubt required in a criminal case may not be applicable Cf. per Willes, J., in Cooper v. Slade 6 H.L. Cas. 746 (1858) : 27 L.J.Q.B. 449 : 4 Jar. (N.S.) 791 : 6 W.R. 461 and Doe d Devine v. Wilson 10 Moore P.C. 502 at p. 331 (1855).
27. I have dealt with this topic in some detail as, at the first blush, it would almost appear as though we were asked to dissent from the learned Judge's appreciation of the evidence, and that I should hesitate to do in the absence of very strong circumstances justifying such a course. What we have to see in this case is whether, after considering the matters before us, the Court ought to believe the two main facts alleged by the petitioner, or to consider them so probable that a prudent man ought, in the circumstances of this particular case, to act upon the supposition that they are true. These two facts alleged are, first, that Gopessur was of sound mind at the time of the alleged execution of his Will, and secondly, that he in fact duly executed his Will.
28. First, I will deal with the problem whether he was mentally capable of making the Will propounded, bearing in mind that for this purpose it is on the petitioner to establish affirmatively that he was at or about 8 or 8-30 on the evening of the 27th of June 1909 of sound mind and not in such a state of mind from illness or any other cause that he did not know what he was doing (Section 46 of the Indian Succession Act), If the story of the preparation of the Will be accepted, a lower standard of capacity would be requisite Perera v. Perera (1901) A.C. 354 : 84 L.T. 371 : 70 L.J.P.C. 46 still I propose to discuss the evidence in the first place without reference to the view that Gopessur had a prior knowledge of the contents of the alleged Will.
29. Now the evidence on the part of the petitioner consists of the testimony of the three doctors who were in actual attendance on Gopessur, the two attesting witnesses, Gopessur's Sircar and the petitioner. To this is opposed the evidence of the caveator, his nephew Gora Chand Mullick, two servants, who were in Gopessur's service but left in the course of this suit in circumstances which invite comment, and a doctor who never saw the deceased.
30. Now I take first the three medical men who attended the deceased, Dr. P.C. Mazumdar, Dr. J.N. Mazumdar and Dr. Section N. Goswami. Not a word has been said against the probity of these three gentlemen, nor has it been suggested that they have any bias in favour of the petitioner.
31. Indeed, it ultimately came out in the course of the evidence that prior to their giving evidence, all three had been approached from the caveator's side, and it was contended that it must have become known to him or his legal advisers what they were prepared to say, and this has been made a matter of comment by Counsel for the petitioner, in view of the serious charge of forgery involved.
32. Dr. P.C. Mazumdar is a well-known doctor in Calcutta, and he attended Gopessur in the early part of his illness ; he then went to Darjeeling, and he renewed his attendance on Saturday, the 26th of June, 1909, On that day he saw him once at 3 P.M. and on the following day, Sunday, he saw him twice, at 9 A.M. and 6 P.M. These times are no doubt approximate, but they are sufficiently accurate for the purpose in hand.
33. On both days he found Gopessur very weak, but the declares that 'Gopessur's brain was in no way affected by the disease.' On the Sunday evening, he says, the patient was a little better as regards his stools
34. Then he says (pp. 197 and 198 of the paper-book): 'I was with him 5 or 6 minutes on Sunday evening. I spoke to hira, questioned him about his condition. He gave answers. The answers were intelligent answers.' 'After seeing him I left the room and went downstairs. Some one accompanied me, Shambhu and one of the servants. That is Shambhu there; Prannath was the servant. I had a conversation with these two. They asked me about the state of the patient. Then I said the condition of the patient was very serious and they asked me also whether they can make a Will, They wanted to make a Will, Shambhu was asking me whether they could make a Will. Whether the patient is to make a Will. I said yes he can. You can make a Will. English is not my tongue.'
They inquired if the patient could then make a Will. I said he could. Nothing further was said.
In my opinion his mental condition was such that he could make a Will then. I say so from what I had observed immediately before.
I think I told them that the patient might survive 2 or 3 days, That is my opinion.
35. In cross-examination not a question was put to this witness as to Gopessur's mental condition. This, however, was elicited, first, that he did not tell the patient or his friends there was any immediate danger of his dying that night, and secondly, that the patient was sitting up some time and lying down also.
36. Dr. J.N. Mazumdar saw even more of Gopessur, for he was in daily attendance from June the 19th to the 27th. He describes him as very much more prostrate than on the previous occasions when he had attended him. He says (page 201 of the paper book):
For a few days from the 19th he seemed to improve. Then he began to get worse and worse.
On the 25th he was not so well. Up to the 25th he appeared to be getting better. On the 26th he was worse and on the 27th he was very bad. On the 27th I think I saw him in the morning. I went with my father and had a talk with Gopessur. His mind was quite clear. During this week I did not notice his mind getting cloudy, not that I know of. I was sent for about midnight of the 27th, I could not go. I told him to take Doctor Goswami.
37. In the cross-examination of this witness, too, there is a similar reticence on the question of his mental capacity.
38. The third of the medical men, Dr. Section N. Goswami, only saw Gopessur once; that was about midnight of the 27th, and he remained with him to his death.
38. His description is as follows (page 199 of the paper-book): He was lying in his bed suffering very much. I found it is from old dysentery he is suffering. I spoke to him. He answered. He was conscious, He gave me intelligent answers. He told me what he was suffering from. I asked him what was troubling him. He said he was suffering from an intense pain in the abdominal region. He said all he wanted me to do was to relieve that pain. I told him I would try my best to do so. I gave him medicine. It did not relieve him. He wanted to smoke once. He said he wanted hooka. I said, no, you can't have hooka now. I gave him medicine 2 or 3 times. I was there some time. He was complaining of his troubles generally. I can't remember particularly what he said.'
I was there when he died.
I remaind with him till he died. It was about an hour after I went there or more.
At first his mind was clear, but was falling off very fast. He became unconscious before he died. I can't exactly say how long, about half an hour or so.
