ANWAR HOSSEIN Vs. SECRETARY OF STATE FOR INDIA

JUDGEMENT

(1.) These appeals relate to a will alleged to have been executed by one Mahmud Shah alias Neku. He was a Mohamedan fakir and lived at Bhagalpur and at Bareilly and wandered about to other places. He had amassed a considerable amount of money and was engaged in lending it out. His estate has been valued now at Rs. 33,000. The will was executed on the 19th November 1894 at Bhagalpur and was registered, two days later. By it (it is said) he bequeathed all his property absolutely to the Empress of India. The original will is not forthcoming, but the Secretary of State for India produced a certified copy of the will from the Registration Office, and applied to the District Judge of Bhagalpur for letters of administration on behalf of the Empress of India on the 21 September 1000. The application has been opposed by two parties, first, by Anwar Hossein who claims to be a first cousin of the testator, and, secondly, by one Tulsi Das Banerji, who is the minor son of one Babu Gangadhar Banerji, and in whose favour the testator had executed a prior will. The District Judge of Bhagalpur finding the will to be true granted letters of administration to the Secretary of State, and both the objectors have appealed, Anwar Hossein in appeal No. 279, and Tulsi Das Banerji in appeal No. 280. Both the appeals have been heard together and are disposed of by this judgment.

(2.) It has not been disputed before us that the testator really executed this will. The appeal by Tulsi Das, however, raises this objection, namely, that the will was not duly executed. It appears that the will bears date 21 November 1894 and two of the witnesses, Mr. Taylor and Gauri Prasad, attested it dating their signatures the 19 November. Hence it is argue that they attested the will two days before it was execution. But the evidence of Mr. Taylor and the other witnesses proves that this difference is simply a mistake of date. The will was executed and attested by all the attesting witnesses at the same time, after the testator had affixed his seal to it and after Mehdilal had signed the testator's name for him. That was on the 19th November. Hence the 21 November is clearly a mistake. We find therefore that the will was duly executed, and this disposes of appeal No. 280, there being no other point urged before us.

(3.) Turning next to appeal No. 279, various objections have been raised by Anwar Hossein, whom we will henceforth style simply the objector. His first objection is that the Secretary of State has not laid a proper foundation for the admission of the copy of the will, by first proving that the original will has been lost or cannot be found. It appears from the evidence that the Government has made careful inquiries in various places to discover the original will, but without success. The evidence shows that the testator kept the will with himself. He died in the objector's house at Bareilly about five years after executing the will. A Policy officer of that place searched, and took possession of all the papers belonging to the testator that were found in the objector's house about a week after the testator's death, but no will was found among them. Other inquiries were made by a Deputy Magistrate, and the witnesses have given evidence so far as they know. The inquiries made by the Government appear to have been thorough, and the only suggestion which the objector can urge is, that Government has not examined one Amir Ali with whom the testator sometimes stayed at Bhagalpur. But the Deputy Magistrate did make such an inquiry and without success. We are therefore of opinion that there is no force in this objection. There is nothing in the circumstances to suggest any doubt against the case of Government. The Government had no good reason for suppressing the will after it had been registered, and we hold therefore that secondary evidence was rightly admitted.