Lancelot Sanderson, C.J.
1. In this case the question arises in connection with the Will of a man called Fakir Chand Dey. The appellant is the sister's daughter's husband, and the respondent is the son of the testator.
2. The Will was made on the 7th of April 1903 and under it the appellant took a substantial interest. The Will is alleged to have been revoked on the 29th of August 1913. The testator, apparently, was taken ill in August 1913; he went to a place called Karmatar and returned from there some time in August, and, according to the endorsement in the Will, he cancelled his Will on the 29th of August 1913.
3. The appellant puts his case in two ways. He says first of all that the whole of the cancellation was not genuine. He alleges that the handwriting on the Will which purports to be the cancellation is not in the handwriting of the testator, that the signature which purports to be the signature of the testator in respect of the cancellation is not the signature of the testator, and he goes on to say that the date was originally the 9th of August but was altered, at some time or other, to the 29th of August. He also says, though his learned Counsel did not seem to lay so much stress on this part of his case, that although the words of the cancellation may have been written upon the Will by the testator himself and although the signature may have been his, still there was no tearing at the time the word 'cancelled' was written, and that the tearing was done by somebody after the testator's death.
4. There is an alternative point which the appellant takes. He further says that even if the cancellation in every sense of the word was a genuine cancellation, it is not effective in law, because the cancellation was not attested by two witnesses in accordance with the provisions of the Act, and secondly, that the tearing is not a sufficient tearing in compliance with the provisions of the Act.
5. On the other hand, on behalf of the respondent it was contended in the Court of first instance that the cancellation was absolutely genuine, that the testator consulted his solicitors Messrs. Bonnerjee and Bonnerjee of whom Jotindra Bonnerjee was the surviving partner, that Mr. Bonnerjee was summoned to the house of the testator, that he took the Will with him to the testator's room, that after requesting the testator's partner to leave the room, and in the presence of the testator's son, the testator wrote the word which appears on the Will, 'cancelled,' and signed his name and dated it the 29th of August.
6. I think it would be quite unnecessary and would be uselessly taking up the time of the Court if I were to go into the facts of the case in great detail. The main facts have been very carefully set out by the learned Judge of the Court of first instance who tried the case: they have been very clearly stated by the learned Counsel who appeared before us, and in addition to that we have a statement of the facts relied upon by him handed up to the Bench this morning. I have stated the contention on the one side and on the other. In my opinion this was a case in which the main question which was, of course, a very serious question as to whether this cancellation was a genuine cancellation or not, is a question of fact and which to a very large extent depended upon the evidence of witnesses and the way in which they gave their evidence.
7. It is quite unnecessary for me to emphasize the point that the learned Judge who has to decide a question of fact has the opportunity and advantage of seeing the witnesses in the witness-box, of hearing them give their evidence and of observing their demeanour when they are giving their evidence and has thus enormous advantage over Judges who are sitting in the Court of Appeal, and for whose guidance there are only the written memoranda of the evidence and the arguments of the learned Counsel, who no doubt place their case before the Court, as in this case, to the best of their ability : and, where the point is really a question of fact, speaking for myself only, I should be very reluctant to interfere with the judgment of the learned Judge of the Court of first instance who has had that opportunity of seeing the witnesses on both sides and has evidently tried the case with very great care and has given the matter his earnest consideration. In my judgment, the opinion of the learned Judge, so formed after seeing the witnesses and hearing their evidence upon a question of fact, ought not to be differed from by this Court except upon very clear ground indeed.
8. Now, in spite of the very able arguments of the two learned Counsel for the appellant to which I have listened with great attention, they have not satisfied me that Mr. Justice Chaudhuri upon this question of fact has gone wrong : and, that being so, it is really not necessary for me to say more. I quite agree with them that there are matters which might legitimately give rise to suspicion; I may mention, as an instance, the fact that inspection was not given as was asked for; that the reasons for refusing that inspection might not appear to be good reasons; that an unjustifiable charge of Rs. 200 was asked for as preliminary to giving such inspection I am only mentioning these facts to show that I have not forgotten but have considered them. Then there is the fact that the day-book was not at first produced and was not actually seen until April 1914. There is also the fact that there is a blot upon the Will which, it is urged by the learned Counsel for the appellant, is a blot of the figure 2 only and, therefore, goes to show that the figure 2 was added afterwards and was not put upon the paper at the same time as the figure 9. I have considered that. Judging through my own eyes, I am not at all certain that the blot is not only of the figure 2 but of part of the figure 9 as well; and, I am not at all certain that there may not have been some more ink used upon the first part of the writing which deals with the date and that part may not have dried so soon as the other. And, while I am referring to this, I may mention that it seems to be quite possible that anybody looking at the figures hurriedly might say this is 9th August, but looking at it more closely, it is not 9th but 29th. The two figures are put so closely together that on casual or short inspection they- may appear to be one. I am only mentioning these matters to show that I have not forgotten them, but I do not intend to go into any detail. I may justify my judgment upon this ground that the question is a question of fact, and Mr. Justice Chaudhuri had the evidence which, in my opinion, if believed, justified him in coming to the conclusion to which he did. I have considered the whole of the evidence, and the learned Counsel for the appellant has not satisfied me that the opinion of the learned Judge is wrong. This is quite sufficient to say with regard to the first point.