39. Here, too, there was no cross-examination as to Gopessur's mental state.
40. This abstention on the part of cross-examining Counsel, which certainly cannot be ascribed to any reluctance to use this method of eliciting information, valuable or valueless, becomes the more remarkable, if, as the petitioner maintains, it must have been ascertained what the views of the three doctors were.
41. I pause here to say that though these three witnesses may be experts their evidence in this case has not been that of experts but of men who had observed relevant facts, and whose evidence derives an enhanced value from the circumstance that they had favourable opportunites, peculiar facility and obvious incentive for accurate observation, and that their training would fit them to appreciate and describe what they observed.
42. At this point it will be convenient to consider the evidence of the medical man who was called by the caveator by way of counterblast.
43. He is Col. Pilgrim, also a medical man of repute in Calcutta, but without the advantage of having seen Gopessur. He comes before the Court as an expert pure and simple, and without discussing the argument as to the characteristics of this type of remunerated witness, or determining how far he is merely to be regarded as a man who is paid a retainer to make a sworn argument, it is impossible to get away from the fact that he labours under a disadvantage to which his medical brethren, if the difference of schools permits this description, were not subject. They saw the patient, he did not. The learned Judge seems to have read the expert's evidence as supporting his own view that the evidence of the three doctors was meagre and unsatisfactory in the extreme.
44. But it is important to See what was the question that elicited from the expert the reply to which the learned Judge apparently alludes.
45. This is the question that had such momentous consequences:
How would you describe the clinical picture such as it is that is presented by the evidence of the three doctors?
A. Meagre and incomprehensible.
46. But as I read the evidence of the three doctors they did not profess to paint a 'clinical picture,' whatever that may mean, but as plain honest men to give a true and plain account of Gopessnr's mental condition on or about the 27th of June 1909 as it appeared to them. Had they been required to paint clinical pictures for the expert's purposes I see no reason to suppose they would have been incapable of responding to the demand.
47. To clinch the matter, Counsel put this question to his expert:
Q. Upon the meagre and incomprehensible clinioal picture presented by the evidence of the doctors, are you able to form a clear, satisfactory and convinced opinion as to the mental condition of the patient during, say, the last 8 hours of his life?
A. No, I am not.
Q. Or during the last 8 or 10 days of his life?
A. No, I am not.
48. So much the worse for the expert; but I fail to see how this discredits the evidence of facts given by the three doctors.
49. Before leaving the medical evidence, it is necessary that I should deal with a comment of the learned Judge who says, 'it may also be noticed in this connection that Dr. D.N. Roy, who saw Gopessur after the relapse in consultation with Dr. J.N. Mazumdar and who is said to have given advice as to the capacity of Gopessur to make a Will on 20th June, has not been called. His evidence would, in my opinion, have been most valuable, and I cannot understand why it was omitted.' Now nothing can be clearer than that, if there is sufficient evidence of a fact, it is no objection to proof of it that more evidence might have been adduced.
50. But, apart from this, I do not fully appreciate the learned Judge's comment. To begin with, Dr. D.N. Roy only saw Gopessur on the 20th and 21st, and so he was not in a position to give direct evidence as to his mental condition on the 27th; in other words, like Col. Pilgrim, he could only have expressed an opinion. The 'clinical picture' of which the caveator's Counsel and expert were in quest could not have been filled in by him, and he, as they, would have found there that which was meagre and incomprehensible' when he essayed to speak as an expert.
51. I, therefore, fail to see how his evidence could have been 'most valuable.' But more thus this, for what it may be worth, the cross examination of Dr. J.N. Mazumdar by the caveator's Counsel elicited information that it was Dr. D.N. Roy's view on the 21st that as Gopessur seemed to be better that day, there was no particular hurry about making a Will, but as the case was bad he should make one.
52. The evidence of the three doctors is supported by that of the petitioner and the other witnesses called on her behalf but in the view I take, it is not necessary that I should examine their evidence in any detail at this stage. I, however, find it difficult to follow the learned Judge's comment on Biswanath Sen's absence from the witness-box, or the expectation that he would have given valuable evidence as to Gopessuar's condition on the 25th. Biswanath is a brother of the petitioner and Shambhunath and claims to be a creditor of the estate to the extent of Rs, 5,500 and, a few pages earlier in the judgment, a comment is made on him which makes me doubt whether, if he had been called, the learned Judge would in fact have regarded his evidence as valuable in the view he has taken of the case.
53. I now turn to the evidence of the caveator's witnesses as to Gopessur's mental condition. The first witness was Gora Chand Mullick, the caveator's nephew.
54. There can be no doubt that he has warmly espoused and keenly supported his uncle's cause, and that he has a strong bias in his uncle's favour. Consciously or unconsciously, he has heightened the colour; if his evidence be credited, then Gopessur was practically in a state of coma that the doctors failed to observe, and on a careful consideration of his evidence, I cannot avoid the conclusion that he has gravey exaggerated Gopessur's debility. Bissessur the caveator presents an eqlially gloomly picture. His interest is obvious, but, beyond that, he unfavourably impresed the Judge, who further commented on the way he had been kept back and had not entered the witness-box until a late stage of the case. Why he should have been kept back does not appear, but the adverse comment it invites is so obvious that it is difficult to understand how Counsel came to overlook it. I may point out that though Counsel has a discretion in such matters the Court is not powerless (Evidence Act, Section 135).
55. The two other witnesses Nityananda Thakur and Jogessur Kahar were justly treated by Chitty, J., as undeserving of credit. Not only is their evidence inherently improbable, but the circumstances under which they were procured are calculated lo create neither confidence nor approval.
56. The conclusion then to which I come, on the best consideration I have been able to give to the case, is that on the 27th of June, at the the time when Gopessur was alleged to have executed the Will, he was of sound mind, and that, though very feeble and debilitated, he was capable of knowing what he was doing and of exercising a judgment as to the proper mode of disposing of his property.
