1. This is a second appeal against a judgment of the learned District Judge of the Assam Valley Districts, setting aside the judgment of the learned Munsif who by his judgment granted probate to the petitioner, who is the appellant before us. The petitioner's case was that one Juddharam Kakoti executed a Will on the 23rd of June 1919 which is marked Ex.A in these proceedings, and then on the 28th of June in the same year executed another Will which is marked Ex. I in the present proceedings; and the Petitioner asked for probate of the last Will of the testator who died on the 3rd of July 1919. The present proceedings were instituted on the 28th of November 1919.
2. The proceedings were contested by Nareswari, the testator's widow, and Someswari, one of his daughters.
3. The learned Munsif who tried this case in the first instance, as it was possible under the rules prevailing in Assam, went fully into the evidence adduced in the case, and pointed out that the Will under consideration was merely a supplement to the earlier Will, and under the circumstances of the testator, was a reasonable one in that it provided maintenance for all the dependent members of his family and made a fair division of the properties between the daughters; and the learned Munsif also relied upon the testimony of the witnesses who supported the Will.
4. On appeal, the learned District Judge set aside the judgment of the learned Munsif.
5. It appears that the learned District Judge did not discuss either the oral evidence or the probabilities of the case, but simply relied upon what appeared to him to be a signature on the Will as a mere tracing forgery' of some other signature of the testator.
6. On appeal, it was contended by the learned vakil who appeared for the appellant that the judgment of the learned District Judge was erroneous in law in that it set aside the judgment of the Munsif which was, as I have already indicated, based on the entire evidence in the case, without considering the evidence adduced in the case.
7. It seems to me that the contention of the appellant is well-founded.
8. It has been pointed out in several cases that a
comparison of handwriting 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 exports, A comparison of signature is a mode of ascertaining the truth which ought to be used with very great care and caution.
9. The observations which I have quoted are to be found in the case of Sarojini Dad v. Haridas Ghosh A.I.R. 1922 Cal. 12. The learned District Judge here had not the advantage of any expert evidence on the subject. He merely relied upon his impression as to the nature of the signature. Then again the learned District Judge gave entirely the go-by to the oral evidence adduced in the case.
10. Under these circumstances I think that the case has not been properly tried on the evidence and that the learned District Judge was not justified in setting aside the judgment; of the Munsif without even referring to the points upon which the learned Munsif's judgment was based.
11. Dr. Kanjilal who appeared for the respondents pointed out that if we did not accept the judgment of the learned District Judge as correct the result would be that the case should be sent back to the District Judge for re-trial. I think that this is the right course to be followed in the present case.
12. The result, therefore, is that the appeal is allowed, the judgment of the lower appellate Court is set aside, and the case is sent back for re-trial of the appeal in view of the observations made by me in this connexion.
13. The appellant is entitled to his costs in this appeal hearing fee, two gold mohurs.
14. It is needless to point out that the criminal proceedings fall through.
15. I agree.