R H E OATS Vs. KING EMPEROR

JUDGEMENT

(1.) This is an appeal against the conviction of and sentence passed upon the appellant under Section 193 of the Indian Penal Code by the Third Presidency Magistrate of Calcutta by his judgment dated the 10 February, 1923.

(2.) The facts which gave rise to the prosecution of the appellant under Section 193, Indian Indian Penal Code, out of which this appeal has arisen, shortly stated, are as follows : One James Robert Edmond George propounded the will of his sister, Ellen Lawinia Price, bearing date the 9 October, 1912, in testamentary suit No. 17 of 1922 on the Original Side of this Court. The testatrix died on the 1 March, 1922, at No. 49, Wellesley Street in Calcutta being then about 71 years of age and by her will she bequeathed the whole of her estate, subject to the payment of certain legacies, to her brother George whom she also appointed sole executor. Among the legacies was one of Rs. 2,000 to her sister, Mrs. Mendietta, who filed in this Court a caveat against the grant of probate of the said will. The will was in the handwriting of the son of George, and it bore the signatures of two attesting witnesses, namely, the signature of the appellant, E. Oates, described as an Assistant in the firm of A.J. Main and Co. and residing at 86, Dharamtola Street, and of one Peterson, Assistant in the firm of Kilburn and Co. and also residing at 86, Dharamtola Street. The said testamentary suit was heard before Mr. Justice Buckland, and the propounder, George, gave evidence in that suit, in the course of which he stated, among others, as follows: A day or two before the 9 October, 1912, the propounder, George was asked to attend at his sister's house at No. 86, Dharamtola Street, for the purpose of witnessing the execution of her will and between 6 and 7 p.m. on that date he attended at her residence, where he found one Mrs. Pybus and her son Mr. Pybus, and one Allen, who was a dairy man and who used to supply his sister with milk. He asked his sister if these were the witnesses. She said, No, there are others coming in. She sent word to Oates and Peterson, who were living in the same house and they appeared on the scene. George knew Oates but he had only seen Peterson once or twice; after a few formal words, the testatrix brought out the paper on which her will was written. She said it was her death warrant, and after stating that it was her last will and testament the testatrix ssigned it, initialling the alteration on the first page. All the persons present saw her sign and after she had done so, Oates and Peterson signed in turn, at the request of the testatrix as attesting witnesses. Pybus and Allen were about to sign the will, when George said, there was no need for more than two persons to sign, and they thereupon refrained from signing the will. After the will had been so signed, Oates and Peterson went, away Mrs. Pybus and her son also left, leaving Allen and George who left shortly afterwards.

(3.) At the trial before Mr. Justice Buckland, in addition to George, Pybus and Allen both gave evidence and they supported the story of George. The appellant, Oates, was called as a witness in the said suit and his evidence was to the effect that on one occasion George, with whom he was snot acquainted at the time, came upstairs to him and said that his sister was in a very serious condition; she was dying, and would he (Oates) mind signing the will as a witness? Without waiting, Oates said that if it was a serious thing, he would sign at once. He signed the document and thereafter went downstairs and that was all he knew about the will. He did not see the testatrix on that day and the testatrix did not sign the will in his presence.