57. Then, was the instrument now propounded in fact executed by Gopessur?
58. The evidence is this: in support of the affirmative there is, first, the direct evidence of Shambhunath and Hem Chander Neogi, the attesting witnesses, and of the petitioner and Prannath Sur, who all claim to have been actual eye-witnesses of the execution. Next, there is the testimony of Mr. Rutter, who deposes to his belief that the signature to the Will is in the handwriting of Gopessur.
59. In opposition to its execution, there is the evidence of Gora Chand Mullick and the caveator Bissessur Dutt that in their belief the signature is not that of Gopessur, and the evidence given by them and Nityananda Thakur and Jogessur Kahar that it was impossible for him to have executed the document.
60. Then, over and above this evidence which has a direct bearing on the question at issue, there are the rival contentions fts to the probabilities and improbabilities of the case, and in particular as to the truth or falsehood of of the story as to the preparation of the drafts on the 20th of June,
61. This summary of the evidence invites one broad comment. On the petitioner's side there is the evidence of eye-witnesses, which, if contrary to the fact, admits of no explanation but that it is a tissue of deliberate and concocted falsehoods. Indeed, it was the case presented to us on behalf of the caveator that the story of the drafts was so obviously and palpably false that it was incumbent on us to go beyond the learned Judge and to hold affirmatively that 'shambhunath and Prannath conspired to give false evidence,' and the earned Counsel went on to say 'as I present my case, I have to as the Court to accept this view.'
62. The line of reasoning really came to this, that the story of the drafts so clearly pointed to concerted perjury that it would be wrong to believe the evidence of the petitioner's witnesses as to the execution of the Will.
63. Though the case made before Chitty, J., that Shambhunath actually forged Gopessur's signature has been abandoned here, still, as I have already pointed out, it is contended that he and the petitioner had a hand in the forgery. The gravity of this charge cannot well be exaggerated, and this becomes the more apparent when the position of the persons thus charged is realized.
64. Baba Shambhu Nath Sen is an attorney of this Court, enrolled as such in 1904, and his general good character and the respectability of his family is not questioned.
65. Shambhunath is, and ever since his enrolment has been, in the employment of Messrs. Butter & Co., a firm of repute. Mr. Rutter, the head of that firm, is a gentleman held in high esteem, and indeed, in the course of this case, it has been distinctly said by Counsel for the caveator that 'no question is raised as to Mr. Rutter's veracity.' Mr. Rutter describes Shambhu as a trusted servant of his.
66. The petitioner is a lady of position, the deceased's widow. The other witnesses are of humble social position: still they have characters which no doubt they value. Though, perhaps, it may be going too far to say that the presumption of innocence is so strong even in a Civil case as to cast on him who alleges forgery the whole burden of proof, still the presumption against misconduct is among the probabilities to be taken into account in estimating the value of evidence, and this probability gains in strength where the character and position of the individual impugned is, apart from the particular case, above reproach.
67. Now the evidence of Shambhunath, Hem Chandra Neogi, the petitioner and Prannath is distinct, that Gopessur signed the propounded instrument on the evening of the 27th of June. Their testimony is supported by Mr. Rutter, who states it as his belief that the signature on the instrument is Gopessur's. His acquaintance with the deceased's signature is not questioned. Had matters rested there it is difficult to see how the grant of Probate could have been withheld. In saying this I do not overlook, and for this purpose I do not seek to controvert, though I refrain from affirming, the unfavourable comment passed by Chitty, J., on Prannath. Even if he be left out of consideration there still remains ample evidence of execution.
68. I do not understand the learned Judge to have been unfavourably impressed by Shambhunath's demeanour, or by that of Jogendra Nath Sur or Hem Chander Neogi. Certainly, he has not recorded any remark respecting the demeanour of any of these witnesses while under examination in manner provided by Order XVJII, Rule 12 of the Code.
69. As to the petitioner's demeanour or the manner in which she sustained the ordeal to which she was subjected, the learned Judge is in no better position to form an opinion than this Court. The learned Judge's criticism on these witnesses is as follows: Hem Chander Neogi, he says, is 'merely a servant on Rs. 15 a month', but for all that he may be a truthful witness and it is to by noted that he is a servant not of the petitioner, but of Parmessur's family, to that the Will is to the detriment of those he serves.
70. Jogendra Nath Sur, the learned Judge says, is interested to a large extent and is a man of no position or means. His interest, however, is not under the Will, but as a creditor, while the estimate of his position and means is unduly depreciatory. This at any rate seems clear, that he was a friend of the deceased, and the friendship was of long-standing.
71. The evidence given by Shambhu Nath and the petitioner is depreciated by the learned Judge not from its inherent demerits, or the unworthiness of these witnesses, but it is said that, as Prannath and Jogendra Nath Sur are not witnesses of truth, 'this must reflect back on the petitioner and Shambhu Nath.' This is a doctrine to which I am unable to subscribe in the circumstances of this case.
72. What then is the evidence led in op-position First, we have Gora Chand Mullick's declaration that he does not believe the words 'Gopessur Dutt ' in the alleged Will to be in Gopessur's handwriting.
73. Prior to this he had said he was acquainted with Gopessur's handwriting, but when he was shown Exhibit D, he said: 'I have got to compare it with other handwriting.' But, notwithstanding this statement, and in spite of the other signatures not being shown to him, he asserted his belief in the terms I have indicated. In cross-examination he was able to go further for he then asserts, 'I also say this Will is not his Will. I am prepared to swear it is not his signature.' Later he says, 'It was not his intention to make a Will like this Will. The signature is not like the signature of his hand. From all these circumstances I say it is not his signature.'
74. Perhaps, too literal an interpretation should not be placed on his declaration that before he came into the box, neither Mr. Kar nor any one else asked him about the signature of the Will. This is a common form among witnesses of a certain type, and possibly Gora Chand should be given the benefit of this somewhat equivocal concession. Bat Gora Chand is not a man for half measures: not only does he gain sufficient confidence to make his unqualified statement regarding the Will and the signature, but he is able to ascribe the Bengali date under the signature to the petitioner. He betrays too much zeal.
