SIR SHADI LAL:
This is an appeal from a decree of the High Court of Judicature at Allahabad, dated 23rd January 1933 which reversed a decree of the Subordinate Judge of Banda, dated 17th January 1929 and allowed the plaintiff's claim for possession of a village called Kalinjar Tirhati with mesne profits thereof. One Ganesh Prasad, a resident of Banda in the Province of Agra, was the proprietor of a large and valuable estate, including the village in dispute. He died on 10th May 1914 leaving him surviving a son, Bindeshri Prasad, who was thereupon recorded in the Revenue Records as the proprietor of the estate left by his father.
In execution of a decree for money obtained by a creditor against Bindeshri Prasad the village of Kalinjar Tirhati was sold by auction on 20th November 1924; and the sale was confirmed on 25th January 1925. Bindeshri Prasad then brought the suit, which has led to the present appeal, claiming possession of the property on the ground that the sale was vitiated by fraud. He died on 25th December 1926 and in March 1927 his widow, Giri Bala, applied for the substitution of her name as the plaintiff in the suit. She was admittedly the sole heiress of her deceased husband, and this application was accordingly granted. She also asked for leave to amend the plaint on the ground that under a will made by her father-in-law, Ganesh Prasad, on 5th April 1914 her husband got the estate only for his life, and that on the latter's death his life interest came to an end, and the devise in her favour became operative, making her absolute owner of the estate including the village in question. She accordingly prayed that, even if the sale be held to be binding upon her husband, it should be declared to be inoperative as against her rights of ownership. The trial Judge made an order allowing the amendment, and on 28th May 1927 recorded reasons to justify that order. But in July 1927 when the defendants in their additional pleas again objected to the amendment, the learned Judge framed an issue as to the validity of the amendment. He was, thereafter, transferred from the district; and his successor, who decided the suit, dismissed it on various grounds, and one of these grounds was that the amendment of the plaint changed the nature of the suit and should not have been allowed. The High Court, on appeal by the plaintiff, has dissented from that conclusion, and held that the amendment was necessary for the purpose of determining the real questions in controversy between the parties.
On behalf of the defendants, who are the appellants before their Lordships, it is contended that, while Giri Bala could continue the suit on the cause of action which accrued to her husband, she was not entitled to add to it an alternative cause of action which accrued to her in her personal capacity. It is however clear that the suit has been tried on the amended plaint, and that the parties have adduced all the evidence relating to both the causes of action. Their Lordships do not think that, even if there is any sub-stance in the objection raised to the amendment of the plaint, it should now be allowed to prevail, and all the time and labour expended on the trial of the suit should be thrown away. To prevent the mischief which may be caused by the reversal of the decree in a case of this kind, S. 99, Civil PC, 1908, provides that no decree shall be reversed or substantially varied, nor shall any case be remanded in appeal, on account of any misjoinder of parties or causes of action, or any error, defect or irregularity in any proceedings in the suit, not affecting the merits of the case or the jurisdiction of the Court. Now, the High Court has decided that the trial of the suit on the alternative causes of action is sanctioned by the law, and it is not suggested that the alleged misjoinder of the causes of action has affected the merits of the case or the jurisdiction of the Court. The issue is now narrowed down to the simple point whether, even if there was a misjoinder, their Lordships should, on that ground, reverse the decree granted by the High Court. The provisions contained in the Civil Procedure Code do not regulate the procedure of their Lord-ships in hearing appeals from India, but there can be no doubt that the rule embodied in S. 99 proceeds upon a sound principle, and is calculated to promote justice; and their Lordships are not prepared to adopt a course which would merely prolong litigation. Assuming that the High Court has erred in overruling the objection to the amendment and in upholding the trial on both the causes of action, they do not think that the trial should be rendered abortive, when the alleged misjoinder has affected neither the merits of the case nor the jurisdiction of the Court.
