TMI Blog1927 (11) TMI 3X X X X Extracts X X X X X X X X Extracts X X X X ..... is second son. 3. That petition was sent for enquiry to the Sub-Divisional officer of Bihar, who, on June 1, 1913, called upon Harangi Singh to state what he has to say to these allegations in the petition, fixing June 16 next for hearing. On that date a petition for two weeks' time was filed on the ground that Harangi Singh 7 had gone on a pilgrimage to Jagannathji (Puri), Time was allowed till July 1, but on that day the enquiry was not further Proceeded with inasmuch as on the day previous, viz., June 30, 1913, application had been made to the District Judge of Patna on behalf of Gyan Prakash Singh for probate of the will alleged to have been executed by Alak Prakash on February 2, 1913. A general citation was affixed to the house of the deceased and another to the Court house in July. Affidavits by two out of the twelve attesting witnesses to the will were filed on July 30, 1913. Notices were issued to the widow and daughter of the testator and a report was made by the serving officer showing that service of the notices was acknowledged on behalf of a Thakurani Kuer for self and as guardian of Ramanandi Kuer by one Awadh Bihari Singh, who described himself as the sis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the minor Ramanandi Kuer for revocation of the probate, on two grounds principally, viz., (1) that citations were not served either on her or on her mother, Thakurani, before the grant of probate, and (2) that the will was a forgery. Objections were filed on behalf of Kalawati Kuer and issues were framed, of which two only are material for present purposes, viz.: (1) Was no citation served upon the plaintiff, i.e., Ramanandi Kuer Had she no knowledge of the probate proceedings? Was she not properly represented in the probate proceedings? (2) Is the will propounded by the opposite party, i.e., Kalawati Kuer, the widow of (Gyan Prakash, genuine or otherwise? 8. There has been some divergence of opinion in the Courts in India as regard the law and procedure governing cases for revocation of probate, due in part to the introduction into Indian practice of the difference in English law between the grant of probate in common form and probate in solemn form. It is worse than unprofitable to consider how far, if at all, that distinction has been incorporated into Indian law. It has often been pointed out by this Board that where there is a positive enactment of the Indian legisl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... failed on the first issue, that would not preclude her from proceeding to prove her second ground, viz., that the will was forged, and the probate would stand or fall, according to the result. 14. It is obvious that the question of onus of proof is therefore of great importance in this case, and the District Judge as well as the High Court on appeal rightly lay stress as to the onus on each of these two issues, which might have been tried separately but wore not so in fact, as evidence was given by each party in support of their respective cases on both issues together and not separately. Their Lordships agree with the Courts below that in the circumstances of this case neither party was prejudiced by the procedure adopted. 15. In considering the evidence on each of the two issues set out above, their Lordships bear in mind that the application for revocation was made eight years after the grant, and after the persons principally concerned in the original proceedings, viz., Harangi Singh, Gyan Prakash, Thakurani Kuer and most of the witnesses to the alleged will were dead, and that in accordance with the practice of the Indian Courts, some portion of the original records of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orrect to say, as Mr. Justice Das does, that the District Judge was satisfied that citation was properly served on Thakurani. It would be more accurate to say that though the District Judge was doubtful as to the actual service, he did not feel justified in definitely finding that she had not been served with the citation, In other words the District Judge found himself unable to come to any conclusion whether the notice was actually served upon her or not, The High Court considered that the failure on the part of the plaintiff to examine Awadh Behari was fatal to her case that no citation was served on Thakurani. 20. This renders it necessary to examine the position of Awadh Behari. 21. Mr. Justice Das was not prepared to hold that Awadh Behari was related either to Thakurani, as defendant's witnesses deposed, or to Harangi Singh, as plaintiff's witnesses said; but he concluded that Awadh Behari was more or less under the control of the plaintiff and should have been called by her as a witness on her behalf, chiefly for the reason that there was evidence of her own witnesses on two points (1) that at the dates when these proceedings were going on before the District ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rst issue, upon the defendant. It was candidly admitted by counsel on the latter's behalf that if it was held that the onus was on her to prove the genuineness of the will, he could not contend that she had discharged that onus. He rested her case on the ground that the onus was on the plaintiff to prove that the will was forged, and that the plaintiff's evidence fell short of proving that the will was a forgery even if the circumstances connected with it might appear suspicious. 28. Their Lordships have, however, come to the conclusion that apart from any question of onus, the plaintiff has succeeded in proving that the will is not a genuine document for the reasons given below. 29. It is a circumstance which cannot be ignored that though care was taken to obtain as many as fourteen attesting witnesses to the will, the simple precaution of getting the will registered at the local registration office was not adopted, even though registration of wills is not compulsory. Nor can it be considered anything but unusual and suspicious that no doctor or lawyer attested this will, specially in view of its provisions practically disinheriting the widow and the only daughter an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Temple Medical School. 33. On the defendant's side a number of witnesses were called to prove that Alak Prakash came to Patna on February 4 or 5 that while there he was treated only by hakims and not by any doctors, and that he did not stay in that quarter of Patna which is called Jhauganj but in quite a different quarter called Badshahganj. 34. Both the District Judge and the High Court have disbelieved these witnesses for the defendant and found that Alak Prakash rented a house in Jhauganj-Patna, and was treated, not by hakims, but by Dr. Sen and Dr. Barat. The District Judge came 1927 to the conclusion upon the evidence that Alak Prakash was at Patna before February 2, and therefore that the story of his A having executed the will at Bihar on that date was false. 35. The High Court, however, came to a different conclusion, and Mr. Justice Das says with regard to that part of the case :-Lord~8inha The critical question then is, did Alak Prakash come to Patna before February 2, 1913? On this point the petitioner relies on the evidence of Dr. J.C. Sen and Dr. Barat.... Dr. Barat is an Assistant Surgeon and is a witness of undoubted position and respectabilit ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