75. Then comes Bissessur who in the witness-box is prepared to pledge his oath that the signature at the foot of Exhibit D, the propounded instrument, is not his brother's signature. This confident assertion has to be contrasted with his behaviour when he was shown the instrument by Mr. Rutter on the 19th of July, and with the attitude taken up in the affidavit supporting his caveat.
76. Surely, if the signature is the manifest forgery that Bissessar now declares, he would have denounced it as such on the 19th of July, and be would have formulated his opposition in more emphatic terms. He was a witness who did not impress the learned Judge, and his statement that the signature is not his brother's is not, in my opinion, of any value.
77. Then there is the evidence which aims at showing Gopessur was inoapable of executing a Will on the 27th. This proceeds from Gora Chand Mullick, Bissessur Dutt, Nityananda Thakur and Jogessur Kahar. I have already dealt with the evidence of these witnesses so far as they purport to describe his mental condition; their version of his physical incapacity is equally unconvincing. Nityananda and Jogessur seek to negative any opportunity or possibility of executing a Will on the evening of the 27th, but I do not regard these witnesses as deserving of any credit. This view accords with the learned Judge's appreciation of their evidence; it is supported by the general character of their testimony, and is justified by the mode in which they came to be ranged on the caveator's side.
78. In my opinion, of the evidence directly bearing on the question whether Gopessur executed his Will on the 27th June as alleged by the petitioner, there is a distinct preponderance in favour of its execution. Is there then anything in the probabilities of the case that disturbs this preponderance? To answer this it must be seen what are the facts and considerations that have to be taken into consideration in estimating these probabilities. We start with the fact that there was an estrangement between Gopessur and Bissessur, who alone opposes the Will, and that Gopessur was at least anxious that Bissessur should have no interest in his property.
79. On the other hand, he was on terms of affection with his wire, who had, moreover, as for as one can judge, nursed and attended him with devotion in his distressing illness. There was, therefore, nothing in the state of the family or his feeling that would suggest it 'was improbable he should make an absolute disposition of his property in his wife's favour, and, in so saying, I do not forget the little boy, Parmessur's posthumous son, to whom he doubtless was attached, though not as extravagantly devoted as the caveator would have us believe. Then we have the undoubted fact that on Tuesday, the 29th of June, the alleged Will passed into the custody of Mr. Butter bearing the signature that is now denounced as a forgery. Our attention has been called to that signature, though not to the photographic enlargements, and it has been suggested the D, the 'u,' and the crossing of the 't t' should arouse suspicion. It is a matter of common knowledge that forgeries commonly, I do not Bay always, present certain appearances which are indicative of their origin. Counsel, when questioned as to this, was unable to suggest that this signatnre exhibited any of these marks. I do not say that this is in any sense conclusive, but, at any rate, it justifies the view that when the document came into Mr. Rutte'r possession, and that was comparatively speaking within a short time after Gopessur's death, it did not present those appearances which are commonly associated with a forged signature.
80. Then there is Bissessur's behaviour on the 19th of July, and the ordinary presumption against misconduct which I think the petitioner is entitled to ask should be ranged among the probabilities in favour of her story.
81. And now I come to the probabilities which the caveator asserts weigh with overwhelming force against the validity of the Will. First, I will take up the story of the preparatieu of the drafts and the propounded instrument, Exhibits B, C and D. What is said by the caveator is this: this story is so bound up with the actual issue in the ease that if it be disbelieved, it creates an insurmountable improbability in the caveator's way and more than that, it would be impossible to act on the evidence of those involved in it, that is to say. of the petitioner, Shambunath and Pran-nath when they speak to the execution of the Will.
82. The story presented by the petitioner is this. On the night of the 18th of June Gopessur suffered a relapse and on the 19th Sbambhunath was sent for. In the evening Gopessur told him he wanted to consult him about his Will. Nothing further, however, was said that night. On the next day, i.e.
83. Sunday, the topic was renewed and Sham-bbunath's version is as follows:
(To the Court--He said stop here to-night, we will have a talk to-morrow). The nest day was Sunday the 20th June. After our meals myself and Prannath remained with Gopessur, Gopessur told me to make a Will for him. To that I questioned why you are eager to make a Will. To that the answer was 'As there was a relapse he had better make a Will', and the second reason he said that he had on several occasions heard from me that, in case of his dying intestate, his properties would go to his brother, and said that you know our respective feelings towards each other, meaning himself and Bissessur. So by the Will he wanted to exclude his brother. Then I inquired what kind of Will do you want to make. He said first thing he wants to give everything to his wife, and also give her power to adopt and give certain legacies. Having heard that I told him to send a carriage to Mr. Rutter and he will do everything. To that he said Lat me prepare the Will and afterwards I shall go to Mr. Rutter to his office any other day, and get it attested by him and Mr. Rutter junior, and leave my Will with them.' Then again he pressed me for the Will.
(To the Court--To make the Will for him).
To that I said one thing you ought to consider now. You are going to give your properties to your wife and give her power to adopt. In case she does not adopt and dies intestate, whom do you want your estate should go to, as in that case the properties which you are giving to your wife would go to her parent's line. To that he answered I have no children. She is my wife. I want to give her everything. I am not coming after my death to see how my wife deals with the properties. Hearing that I said you can write down your intentions on paper and that will be your Will, only you are to see that 'an executor or executrix is appointed and that you sign it in the presence of two persons who must also witness it. Then he ordered his Sircar Prannath to bring paper and writing materials and he dictated his intentions and Prannath wrote. That was in my presence. This was about 12 noon. As there were certain interlineations, Gopessur asked Prannath to fair copy it and said in fair copying you make the last para. the third one and the third one the last para.
This was the first copy that Prannath wrote. The third para, contains the legacies, he wanted that at the end so as to fill in the names and amounts of legacies at the time of execution. This contaias what I heard Gopessur dictated correctly.