The next question for determination is whether Giri Bala has established her title to the village in dispute, and the answer to that question depends upon the factum and the validity of the will alleged to have been made, on 5th April 1914 by her father-in-law, Ganesh Prasad, upon which she founds her claim. Now, it may be stated at the outset that the original will has been lost, and its contents are proved by two copies, the authenticity of which has not been challenged. But before examining the terms of the will, it is necessary to give a brief history of certain circumstances which are said to have led to its execution. It appears that in 1898 Ganesh Prasad applied to the Government of his province to take over the management of his estate. In compliance with his request the Court of Wards took charge of the estate and continued to manage it until his death in May 1914. During the last four years of his life he made several attempts to get his estate released from the management of the Court of Wards, but these attempts were, unsuccessful. He had only one son, Bindeshri Prasad, but his relations with the son were strained. The father was displeased with the son because of his unsatisfactory character and extravagant habits. Accordingly he made a will at Allahabad on 4th August 1911 and got it registered there on 5th August. By this will he dedicated the whole of his estate to certain charitable and religious purposes, and appointed seven persons to be the executors of the will and the trustees to carry out the trusts. One of these seven persons was the Collector of his own district, Banda, and, at that time, the Collector was one Mr. Swan, a member of the Indian Civil Service. A copy of the will was sent by the testator to Mr. Swan, who was therefore cognizant of the execution as well as of the contents thereof. By this will the testator not only deprived Bindeshri Prasad of inheritance, but made no provision for his daughter-in-law, Giri Bala, or for any children who might be born to her.
In the beginning of 1914 there was an outbreak of bubonic plague at Banda, and Ganesh Prasad therefore left that place to live in Motihari, one of the villages comprised in his estate. He was at that time ill and was attended by a physician.
While he was living there, the will relied upon by the plaintiff is said to have been executed by him on 5th April 1914. It revoked the previous will of 1911 and made various devises which will be discussed hereinafter. Thereafter, when there was an abatement in the epidemic, he returned to Banda and died there on 10th May 1914. Thereupon, the Collector, Mr. Swan, took immediate steps to guard the rooms in which the deceased used to keep his valuables and important documents. In compliance with the direction of the Collector, one Pandit Ram Adhin Shukla, a Deputy Collector and Magistrate of Banda, went to the house of the deceased on the afternoon of 10th May and locked up both the rooms in that house which contained several locked boxes and valuable properties belonging to the deceased. On the following day he submitted his report in writing to the Collector.
The trustees appointed by the will of 1911 were, at that time, ignorant of the fact that it had been revoked by a subsequent testament, and considering that it became operative on the death of the testator, four of them made an application, on 3rd June 1914 to the High Court at Allahabad for probate of the will. They filed with their application a certified copy of that will, and stated that the original will was probably among the papers of the deceased in his house, of which the Collector had taken charge. On 29th June 1914 the High Court ordered citations to issue, and directed the Collector of Banda to transmit the original will to the Registrar of the Court. In the meantime the Collector, who knew of the application for probate pending in the High Court, had sent a Deputy Collector, Pandit Hari Har Nath Mutto, to the house of the deceased, and asked him to examine the papers in the rooms which had been locked on 10th May 1914. The Deputy Collector opened the locks of the rooms on 28th June, and made a search for the will of 1911. That will was not found there, but another will, dated 5th April 1914 was found by him. Upon that will he made an endorsement mentioning the exact place from which it was recovered, and also the names of the persons in whose presence it was found. He sent this will with his report to the Collector.
It must be stated here that the Collector was fully acquainted with the hand-writing of the deceased, who had been working under him as an Honorary Magistrate for many years, but he did not, on examining the signatures of the testator on the will, suspect their genuineness. Indeed, he wrote to the Registrar of the High Court on 11th July 1914 a letter stating that the will of 1911 could not be found among the papers of the deceased, but that a later will was found, revoking the earlier will. On 15th July, he sent the original will of 1914 to the Government Advocate at Allahabad and instructed him to oppose the grant of probate of the will of 1911, and to produce the will of 1914 in the probate proceedings then pending in the High Court. On the same date he wrote to the Commissioner of the Division, to whom he was subordinate, and also to the Legal Remembrancer to the Local Government, informing them of what he had written to the Government Advocate. He also stated that "there is no reason whatever to doubt the authenticity of the later will". As instructed by the Collector of Banda, the Government Advocate produced the original will in the High Court on 27th July 1914 when the probate case came on for hearing. The High Court directed the Registrar to take charge of the will pending further orders.
In the meanwhile, Bindeshri Prasad had not only lodged a caveat in the High Court against the grant of probate of the will of 1911, but also applied to the Revenue Officer for mutation, in respect of the property left by his father, to be effected in his favour, on the ground that the estate was ancestral and that he was entitled to it by right of survivorship. On 5th October 1914, a compromise was effected in the course of the mutation proceedings between Bindeshri Prasad on the one aide and the trustees under the will of 1911 on the other. One of the trustees, who was a resident of Allahabad, had died; and there were, at that time, five trustees who belonged to Banda, and the Collector, who was an ex officio trustee. These five trustees stated that the second will was genuine and bore the signatures of Ganesh Prasad, and they agreed to let Bindeshri Prasad remain in proprietary possession of the estate of his father "as provided in the second will of 5th April 1914". They also undertook to apply to the High Court to dismiss their application for probate. At the same time Bindeshri Prasad agreed to be responsible for all the debts of his father, and to create a trust of a house comprised in the estate to be used as adharamsala, and also to pay Rs. 300 per annum to defray the expenses of the Ram Lila festival at Banda.
