KABHAI PAHADSING Vs. BHUPAT LALLU

JUDGEMENT

(1.) Two questions arise for decision in this second appeal. The first question is as to whether the will dated 10th March 1950 was or was not executed in accordance with the requirements of law. The second question is as to whether the learned first appellate Judge had applied the correct principles of law for the purpose of satisfying his conscience that the aforesaid document was the will of the testatrix.

(2.) The facts necessary to be mentioned in order to dispose of the aforesaid two questions are as follows. It is an admitted fact that the suit properties belonged to one Jivi. Jivi died on 13th March 1950. Both the lower Courts have found that plaintiffs who are appellants are the nearest heirs of Bai Jivi and as such were entitled to inherit her properties. The original defendant No. 1 was the son of a maternal uncle of Bai Jivi. He propounded a will dated 10th March 1950 by which he was constituted the sole legatee to the estate of Bai Jivi. It appears that Bai Jivi had mortgaged some of the suit properties with defendant No 2. The latter made an application No. 557 of 1949 under the Bombay Agricultural Debtors Relief Act 1947 for adjustment of that mortgage debt. Bai Jivi died during the pendency of this application and on her death both plaintiffs and original defendant No.1 applied to the B. A. D. R. Court and claimed to be brought on record as Jivis heirs. The B.A.D.R. Court declined to decide the question and directed the parties to get the dispute settled by a civil Court. In accordance with this direction plaintiffs instituted the present suit No. 41 of 1955 from which this second appeal arises. It that suit defendant No. 1 propounded the will aforesaid. Two main issues were raised by the trial Court for decision. The first issue as to whether plaintiffs were the nearest heirs of Bai Jivi was decided in plaintiffs favour. That finding is not now disputed by any of the respondents. The second issue related to the proof of the will. The learned trial Judge found that the will had been proved and on the basis of that finding he dismissed plaintiffs suit. However the learned Judge did not award costs to defendants. Plaintiffs preferred Civil Appeal No. 105 of 1956 from the decree and the two respondents filed cross-objections against the order regarding costs. The same two issues were raised for decision in the first appellate Court and the learned appellate Judge found that plaintiffs were the nearest heirs but that defendant No. 1 had proved the will. Consequently he dismissed plaintiffs appeal. He also came to the conclusion that the order regarding the refusal of costs was not proper and therefore he set aside that order and awarded costs of the trial Court to defendant No. 1.