After it was written out, the testator read it. He said it was all right. Just then Gopessur's friend Jogendra Nath Sur came in. Jogendra was a neighbour of Gopessur. They had known each other from boyhood I think. I saw Jogendra with Gopessur since Gopessur's marriage. Jogen went into the room (myself and Prannath both were there), and Gopessur told him the same reasons as to relapse and said that he was going to make a Will and handed over the paper to him, the first draft written out by Prannath, to read, saying that this contains the same provisions as he used to tell Jogen. Jogen Babu read it out.
(To the Court--He read it aloud. We all heard). And then Gopessur told him to fair copy it, asking him to alter the paras, as I have already said. As there was no paper in the room Prannath was going to bring paper from the Daftarhhana in the adjoining house which was the Thakurbaree, bat Gopessur said you both better, meaning Jogen and Parnnath, go there, and write out. They went away. About half an hour after they came back. I was all along with Gopessur, and Jogen handed over bath the papers to Gopessur. The original draft and the fair copy written out by Jogen. He read both, Gopessur read both.
This is the fair copy I refer to. It was handed to Gopessur in my presence, It's in Jogen's handwriting.
During the time Prannath and Jogen were away, I don't recollect anything.
After reading both the papers Gopessur gave me the fair copy (Exhibit C) to look at. On seeing I said this would not do as there was much space between the several paragraphs, and he inquired how it was to be written. I said there ought not to be any space so let it be written out again without any space. To that Gopessuar directed Prannath to re-write it at night and give him the next morning, and gave both the papers to Prannath. He said there was no use of hurrying now, you can write at night, and give me the next morning, so that Gopessur would execute it in the presence of the doctors when they came. I stayed with Gopessur in this garden-house that night. He asked me to stop that night also. I had also my father's permission when he turned up that night. Dr. J.N. Mazumdar came that night. He said the patient is much better now, and hoped to give him rice next morning--Monday morning, On Sunday my father was there in the morning, but came away when the doctors left in the morning, then again my father and mother both went up there a little before dusk I think, and I came away after the doctor left. I remained there that night.
Next morning (Monday, 21st June), at about 8 o'clock, Prannath brought all the three papers, the original draft, the fair copy and the copy he had written out the previous night, and gave them to Gopessur in my presence. Gopessur saw them. He read them and said that he was feeling much better so let the execution of the Will be postponed now, and said, as soon as he was well and allowed out for drives, he - would come to Mr. Rutter at his office and execute the Will there, and told Prannath to keep the three papers in the almirah, and Prannath kept them there. The almirah was closed, Gopessur handed over the key which was attached to his Har (golden chain) he wore. He handed both key and chain, and Prannath opened the almirah and kept the papers there and handed the key and chain back. It was about 8 A.M.
84. Por the caveator it was asserted before us that this is a false case, and that those of the petitioner's witnesses who have deposed to it have conspired to tell a false story, and this assertion is based not on any definite sworn testimony to the contrary, but on the inherent incredibility of the story, and the inference invited by an examination of the documents.
85. It is said, it is incredible that Shambhunath should have preserved the attitude of aloofness he professes, seeing that the purpose for which he was invited was to assist in the preparation of the Will, that the Will itself points to the handiwork of a lawyer and not of a layman, and that the story as to the preparation of the three documents (Exhibits B, C and D ), more particularly when regard is had to their appearance, is not worthy of acceptance.
86. I am disposed to think the assistance rendered by Shambhunath in the preparation of the Will has been minimized and it is this that has furnished the caveator with his most potent controversial weapon of attack, and if, at first sight, this would seem to imply a lack of candour on his part, a closer examination shows that he has dissociated himself from that which is formal, not that which is of real and essential importance in the Will. Thus he, in effect, admits, without any attempt at concealment, that the mention of an executrix in the Will may be fairly attributable to him, and that he had a hand in placing the absolute interest of Jarat beyond question. And, after all, these are the two matters in which he might be said to have an interest, these are the matters of substavica. The power to adopt was, if anything, to his detriment while the pecuniary legacies are of no serious moment. Much has been made of the phraseology and form of the Will, and it is in this connection that Mr. Mohini Mohan Chatterjee, an attorney of this Court, has come forward to lend his support to the caveator's case. He is described, and has been treated by Mr. Justice Chitty, as an expert, and his evidence had a manifest influence on the learned Judge. In the view I take of this gentleman's evidence I do not consider it necessary to discuss in detail the relevancy or irrelevancy of its different parts, or his title to give the evidence he did as an expert: it suffices for me to say that I do not attribute to his testimony the importance that the caveator claims for it. Our attention has been drawn to words and phrases which, it is said in the light of Mr. Chattetjee's evidence, could only have owed their appearance to Shambhunath but it is not unreasonably answered that, if this was the caveator's case, then it is to be regretted that these points were not put to Shambhunath, and it is appropriately pointed out that he was cross-examined by a learned and experienced Counsel in every way equipped, possibly as well equipped as Mr. Chatterjee, for the purpose of estimating whether the words and phrases were as pregnant of suspicion as Mr. Chatterjee would have the Court believe. Thus, the caveator's Counsel would see something sinister in the fact that the widow is merely authorized and not directed to adopt, and yet he is constrained to admit that, in law, the result is the same. Next, he would see something even more sinister in the fact that the widow takes an absolute interest whilst no effective legal provision is made for the adopted son. It is difficult to appreciate with exactness what the train of reasoning here is: whether the omission points to the presence, the absence, or the abase of legal assistance, and the earned Counsel did not succeed in elucidating this point. But be that as it may, it was conceded that the mere fact that an absolute interest was given to the widow was not in itself supicious, and it could not well be otherwise contended in the light of common knowledge, and, indeed, what it may be worth it may be remarked that the Privy Council in Dowlat Koer v. Ramphul Dass 25 C. 459 : 25 I.A. 21 : 2 C.W.N. 177 upheld a Will propounded by a widow in whose favour a similar disposition had been made. So it must be on the absence of an adequate provision for the adopted son that comment is made. Now it is outside my present purpose to construe the Will so far as it relates to the adopted son's right, but I am by no means sure that the author of the document may not have thought that the adoption, apart from special provision, might detract from the widow's right in favour of the adopted son, for he expressly declares that the adopted son shall not be competent to put forward any manner of claim in respect of the testator's properties during the life-time of the wife. I do not propose to discuss the legal effect of the provision, but the words appear to me to suggest an impression in the person responsible for them, that the adoption in itself might create a right in the adopted son, This may have been a misimpression, and, if so, it is one into which a layman rather than a lawyer would have been misled and in any cas6 I fail to trace Shambhunath's hand in it. So much for the caveator's contentions based on the internal evidence furnished by the words, phrases and provisions of the alleged Will.