On 12th October 1914, the trustees asked the Collector to transmit to the High Court their application embodying the compromise and praying that their application for probate of the will of 1911 might be dismissed, on the ground that it had been revoked by the later will of 1914. They also stated in their application that they were "completely satisfied that the second will of 5th April 1914, is perfectly genuine," and that it bears the signatures of Ganesh Prasad and the two attesting witnesses. On 7th November 1914, the High Court accordingly dismissed the application for probate, and this order of dismissal was followed in December by an order of the Revenue Officer sanctioning mutation of immoveable property in favour of Bindeshri Prasad instead of his father. On the conclusion of the proceedings in the High Court, Mr. Malcomson, the Government Advocate, applied to the High Court for the return of the original will of 1914 ; and it was made over to him on 13th January 1915. There is no doubt that the will was delivered by the High Court to Mr. Malcomson, but there is no evidence to show what happened to it thereafter. The plaintiff had proved that a search was made for the original document, but it has not been discovered. On these facts it must be held that the original will of 1914 has been lost, and the plaintiff is therefore entitled to produce secondary evidence of its contents. The secondary evidence consists of two certified copies of the original document, one copy was made when the original was in the custody of the Collector, and the second copy was obtained from the High Court. Neither the genuineness nor the accuracy of these copies has been challenged, but they prove only the contents of the document which purported to be the will executed by Ganesh Prasad on 5th April 1914. It is obvious that they cannot prove that the original, of which they are copies, was executed by the testator.
What is the evidence to prove its execution by Ganesh Prasad? That evidence is furnished by the testimony of the scribe Mahabir Prasad. This witness was, in 1914, acting as the agent of Ganesh Prasad in his village Motihari, and he states that Ganesh Prasad, who had come to live there in the beginning of 1914 owing to the outbreak of plague at Banda, gave him a draft of the will which he intended to execute, and asked him to make a fair copy of it. The witness accordingly prepared a fair copy, which was then signed by Ganesh Prasad and attested by two persons, Jugal Kishore, who was his physician and was treating him in his illness, and Piare Lal Dube who was his tenant. These persons having died could not be examined as witnesses; but the Deputy Collector, who recovered the original will in June 1914, satisfied himself after taking down their statements that it was the will of Ganesh Prasad. The certified copies show that the will bore two signatures of the testator, one in clearly legible handwriting, and the other in running hand; but there is nothing suspicious in that fact, as even the admittedly genuine will of 1911 was signed by him twice. There is also the evidence of several witnesses, who saw the original document immediately after its recovery and had no difficulty in recognizing both the signatures of the testator on it. It is significant that these witnesses included some of the persons who were trustees under the will of 1911, and there is no reason to impeach their veracity. Indeed, in their application submitted to the High Court on 12th October 1914, they, as stated above, had declared in unequivocal terms that they were familiar with the hand-writing of Ganesh Prasad, and had satisfied themselves that the signatures of the testator on the will of 1914 were genuine. The learned Judges of the High Court have repelled the suggestion that the trustees were actuated by improper motives when they accepted the genuineness of the will; and their Lordships, after examining the evidence to which their attention has been invited, concur in their conclusion.
Mr. Swan, the Collector of Banda, who was familiar with the hand-writing of Ganesh Prasad, also recognized his signatures on the will when it was sent to him by the Deputy Collector; and he informed all the persons concerned of the recovery of the document and of its genuineness. He also asked them to take steps in conformity with its provisions. This circumstance must be regarded as an important corroboration of the direct evidence in support of the genuineness of the will. It is true that unfortunately the relations between the father and the son were strained, and to prove that fact the appellants desired to produce in evidence certain documents which were on the record of the Court, of Wards. They asked the Court of Wards for an inspection of those documents, but their request was refused. An application has been made to their Lordships that they should direct the Court of Wards to transmit to the Registrar of the Privy Council the desired documents, or remit the case to India for the reception of the additional evidence. The refusal of the Court of Wards was perhaps not justified, but their Lordships do not think that any useful purpose would be served by postponing the determination of this appeal, as the enmity between the father and the son, which was sought to be proved by the additional evi