9. With regard to the second point, it raises a very interesting question of law and it is this: Assuming that the cancellation upon the Will was a genuine cancellation, still it is not such as complies with the provisions of Section 57 of the Indian Succession Act.
10. Now, that section, no doubt, requires two things, first of all, an intention to revoke, and secondly, the cancellation to be executed in the same way as a Will ought to be executed, or there must be a burning, tearing or otherwise destroying the Will. The section says, No unprivileged Will or codicil nor any part thereof shall be revolted otherwise than by marriage or by another Will or codicil or by some writing declaring an intention to revoke the same and executed in the manner in which an unprivileged Will is hereinbefore required to be executed.' I may pause here for one moment to say that it is admitted in this case that the alleged revocation or cancellation was not executed in the manner in which a Will ought to be executed. Then the section goes on to say, or by the burning, tearing or otherwise destroying the same by the testator...with the intention of revoking the same.' Therefore, we have got to consider whether there was first of all the burning, tearing or otherwise destroying, and secondly, if there was such burning, tearing or otherwise destroying, whether that was done with the intention of revoking the Will. Now, the only thing that is alleged here is tearing. Therefore, all we have got to consider is whether such tearing comes within this section, and secondly, whether this was done with the intention of revoking the Will.
11. Now, it seems to me that if Mr. Justice Chaudhuri's judgment be upheld upon the first point-as in my opinion it must be namely, that the cancellation was genuine, then it is obvious that the testator had the intention of revoking his Will. Therefore, the only question which is left to be considered is whether there was a tearing of the Will in such a way as to comply with the provisions of the section. In my opinion there was. It is to be noted in this case that according to the evidence which Mr. Justice Chaudhuri has accepted, the testator did all that he was told to do. The learned Judge says, ''He never intended to tear it up altogether. His, intention was only to tear it partially as suggested by his attorney. He completely carried out the instructions of his attorney. He was not told to do anything more.' I draw attention to that, because that seems to me to entirely distinguish this case from the case of Elms v. Elms (1858) 1 Sw. & Tr. 155 : 27 L.J.P. 96 : 4 Jur (N.S.) 765 : 6 W.R. 864 to which the learned Judge of the Court of first instance drew attention, and the report of which Mr. Justice Mookerjee has handed to me this morning. In that case there was a tearing of the Will, a tearing across all the pages of the Will, but no one of them was completely torn through, and it came about in this way: The testator when he began to tear them intended to revoke the Will. Before he completely tore them he was prevented by the exclamations of those who were in the room from completing the tearing by tearing it right through, and, therefore, he never actually completed that which he set out to do. In this case, if we accept the finding of fact-which I have said we ought to do-that what the testator was told by his attorney to do was to tear the Will partially, and Mr. Justice Chaudhuri has found on the evidence that he carried out those instructions, the testator did complete that which he set out to do. It is pretty clear to ray mind upon the authority of the learned Judge who gave judgment in that case, and I adopted what he says, that the Legislature does not mean that the testator must rend the Will into more pieces than it originally consisted of. The learned Judge adds 'and, therefore, although no one sheet of paper was completely divided, I think the tearing might be sufficient to revoke if done with that intention. But in order to make it effectual he must have intended to revoke by so tearing it: by which I mean that he must have intended that which he actually did of itself to have that effect without more.' Mr. Justice Chaudhuri has found quite clearly on the evidence-and I do not intend to interfere with that finding-that when the testator did tear the Will in the way he did, he did intend to revoke it by so tearing and he did not intend to do any more tearing. That being so, I think the tearing comes sufficiently within the meaning of the section. I have to refer to one other case which the learned Counsel has cited this morning in the course of his argument, Bibb d. Mole v. Thomas (1749) 2 W.B. 1043 : 96 E.R. 613. In that case the testator being in bed one day near the fire ordered a person to fetch his Will, the Will was fetched, and then he opened it and gave it a rip with his hands and then rumpled it together and threw it on the fire, but it fell off and was not burnt. The person who was in the room picked it up and kept it without his notice. It was left to the jury to consider whether that was sufficient revocation and the jury found that it was and that the testator intended to revoke it : and when it went to the Court, Chief Justice Grey observed that this case fell within two of the specific acts described by the statute: it was both a burning and tearing, although as a matter of fact in that case the Will had got only a rip with the hands and had fallen off the fire being slightly burnt without being seriously injured. I think upon the authority of those two cases, it is clear that a tearing which is such a tearing as to evidence a man's intention to revoke a Will, and is all the tearing that he intends to do and then stops as he has done in this case, a tearing which he was directed to do on the evidence of his attorney, and this added to the fact that he writes the word cancelled,' and signs his name, would, in my opinion, be a sufficient compliance with the provisions of the section; and on those grounds I think Mr. Justice Chaudhuri's judgment was right upon the second point.