87. This brings me to a topic on which, before us, the caveator's Counsel has principally directed and concentrated his attack, that is to say, the actual preparation of the documents B, C, D, as disclosed by the evidence. The whole story, it is urged, is incredible. Thus, it is said that it is ridiculous to suppose C was rejected because of the wide spaces between the paragraphs, and that this is merely a device for bringing Jogendra Nath Sur into the plot. I cannot agree with this. I think the explanation of the rejection is eminently reasonable, when it is borne in mind that the proposal was that C should be executed as a Will. Then it is said that in view of the fact that both C and D are alleged to have been drafted in the daftarkhana no satisfactory explanation of the difference in the ink is given, for that vouchsafed by Shambhunath is improbable. Bat if an explanation was desired, it should have been sought of the only man who could give it. Prannath alone knows the conditions under which he wrote out Exhibit D, but he was not questioned on this point. Then it is asked why was Mr. Rutter not instructed to approve the drafts, why was he not invited to attest the Will, why was the Will not executed in the presence of the doctors? No doubt had any of the precautions in dicated in these questions been observed, much trouble would have been saved, but I cannot regard the failure to observe them as creating any serious improbability. The truth is, superstition and caprice are not foreign to the execution of a Will, and the reluctance that results from seeing in a Will a 'remembrancer of death' is not without its influence on the behaviour of intending testators. Then it is said Gopessur was in extremis. If by this is meant that he was in articulo mortis, and that he was testamentarily incapable, the answer is that this contention is against the weight of evidence: if it is meant that the Will is alleged to have been executed in circumstances which call for a vigilant scrutiny of the evidence, my reply is that to the best of my ability I have endeavoured to perform that duty. Then how do matters stand if the preparation of Exhibits B, C and D be' looked at from the petitioner's point of view? We start with this that I am convinced these documents were in existence on Tuesday, the 29th of June, and were handed to Mr. Rutter on the morning of that day. This is the conclusion at which Mr. Justice Chitty also arrived. The petitioner's version, if true, affords a reasonable explanation of how the three documents came into existence, and yet, at the same time, the circumstances which explain their peculiarities, depending as they do on the curious and trivial chances of actual events, are not such as a forger would be likely to forecast or invent. More especially is this so if, as the caveator would have us suppose, the documents were prepared while Gopessur was in a moribund state or afterwards. I do not propose to examine the possibilities of this theory in detail, but it is not without its difficulties. The time at the disposal of the scheme is was not long, while their undertaking was complex. Gopessur died in the early hours of Monday, documents were in Mr. Ratter's possession on the following Tuesday morning. From this period must at least be deducted the time occupied in the funeral ceremony, that is to say, from 6 or 7 in the morning, when the party started for the ghat till their return at 12 or 1. In the available time much had to be done; the story requiring the preparation of the three drafts had to be composed or sketched, at any rate, in outline by some one, the three documents had to be prepared with the interlineations, erasures and variations that they exhibit, the two writers and Hem Chander Neogi had to be procured and convinced, there was the attestation Clause to be added by Shambhunath, and the attestation by him and Hem Chander, there was the admirable imitation of Gopessur's signature to be effected, and the widow's addition of the Bengali date, Leaving out all such hindrance to despatch as the feelings evoked by Gopessur's death might be expected to create, this would be no mean performance on the part of this confederation of forgers.
89. Though the caveator is not bound by the theory advanced in his interests, I have not thought it necessary to discuss other possible but unpropounded theories. On the other hand, as favouring the view that the drafts were prepared on the 20th, we have the fact that the advisability of a Will was discussed when the doctors came on the 20sh, while Mr. flutter declares that he heard of the two general provisions of the Will two or three times before the documents were brought to him. To escape from this important statement, the learned Judge says, 'Mr. flutter's memory may be deceiving him on this point,' while before us it has been suggested, not that Mr. Ratter was not told about the two general provisions, but that he must have been so. told after the documents had been handed over to him.
99. But if this is the caveator's case, it is a pity it was not put to Mr. Rutter while he was in the witness-box, he could have dealt with it. For my part, I can see no sufficient reason for not accepting Mr. Rutter's statements in the sense in which he made it, and, if so, it unquestionably lends considerable support to the petitioner's case that the documents were prepared before Gopessur's death.
100. I have discussed these three documents Exhibits B, C and D in considerable detail as the civeator so largely rested his case on what he contended was the obvious falsehood of the story.
101. The conclusion to which I come is, that the story of-the three documents is in the main true, and though Shambhunath may not have been so detached as the evidence would make out, I hold that Exhibits B, C and D were written out as the witnesses describe, and that Gopessur was responsible for them, and knew and understood their contents. His mental capacity at that time had not been questioned, so that had it been necessary it would have been open to the petitioner to rely on the doctrine recognized in Perera v. Perera (1901) A.C. 354 : 84 L.T. 371 : 70 L.J.P.C. 46.
