RAJESHWAR MISSER Vs. SUKHDEO MISSIR

JUDGEMENT

(1.) This is an appeal filed by four sons of Hazari Missir (deceased) against a order of the Additional District Judge of Gaya, dismissing their application for probate of a document put forward by them as being the will of their deceased uncles, Sarwan and Balgobind.

(2.) The application was opposed by respondent Sukhdeo Missir who is the son of Padarath Missir another brother of Hazari Missir. The document in question purports to make a disposition of the property of Sarwan and Balgobind Missir in favour of six sons of Hazari. Sarwan and Balgobind died some time in the year 1928. The present application was filed on 15-9-1940. by the four applicants, the other two sons of Hazari Missir having died in the mean time. The application was opposed on the grounds, firstly, that the document is not a genuine document executed by Sarwan and Balgobind Mis-sir, secondly, that it is not a will at all but is a, deed of partition, thirdly, that, at the time of the execution of the document, they were not in a sound disposing state of mind, and, fourthly, that, at the time of the execution of the alleged will, they were joint with Padarath Missir and as such had no right to execute the will. In an application for probate, the Court has no jurisdiction to enquire into the nature of the rights of the testator in the property covered by the will and, so, the last point was rightly ignored by the learned Additional District Judge, and he has considered only whether the document was in fact executed by the alleged testators, whether, at the time of the execution of the document, they were in a sound disposing state of mind and whether the applicants are entitled to probate. He decided the first two points in favour of the applicants but, on the third point, he has decided against them, holding that the document in question is not a will at all. Hence, the present appeal.

(3.) The alleged will (EX. 1) is a very unusual kind of document. It is styled by the executants as a deed of partition and has been registered as such, and the first point which arises is whether, supposing it to be a will, it has been duly executed by the testators and whether they were in a sound disposing state of mind. As regards both these points, there is very little direct evidence, because both the scribe and the three attesting witnesses are dead. The only acceptable evidence on the point is the evidence of Rajeshwar Missir (applicant 1), a man aged about fifty years--a witness whose presence it would be natural to expect at the time of the execution of this document. He deposes that he was present at the time of the execution and attestation of the will. Balgobind Missir signed the will for himself and, at the request of Sarwan, on behalf of Sarwan. The attesting witnesses then signed the will in the presence of the testators. Another witness, Nageshwar, was examined on the point. He gave his age as fifty years, but in view of the Court's estimate of his age as twenty eight years it is not likely he can give any acceptable evidence on the point. Further, from his cross-examination, it appears that he is illiterate and unable to identify the document. On the other side, Sukhdeo Missir examined himself and deposed that his father, Padarath, did not separate from his three brothers, and that the applicants case that he did is false. He further deposes that Balgobind and Sarwan were addicted to ganja and bhang and had no capacity to understand business. Similar evidence was given by one other witness, Lachmi Singh, who, however, confined himself to saying that Sarwan and Balgobind were addicted to ganja and bhang but did not go so fat as to say that they were unable to understand ordinary business transactions. The evidence regarding the jointness or separation of the brothers is really irrelevant in this proceeding, and that regarding the state of mind of these two persons was rightly regarded by the Additional District Judge as unsatisfactory. In this state of the evidence, while not rejecting the evidence of Nageshar Missir, the Additional District Judge relied on the presumption of due execution and attestation which, under the provisions of Section 90, Evidence Act, he was entitled to draw. The document is more than thirty years old. It is a registered document and it comes from proper custody. The presumption was, therefore, justified. The section provides that, where these conditions are satisfied, the Court may presume that the signature and every other part of such document, which purports to be in the handwriting of any particular person, is in that person's handwriting, and, in the case of a document executed or attested, that it was duly executed and attested by the persons by whom it purports to be executed and attested. Under this section, therefore, it could legitimately be presumed that the document was a genuine one executed by Sarwan and Balgobind by affixing their signature thereto. The only doubt that could arise is whether, in view of the fact that at the time of the execution of the document they believed themselves to be executing a deed of partition, it can be presumed that the document was attested in the way that the law requires a will to be attested. Under Section 63, Succession Act, in addition to the signature or mark of the testator, it is necessary that the will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the will or has seen some other persons sign the will in the presence and by the direction of the testator, or has received from the testator a personal acknowledgment of his signature or mark, or of the signature of such other person and each of the witnesses shall sign the will in the presence of the testator. Have these requirements been complied with in the presents case? On an examination of the document, we find that there were three attesting witnesses. So far as the number of the witnesses goes, therefore, the requirements of this section are satisfied. Each endorsement is stated to be "on the admission of the executants." This satisfies another requirement of the section. As regards the affixing of the signature of the attesting witnesses in the presence of the testators, there is the fact that this is the ordinary mode of attesting a document and is the mode by which attestation is defined in Section 3, T.P. Act. If, therefore, under Section 90, Evidence Act, the presumption of due execution is drawn, it necessarily amounts to a finding that the executing (attesting?) witnesses signed in the presence of the testators. This conclusion is corroborated by the evidence of Rajeshwar Missir and the indications of the document itself as appearing from the position of the signatures of the testators and of the attesting witnesses and the nature of the pen and ink used by them. I would, therefore, take the last requirement of Section 68, Succession Act, to be satisfied and would hold, that, supposing the document to be a will, it has been properly executed and decide as such.