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1945 Supreme(SC) 6
Privy Council At Calcutta
Sir John Beaumont, Sir Madhavan Nair, Goddard, Wright , Justice Lords Thankerton, JJ.
Manindra Chandra Lala -Appellant
Versus
Mahaluxmi Bank Limited -Resopndent
Privy Council Appeal No. 9 of 1943; Bengal Appeal No. 4 of 1940
Decided On : 05-02-1945
Harold Shephard, W.W. Box and Co., R. Parikh, J.M. Parikh , Sir H. Cunliffe, J.M. Pringle
The court held that the execution of a will can be proved by comparing it with an admittedly genuine document executed on the same day under Section 73 of the Evidence Act, and that trial court findings on witness credibility should be upheld unless sufficiently discredited.
Headnote:(A) Evidence Act - Section 73 - Comparison of signatures - Probate of Will - Execution and Attestation - Comparison of a disputed document with an admittedly genuine document - Where the nature and age of the paper, the ink, and the signatures of a will are substantially similar to those of a genuine deed executed on the same day, the execution of the will is proved - Findings of the trial court on the credibility of witnesses should not be interfered with by the appellate court without sufficient reason.
(B) Probate - Delay in application - Where the necessity for probate only arises after the death of a person who held a prior right or power, such as a widow with the power to adopt, the delay in filing the application does not create a suspicion that outweighs evidence of execution.
Facts of the case:
An application for probate was filed for a will executed two days before the testator's death. On the same day, the testator had executed a genuine deed of authority conferring power of adoption on his widow. The will provided that if no son was adopted, the son of the testator's brother would inherit the estate. The widow died without exercising the power of adoption, and the brother took possession of the estate, subsequently granting rights to a bank. The application for probate was delayed until after the widow's death.
Findings of Court:
The court found that the execution and attestation of the will were proved. The comparison of the will with the genuine deed of authority under the Evidence Act showed identity in the nature and age of the paper, the ink, and the signatures. The trial judge's findings on the credibility of the witnesses were deemed correct and should be restored.
Issues: Whether the will was duly executed and attested, and whether the delay in applying for probate and the conduct of the parties created sufficient suspicion to invalidate the will.
Ratio Decidendi: Under Section 73 of the Evidence Act, the court may compare a disputed signature with a genuine one. The striking similarity in paper, ink, and signatures between the will and a genuine deed executed on the same day strongly supports the will's authenticity. Furthermore, an appellate court should not reverse a trial court's finding of fact regarding witness credibility unless there is a sufficient reason to do so.
Result: Appeal allowed.
Legal Category Hierarchy
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practice and procedure
- probate
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evidence
- comparison of signatures
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family law
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hindu law
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dayabhaga school
- succession
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dayabhaga school
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hindu law
Lord Thankerton.-
This is an appeal in forma pauperis by special leave from and judgment and decree of the High Court of Judicature at Fort William in Bengal, dated 27th July 1937, which set aside the judgment and decree of the District Judge of Chittagong, dated 20th November 1934, and dismissed the appellant's application for probate of the will of his paternal uncle, Girija Kripa Lala, who died on 1st January 1904. In his application for probate, filed on 9th November 1933, the appellant, as executor, propounds a will dated 80th December 1903, two days before the death of the testator. The District Judge found for the execution and attestation of the will, and the High Court reversed this decision on a pure question of fact. The testator and his younger brother, Saroda, who is the father of the appellant, constituted a joint Hindu family governed by the Dayabhaga school of Hindu law. The testator left a widow, Srimati Bama Sundari, but no issue. At that date, the appellant, who was then two or three years old, was the only son of Saroda, though some years later another son was born to Saroda, who did not survive infancy. It is admitted that on the same 30th December 1903, the testator executed a deed of authority conferring on his widow power to adopt
"three sons successively, one by one, one after the death of another, from among the existing and future sons of my said full brother Saroda."
It is admitted that the testator signed this deed which was written by Srimanta Ram Lala, who had been in the service of the family for many years, and was then its chief clerk, and that it was duly attested by five persons: (1) Ramesh Chandra Sen, a Small Cause Court Judge who died in 1922; (2) Saroda himself; (3) Chandra Mohan Dastidar, the testator's brother-in-law, who died about 1925; (4) Digamber Bhattacharjee, who was a pleader and the testator's family lawyer, who had previously been tutor to Saroda; and (6) the testator's doctor, Dr. Beni Mohan Das. The deed was registered on 5th February by the widow, who was identified by the witness Ishan Chandra Chowdhury. With the exception of Saroda, the names of the scribe and the attesting witnesses appear on the will in the same capacities. The material clauses of the will are as follows ;
"(1) I am entitled to a moiety i. e., 8 annas share of the entire 16 annas of my ancestral and self-acquired immovable and moveable properties and of the moneys of the money-lending business etc., and I have been the owner-in-possession in the said manner in Ejmal. My brother Sriman Saroda Kripa Lala has been the owner-in-possession of the remaining 8 annas share.
(2) I have no son or daughter living nor is there any likelihood of my getting any. If I die without any issue my wife Srimati Bama Sundari shall be competent to take in adoption three sons one after another. But during the lifetime of one adopted son she shall not be competent to take another in adoption. If a son has to be taken in adoption, he shall have to be taken from my brother Sriman Saroda Kripa Lala. She shall not be competent to take a son in adoption from anybody else.
(3) When a son has been taken in adoption my adopted son shall be the owner-in-possession of all the properties in my share down to his sons, grandsons, and so on in succession. My wife Srimati Bama Sundari shall live in joint mess with the adopted son and shall enjoy the profits of my estate as a respectable lady. If there arises any misunderstanding with the adopted son then she shall be competent to live anywhere she desires separately and shall be competent, up to the end of her lifetime, to realise from my adopted son an annuity at the rate of Rs. 100 per month either amicably or by law suit making my estate liable for the same.
(4) If no son be taken in adoption then the son of my brother Sreeman Saroda Kripa Lala shall get all the properties in my share. If a son is taken in adoption, then until the said adopted son attains majority or if no son is taken in adopti