102. It now only remains for me to express the view I take of the whole case. The weight of evidence, in my opinion, is strongly in the petitioner's favour, both as to Gopessur's mental condition and the fact of execution. Though there are matters on which there is room for doubt, I am unable to regard the probabilities as opposed to the case made by the petitioner, rather otherwise. Moreover, the mere improbability of this or that in so complex a transaction as that under consideration cannot go for much against the clear and distinct evidence of witnesses of good general character, and, after all, probability and improbability of the type with which we are here concerned is apt to become a matter of speculation and predilection, for different persons act differently in similar circumstances and much of that which has been classed as improbable in this case comas to little more than a failure to observe a higher standard of precaution and to do the wisest and safest thing under the circumstances.
103. The conclusion then to which I come is that Gopessur did sign Exhibit D on the evening of June the 27th, as alleged by the petitioner, that he intended by so signing to give effect to the writing as his last Will, and that at the time he was of sound mind and capable of exercising a judgment as to the proper mode of disposing of his property, and that he knew what he was doing. No dispute was raised before us as to the legality of the attestation.
104. The judgment of Chitty, J., should, therefore, be reversed, and a grant of Probate made to the petitioner, Sreematy Jarafc Kumari Dassi. The costs of suit and appeal throughout must be borne by the respondent, Biesessur Dutt.
105. A considerable number of decisions have been cited upon the question of the nature of the proof required in the case of Wills. In my opinion a reference to them is unnecessary, for I am not aware that a Probate case is in any respect singular as regards the application of the general principles of proof. Those general principles have been stated in the Evidence Act to be as follows:
Whoever desires any Court to give any judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.' (Evidence Act, Section 101). In this case we are asked to give judgment as to the existence of the Will propounded and as to the legal rights which follow such a conclusion. Section 3 shows the meaning of proof to be that the fact (in this case the Will) is proved when the Court, after considering the matters before it, either believes it to exist or considers its existence so probable that a prudent man ought under the circumstances of the particular case to act upon the supposition; that it exists. Each case must, therefore, be determined on its own facts.
106. Upon, however, the decisions cited I would observe that the rule in Tyrrell v. Painton (1894) P. 151 159 : 6 R. 540 : 70 L.T. 453 : 42 W.R. 343 applies, in my opinion, to cases where the circumstances of suspicion arise from the nature of the case as put forward by the propounder. In such cases the propunder must remove the suspicions which his own case creates. Where, however, the alleged suspicion against a Will arises from facts which form parts of the impugnant's case then the Court must see whether the facts which are said to give rise to the suspicion are proved or whether the plaintiff's case is proved. The rule, therefore, does not apply where the question is simply which set of witnesses should be believed Shama Oharan Kundu v. Khettromoni Dasi 27 I.A. 10 : 4 C.W.N. 501 : 27 C. 521. In the present case the defendants put forward (though in an uncertain way and at a late period of the case) a charge of forgery. This the learned Judge has found to be not established.
107. Of the defendants' eight witnesses the first and last are formal. The learned Judge does not accept the caveator's evidence, nor that of the two former servants. He does not, at one passage at least, confider Colonel Pilgrim's evidence necessary for his decision, though on other points he does refer to it. The bulk of Colonel Pilgrim's evidence was irrelevaut. He stated that he was unable to pronounce an opinion either as to the cause of death or as to the physical and mental condition of the alleged executant. This admission substantially disposes of his evidence. Other portions of his testimony are inadmissible as being mere advice to the Court on the evidence and outside the opinion rule, or if admissible in form, are not, in the present circumstance, of value or relevant. This testimony appears to have been given not after hearing the evidence but on a copy of the disposition. It has been objected that this itself makes the evidence inadmissible. I do not agree, though I think the better course to follow where expert testimony is given is that the expert should hear the evidence as to which he is asked his opinion. There remain the two witnesses Mohini Mohan Chatterjee and Gora Chand Mullick. As regards the first it was contended that he was not expert. It is, however, quite clear in my opinion, that he is expert on questions relating to the Bengali language which is his own (including Bengali legal terms) and Sanskrit which he has studied. It is essential, however, to distinguish the rule of qualification founded on the experience of-the witness and that which, permits him to advise the Court with an opinion. Every witness must be fitted or expert in the matter upon which he gives his supposed knowledge. In some cases, viz., where the witness is expert in the narrower sense, his competency must be specially shown. The question, however, whether besides deposing to facts he is to be permitted to express his opinion is another matter. In each case, therefore, it must be asked, is the matter one upon which the witness is sufficiently qualified by experience and if he is, is it a matter upon which the witness is permitted to assist the Court with his opinion? This must be (Section 45, Evidence Act) a matter of foreign law, science and art, handwriting or finger impressions. It would be relevant in this case to prove by the evidence of persons who knew him that the testator was of limited education and without literary and legal attainment and then that the alleged Will was written in literary Bengali and contained terms of a peculiar literary or technical legal character, and on these fasts to invite the Court to say that the Will was not written by the deceased. His evidence, however, in parts goes beyond this and where it does is inadmissible as where he was asked to express an opinion as to the literary skill and culture and legal knowledge of the deceased. The learned Judge states that this evidence raises a grave doubt whether the Will was the exclusive composition of the alleged testator as the petitioner's witnesses assert. As regards Gora Chand Mullick, the learned Judge, after stating that he is a partisan of Bissessur and that portions of his evidence are hard to believe, says that he is inclined to think that his story as to the deceased's physical condition is substantially correct. These two are practically the only conclusions (though it may be doubted whether they amounted even to that) which are held to be establised by the defendant's evidence.
108. The question then became simply this: Had the plaintiff under these circumstances made out his case? The learned Judge has held that he has not, because he thinks that there are elements of doubt and suspicion which have not been removed.
109. Before dealing with this there are two points of evidence which arise upon the defendant's case as to which I desire to express my opinion. As regards Bissessur the learned Judge points out that he abstained from going into the witness-box until all his witnesses other than the experts and formal witnesses had given evidence. The Court might and, I venture to say under the circumstances of this case, should have directed that the caveator be examined earlier, if not (as would have been proper) in the first place. The Court has always power to do this under Section 135 of the Evidence Act.
