BRAHMADAT TEWARI Vs. CHAUDAN BIBI

JUDGEMENT

(1.) This appeal is directed against the grant of Probate of a Will alleged to have been executed by one Ram Charali Tewari on the 19th March 1893. The Will was registered six days later. The testator died on the 10th August 1911. On the 3rd May 1912 the application for Probate was made by his grand-daughter, the sole surviving beneficiary under the Will. The caveat or is a brother of the testator. There is no room for doubt on the evidence that the Will was executed by Bam Charan Tewari. The only substantial question in controversy is, whether it was duly attested. The document on the face of it purports to have been attested by thirteen witnesses inclusive of the scribe, of whom five signed their names as witnesses, and eight affixed to their signatures the words "on the admission of the executants." Six of the thirteen witnesses are proved to be dead; two have been examined and have proved hostile to the petitioner; three others have not been examined on the allegation that they too were hostile; the whereabouts of the remaining two witnesses have not been traced. The two attesting witnesses who have been examined are constrained to admit that they signed the Will as witnesses. One of them, however, could not recollect whether he had seen the testator sign. The other stated that he had signed as an attesting witness at the request of a third person, who assured him that the testator had left the Will in his custody and desired the witness to attest. This statement is remarkable, as the witness did not affix to his signature, as seven other witnesses did, a note that he had signed on receiving an acknowledgment of execution by the testator.

(2.) In this state of the evidence, it has been argued by the caveat or that as the testimony of the attesting witnesses who have been examined, does not establish full compliance with the statutory requirements, Probate should not be granted. In our opinion, this contention cannot prevail, as there is ample reliable evidence on the record to show that the Will was duly executed and attested. Brij Behary Tewari who was present at the time of the execution of the Will, though he did not sign as an attesting witness, states in his examination-in-chief that when the Will was signed by the testator, Mahabir Tewari, Balmuknnd Tewari, Sheo Shankar Upadhya and Ramlal Upadhya were present there, that the witnesses and the testator signed, that the witnesses signed in the presence of the testator and in the presence of each other, and that the testator s signature was made in his presence. Two of these attesting witnesses, namely, Balmukund Tewari and Ramlal Upadhya are proved to be dead; the other two, namely, Mahabir Tewari and Sheo Shankar Upadhya have been examined, and, as already stated, have deposed practically in favour of the objector. This, however, does not compel the Court to pronounce against the Will. It was ruled by this Court in the case of Nubo Kishore Doss v. Joy Doorga Dossee 22 W. R. 189 that the mere fact that attesting; witnesses to a Will have repudiated their signatures does not invalidate the Will, if it can be proved by evidence of a reliable character that they have given false testimony. To the same effect is the decision of the Judicial Committee in (Hooper v. Bockett (1846) 4 Moore P. C. 419 : 10 Jur. 931 : 13 E. R. 365. The principle is well settled that when the evidence of the attesting witnesses is vague, doubtful or even conflicting upon some material point, the Court may take into consideration the circumstances of the case and judge from them collectively whether the requirements of the statute were complied with, in other words, the Court may, on consideration of the other evidence or of the whole circumstances of the case, come to the conclusion that their recollection is at fault, that their evidence is of a, suspicious character or that they are willfully misleading the Court, and accordingly disregard their testimony and pronounce in favour of the Will. [Young v. Richard (1839) 2 Curt. 371 and Burgoyne v. Showier (1844) 1 Rob, 5] In the case before us, there is no reason why the testimony of Brij Behary Tewari should not be accepted in its entirety. That evidence shows that Balmukund and Bam Lal were present when the Will was signed by the testator and that they signed in his presence and in the presence of each other. This is confirmed by the fact that against the signatures of Balmukund and Ramlal, there is no note that they had signed on receiving an acknowledgment of execution from the testator; and the same remark applies to Mahabir and Sheo Shankar, both of whom are stated by Brij Behary to have been present when the Will was executed, which is consistent with the fact that their signatures appear as those of attesting witnesses, without any note or qualification as in the ease of the other witnesses. This is sufficient to show that the requirements of Section 60 of the Indian Succession Act, which has been made applicable to the Wills of Hindus by Section 2 of the Hindu Wills Act, were substantially complied with. Under that section--we refer to so much of it only as is necessary for our present purpose--the first requirement is that the testator shall sign the document; the second is that his signature shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a Will; the third is that the Will shall be attested by two or more persons, each of whom must have seen the testator sign, and each of the witnesses shall sign the Will in the presence of the testator; but it shall not be necessary that more than one witness be present at the same time. In the present case, there is no question as to the first two requirements; the signature of the testator, which has been proved by Brij Behary, appears eight times on the document which is composed of sheets pasted in succession and made into a roll. But as regards the third requirements, it is urged that Brij Behary does not say that the witnesses saw the testator sign and that the testator saw the witnesses sign. It is not necessary, however, that affirmative evidence should be forthcoming that the testator did, as a matter of fact, see the attesting witnesses put their signatures or that the attesting witnesses did actually see the testator sign the document. It is enough if the circumstances show that their relative position was such that they might have seen the execution and the attestation respectively, or as Walde, J., said In re Trimnell (1865) 11 Jur. (N.S.) 248, the true test is whether the testator might have seen, not whether he did see, the witnesses sign their names [Newton v. Clarke (1839) 2 Curt. 320] In cases of this description, as was pointed out by this Court in Sibo Sundan Debi v. Heinangini Debi 4 C. W. N. 204 on the authority of Wright v. Sanderson, Sanderson, In re (1884) 9 P. D. 149 : 53 L. J. P. 49; 50 L. T 769 : 32 W. R. 560; 48 J. P. 180, every presumption will be made in favour of due execution and attestation in the case of a Will regular on the face of it and apparently duly executed [Lloyd v. Roberts (1858) 12 Moore P. C. 158 : 14 E. R. 871, Harris v. Knight (1880) 15 P. D. 170 at p. 179; 62 L. T. 507 and In the goods of Peveret (1902) P. D. 205; 71 L. J. P. 114 : 87 L. T, 143] As Foy, L. J., observed in Wright v. Sanderson, In re Sanderson (1884) 9 P. D. 149 : 53 L. J. P. 49; 50 L. T 769 : 32 W. R. 560; 48 J. P. 180, the Court of Probate has long been accustomed, rightly and wisely, to give great weight to the presumption of due execution arising from the regularity ex facie of the testamentary paper produced, where no suspicion of fraud has occurred.

(3.) In our opinion, the evidence in this case establishes beyond reasonable doubt that the Will was duly attested, and as we have already said, we feel no doubt whatsoever that it is a genuine instrument.