VINAYAK NARAYAN DATAR Vs. SAKHARAM LAXMAN MAHAJAN

JUDGEMENT

(1.) THIS is an application for leave to appeal to their Lordships of the Privy Council against the decision of a Bench of this Court, dated 23rd April 1927, in Misc. Appeal No. 42 of 1926 vide A.I.R. 1927 Nag. 264-Ed.

(2.) IT is not disputed that the value of the subject-matter or property involved exceeds Rs. 10,000, and the only question is whether, in view of the judgment of this Court being an affirming one, any substantial question of law is involved. We accept the position that the phrase "substantial question of law" in Section 110, Civil P.C., means a substantial question of law as between the parties to the proceeding and not merely one of general importance. Even so, however, we can find not the slightest reason for supposing that as between the parties to the proceeding any substantial question of law is involved in the present case. As is clear from the judgment of the Bench, that judgment was wholly concerned with a pure finding of fact as to whether the will in question had been executed or not. The counsel for the applicant has urged that ground A, which he mentions as one of the matters to be agitated before their Lordships of the Privy Council, involves a question of law. That ground is to the effect that the Bench of this Court erred in law in starting from the evidence of the handwriting expert. It is true that, in paras. 4 and 5 of the judgment of this Court, the Bench was of opinion that the evidence of Brewster (D.W. 11) was to be preferred, but the decision on the question of fact involved rested on many other factor's as well and it was indifferent whether the Court considered first the handwriting expert's - evidence or any of these factors. We have been referred to certain remarks made by Ayyar, J., in In re B. Venkata Row [1912] 36 Mad. 159, (at p. 165), as to the comparatively minor importance of the evidence of handwriting experts, but what that dose tin reality laid down was that an accused should not be convicted of forgery upon the uncorroborated testimony of such an expert. We have not the slightest hesitation in agreeing with the said dictum, but this, in effect, gives no real help to the applicant in the circumstances of the present case.

(3.) IT has further been suggested, on the strength of the decision in Aulia Bibi v. Alaud-Din [1906] 28 All. 715, that this Court should have ordered probate of the draft of the will if it was held that the will itself was not proved. In the case in question there was convincing evidence that the will had been drawn up in accordance with instructions given by a Mahomedan lady concerned in the case. The circumstances of this case are wholly different and there has not been any proof that the alleged testator had anything to do with the preparation of the draft in question. On the contrary, it seems to have been prepared by a coterie of the present applicant's party in the hope that the dying man could be induced to execute it. The case is, in short, one in which, pure questions of fact are involved and in which we cannot grant leave as craved for. The application is accordingly dismissed. The applicant must bear the non-applicant's costs. We fix pleaders fees at Rs. 50.