110. Next, in re-examination of the witness Gora Chand, an unproved copy of a statement briefed to Counsel of his evidence was put into hi3 hands and he was asked whether it correctly represented the subatanae of what he had told the caveator's attorney. The question, though objected to, was allowed and answered affirmatively. It is not necessary to consider whether it was admissible an the document itself was subsequently rejected, I would observe, however, that the Court could not assume that the document was proved from the refusal of opposing Counsel to cross-examine to it. The latter was en-titled to wait until the Court ruled whether the document had been proved or not. A question has arisen in connection with this as to the right of Counsel to inspect a document which opposing Counsel has put in the hands of a witness. The rule on this point appears be correctly stated in Taylor on Evidence, 1452, as follows: 'On the whole the practice seems to be that if the cross-examining Counsel, after putting a paper into the hands of a witness, merely asks him some questions as to its general nature or identity his adversary will have no right to see the document, but that if the paper be used for the purpose of refreshing the memory of the witness or if any questions be put respecting its contents or as to the hand writing in which it is written as in the case, Peck v. Peck 21 L.T. 670 : 18 W.E. 295 cited to us in argument a sight of it may then be demanded by the opposing Counsel.
111. Proceeding then to the propounder's case we have the following facts: The Will is not an unofficious one. The deceased had no children living. The evidence clearly establishes that he was on very bad terms with his brother Bissessur and desired to exclude his taking any portion of his estate.
112. He was on good and probably affectionate terms with his brother Parmeswar who is dead and was possibly fond of his child. The latter, however, is provided for, having succeeded to his father's estate. If the alleged conversation between Sbambhu Nath Sen and J.N. Mazumdar is admissible, a matter which is open to doubt, it is of too vague a character to establish any intention to benefit Parmeswar's son. There is no suggestion that the deceased was not on good terms with his wife to whom he left his property. It has been found that there is nothing improbable in such a disposition, Mr. Rutter says that about a week before deceased's death he had heard that the testator was going to make a Will and that he had heard from Shambhu Nath Sen of the two general provisions of the Will The medical evidence (the veracity of which is not impeached) also proves preparations for a testamentary disposition. Mr. Rutter, who was the solicitor of the family and whose credit it is admitted is beyond attack, swears that the signature on the Will is that of the deceased and that the Will and the two drafts were in his possession on the Tuesday following the death of the testator. There is other evidence as to the signature which is strongly supported by the attitude which the caveator assumed on this point. Though he now alleges the Will is a forgery he did not set that up in his affidavit of 20th August 1909, though in the previous month he had seen the Will at Mr. Rutter's office when he says he at once detected that it was not his brother's signature. He says that Mr. Rutter asked him if he had any doubts with regard to the signature upon which the witness said.
113. 'I told him how could I tell him?' The affidavit is silent on the point.
114. The propounder's medical evidence establishes the mental capacity of the deceased. In my opinion the cross-examination of these witnesses which was very brief does not challenge their evidence as to the physical or mental condition of the deceased. It was not open then for the caveator to contend that their evidence was meagre or unsatisfactory on points which their cross-examination in no way challenged. It was argued that it was not good policy to cross-examine the doctors even though they had prior to suit been approached by or on behalf of the caveator who admits them to be persons of respectability anxious to speak the truth. One might have understood this argument where the credit of the witness was doubtful but this is not impeached. An omission to cross-examine is not intelligible on the assumption that there was a desire to elicit the truth. We have it then that there is the Will containing provisions of a probable character, the intention to make and the general provisions which were disclosed to a witness whose credit is not impeached, which bears a signature which by the same witness as by others is shown to be that of the deceased who by the testimony of medical witnesses (whose respectability is not impugned) was of sound and disposing mind. All this is most powerful evidence to support the evidence of preparation and actual execution of the Will. The main attack here has been against the evidence as to the preparation of the draft on the 20th. It is contended that the evidence that the deceased dictated it without assistance except such as Shambhu Nath Sen admits is untrue and that in fact the draft was the composition of the latter witness who denies this from fear that it might be suggested that he had exercised undue influence over the deceased for the benefit of his sister. It is possible that the witness, Shambhu Nath en, may have understated the assistance which he gave, to the deceased but that fact alone, even if it were established and he had been (as he was not) directly cross-examined on the point, would not, in my opinion, under the circumstances of the case, be sufficient to displace the strong inferences in favour of the Will which arise from the rest of evidence in the cause. If, as I find, the signature is that of the deceased and the latter was when he affixed it of sound mind and knew what he was doing the details as to the mode in which the Will was actually prepared are in this case of secondary importance.
115. It is noteworthy that objection was taken to Mr. Rutter stating what Shambhu Nath had said to him prior to the death of the deceased relative to the preparation of the Will, and that on the 7th January 1910 a suggestion was made to him in cross-examination that there was then in his office a deed of gift by the deceased's widow in favour of Parmeswar which was to be executed if Probate was granted, a suggestion which is only consistent with there having been a Will which gave tie property absolutely to her. There is no caveat, entered from Parmessnr's branch of the family though it is charged that, the alleged forged Will defeats the alleged intention of the deceased to benefit it. Hem Chander Neogi one of the attesting witnesses is employed by that branch of the family.
116. It is further suggested that the attorney, Shambhu Nath Sen, who it is charged took the principal part in the alleged forgery of the Will, told Dr. J.N. Mazumdar that the deceased's nephew was to be benefited under the Will which he was about to forge and which when produced in fact excluded the nephew. These and other suggestions, the nature and (on points) absence of cross-examination, and the time and mode in which the defence has been presented indicate very clearly to me that the caveator has no definite case, and the charges he now makes fail. On the other hand, for the reasons I have stated I am of opinion that the propounder has established the Will.
117. I agree, therefore, in decreeing this appeal and in the order passed thereon.