(3.) Now so far as the will is concerned some of the findings recorded by the learned Assistant Judge who decided the first appeal were as follows. Exhibit 34 is the will of Bai Jivi. That will bears the thumb mark of Bai Jivi and it has been subscribed to be so by witness Vadilal Tribhovan. The evidence showed that Bai Jivi was capable of signing. But the learned Judge found that at the time of execution of the will Bai Jivi had lost her eye-sight because of cataract; that therefore Bai Jivi put her thumb mark on the will and Vadilal Tribhovan subscribed the same at her request. The learned Judge also found that at that time the scribe Muljibhai Shamalbhai was present and that Muljibhai attested the document in the presence of Bai Jivi. Thus the learned appellate Judge found that Bai Jivi had put her thumb mark on the will in the presence of Muljibhai Shamalbhai and that the latter had attested the document in her presence. Therefore Mr. Patel does not dispute that the aforesaid document bears the thumb impression of Bai Jivi and is attested by Muljibhai as required by law. But Mr. Patel challenges the validity of the attestation of the other two attesting witnesses. He argues that though these two witnesses purported to attest the document their attestation did not fulfil the requirements of law. The learned appellate Judge found that none of those other two attesting witnesses was present at the time when Jivi put her thumb mark and witness Vadilal subscribed it. These two attesting witnesses were Himmatsing Ramsing and Hathising Pratapsing. The learned Judge however found that those two witnesses the scribe Muljibhai Shamalbhai defendant No. 1 and witness Gemalsing defendant No. 1s power of attorney holder and the Registrar were present at the time when the other two attesting witnesses attested the document. The two attesting witnesses having attested the will after Bai Jivi had already put her thumb mark on the same it is agreed by both the sides that in order to succeed defendant No. 1 must prove that both or any of the aforesaid two witnesses received from the testatrix a personal acknowledgment .....mark as required by clause (c) of sec. 63 of the Indian Succession Act 1925 (No. XXXIX of 1925). Now the finding which has been recorded by the learned appellate Judge on this subject is to be found in paragraph 6 of his judgment. The evidence on this topic has been summarised by the learned Judge as follows. Then Hathising Pratapsingh and Himatsing Ramsing have said in their evidence at Exs 37 and 54 respectively that both of them were asked by Bai Jivi to attest the will and hence they did it. In a later part of his judgment the learned appellate Judge says that he accepted the above evidence. The contention of Mr. Patel is that the aforesaid evidence does not establish that the two witnesses had received a personal acknowledg- ment from Bai Jivi of her thumb-mark. The argument is that the acknow- ledgment which was made by Bai Jivi was of her will and not of her thumb-mark. According to Mr. Patel the law requires that the acknow- ledgment must be of the thumb-mark. He argues that as the acknowledg- ment was not of the thumb mark but of the will the statute had not been complied with. I am unable to agree with this contention of Mr. Patel Apart from authorities which as I shall presently show are opposed to the contention of Mr. Patel the relevant part of clause (c) of sec. 63 of the Indian Succession Act which I have already extracted above shows that an acknowledgment of signature or thumb mark does not require to be in express terms. There is nothing in that part of the section which enjoins that the communication of acknowledgment must be by express words and that it cannot be by implication. The Legislature probably insists upon the requirement of attestation to guard against spurious wills from being got probated in Courts. A will comes to be propounded only after the death of the testator and therefore at the time of the proof of the will the testator will not be available either to admit or deny the execution of the will. Therefore the requirements laid down by the Legis- lature for the due execution of the will must be insisted to be strictly complied with However at the same time whilst great caution may be necessary before accepting the proof of a will and that caution is expressed in judicial decisions by stating that a will must be proved to satisfy the conscience of the Judge it may be well to remember that in construing the relevant part of the section the Legislatures in its wisdom has not prescribed any particular form or words in which acknowledgment of a signature or thumb-mark must be made by the testator. The section does not say that the conscience of the Court can stand satisfied only if a particular form or particular words are used by the testator. All that the Legislature has prescribed is that there must be an acknowledgment that the acknowledgment must be personal and that it mast be of the signature or thumb-mark. But whilst so saying the Legislature has not stated that the admission of signature or thumb-mark or its avowal must be in express terms. Whether a signature or thumb-mark has or has not been acknow- ledged within the meaning of the statute Must depend upon the circums- tances of each case. If the conscience of the Court is satisfied that the signature or thumb-mark was so acknowledged even impliedly there is nothing in the section which compels the Judge not to accept proof of the will. There is nothing in the section which compels the Judge to hold that the will has not complied with the requirements of law by reason of the fact that his conscience has to be satisfied in a particular case not by direct but by indirect evidence as a result of an inference to be drawn from facts proved to the satisfaction of the conscience of the Judge. For the above reasons I have come to the conclusion that the mere Fact that acknowledgment by Jivi was in the form that the document was her will and that it was not in the form that it bore her thumb-mark is not in itself a circumstance which must lead to the conclusion that the will was not executed in due form. I am not dealing with a case where the docu- ment acknowledged as a will was one on which there was neither a signature nor a thumb-mark at the time when the acknowledgment was made. In such a contingency the acknowledgment of the document as a will may be regarded to be futile and ineffective. However the present case is not of that kind. There is ample proof that the document bore Bai Jivis thumb-mark when Jivi acknowledged it to be her will and before the two witnesses attested the document. This is deposed to by not only Vadilal the subscriber but also by the first attesting witness Muljibhai the scribe. Therefore those authorities which require that when the acknowledgment is in the aforesaid form namely that the docu- ment on which the attesting witnesses are asked to sign is acknowledged to be the will of the testator the Court must be satisfied that the signature or thumb-mark was already on the document do not apply to the facts of the present case.