12. For these reasons I think Mr. Justice Chaudhuri's judgment and decree must be upheld and this appeal must be dismissed with costs.
John Woodroffe, J.
13. I am of opinion that the facts of this case establish that what was alleged to be done constituted an effective revocation in law. The rest of the question is one of simple fact. The appellant has shown no ground for disturbing the judgment of the Court of first instance, the accuracy of which in the main depends on the value, which the learned Judge attached to the witnesses whom he had an opportunity, which we have not, of seeing. I agree, therefore, that the appeal should be dismissed.
Asutosh Mookerjee, J.
14. I agree that Mr. Justice Chaudhuri arrived at the correct conclusion upon each of the two fundamental points in the case, namely, first, was there a genuine act of cancellation by the testator? and secondly, was the act operative as a valid cancellation in law?
15. The answer to the first of these questions depends upon the evidence. Notwithstanding the careful criticisms of the Counsel for the appellant, I can see no good ground to differ from Mr. Justice Chaudhuri in his estimate of the evidence on the record, which conclusively establishes that the endorsement of cancellation was made by the testator. There is also satisfactory evidence to show that the Will was torn by the testator. There is an entry to this effect in the day book of the attorney, and I see no reason to doubt the genuineness of that entry. We have consequently the two facts that the Will was torn by the testator and that he made an endorsement to show that he intended to cancel the Will thereby.
16. The second question is, whether the act of tearing was operative as a valid cancellation in law. The answer depends upon the true construction of Section 57 of the Indian Succession Act. That section, as I read it, lays down that revocation consists of two elements; intention of the testator and some outward act or symbol of destruction. A defacement, obliteration or destruction without the animo revocandi is not sufficient. Neither is the intention, the animo revocandi, sufficient, unless some act of obliteration or destruction is done. What acts of tearing, burning, cancelling or obliterating are sufficient to constitute a total or partial revocation, must depend, to a considerable extent, upon the circumstances of each case. Reference may, in this connection, be made to a passage in the judgment in the case of Price v. Powell (1858) 3 H.& N. 341 at p. 350 : 117 R.R. 719: 'If the document should be entirely burnt up, entirely obliterated or torn into scraps or covered with cross-lines, there would be no doubt as to the intent of the testator. But it is not necessary to go to that extent in any of the modes, in order to answer the requirements of the statute, and, the slightest degree of either mode is effectual as to such revocation, provided it appears that the act was done with the intent to have it constitute a revocation.' The conclusion consequently follows that by tearing is not meant a literal tearing to pieces: the slightest act of tearing with intent to revoke the whole Will thereby is sufficient for the purpose. This view is in agreement with the principle deducible from Bibb d. Mole v. Thomas (1749) 2 W.B. 1043 : 96 E.R. 613, Clarke v. Scripps 2 Rob. Ecc. 563, Elms v. Elms (1858) 1 Sw. & Tr. 155 : 27 L.J.P. 96 : 4 Jur (N.S.) 765 : 6 W.R. 864, Price v. Powell (1858) 3 H.& N. 341 at p. 350 : 117 R.R. 719 and Williams v. Tyley (1858) Johnson 530 : 123 R.R. 223 : 5 Jur. (N.S.) 35 : 7 W.R. 116 : 70 E.R. 531. On these grounds, I agree with the learned Chief Justice that the judgment of Mr. Justice Chaudhuri must be affirmed.