Mt. Rajdulari Bibi and Others vs Mt. Krishna Bibi and Another

Das, J.—This appeal arises out of an application for probate of an instrument dated the 24th July 1923, and purporting to be the Will of Raghunandan Lal who died on the 31st August 1923. He left behind him two daughters Rajkumari Bibi and Sarat Kumari Bibi, the widow of a deceased brother Krishna Bibi, a sister Rajdulari Bibi and two sons of the sister, Lachmi Prosad, and Hari Prosad. By the alleged Will five persons Rai Bahadur Sakhi Chand, Rai Bahadur Suraj Prosad, Ganesh Lal, Madhusudan Das and Maulvi Jamaluddin were appointed executors and trustees and, subject to certain legacies, the whole of the estate was, in substance, devised to the trustees with directions that they should open a fund called "Raghunandan Poor Students Fund" and give scholarships and pecuniary assistance to the poor boys of the colleges and schools in the province of Bihar irrespective of religion or creed. The legacies provided by the Will are as follows:

Rs. 500 per month to each of his daughters from generation to generation;

Rs. 150 per month to Krishna Bibi;

Rs. 500 to his sister Rajdulari and after her death to her sons;

Rs. 300 to Ram Bibi, widow of a deceased uncle of the testator and after her death to her son Sri Krishna Das and

Rs. 200 to Ms cousin Madhusudan Das.

On the 27th February 1924, four of the executors nominated in the Will, namely, Rai Bahadur Sakhi Chand, Ganesh Lal, Madhusudan Das and Maulvi Jamaluddin applied for grant of probate to them, and caveats were filed on behalf of the daughters of the deceased as also on behalf of his sister-in-law Krishna Bibi. We are not concerned in these proceedings with the caveat filed on behalf of Krishna Bibi who supported it by an affidavit in which she raised the question as to whether the testator had power to execute the Will in question. The eldest daughter Rajkumari Bibi beyond filing the caveat took no further part in the proceedings; but there was an active opposition on the part of the youngest daughter who was a minor and who was represented in those proceedings by her father-in-law. Two important questions of fact were raised on her behalf, first whether the deceased had testamentary capacity to execute the Will; and secondly, whether there was undue influence exercised on the deceased by Jamaluddin. The learned District Judge has answered both these questions in favour of the propounders of the Will; and the decision of the learned District Judge on these points has not been challenged before us on behalf of Sarat Kumari Bibi. But the learned Judge rejected the application for probate on the ground that there was no sufficient evidence that the deceased was aware of the contents of the Will and that the Will expressed his intention; and the only point which we have to consider in this appeal is whether the learned District Judge was right in rejecting the application for grant of probate on the very narrow ground assigned by him.

The principal incidents in connexion with the execution of the Will according to the case of the propounders may be shortly stated. The testator dictated the instructions of the Will to Hasan Ali a few days before the Will was actually executed. Hasan Ali, according to the evidence of the propounders of the Will, evidence which has been accepted by the learned District Judge, had taught the testator Urdu in his younger days and had kept up some sort of connexion with the testator ever since. Now these instructions were taken down by Hasan Ali in two or three loose sheets of paper and were made over by the testator to Jamaluddin on the 21st July, with instructions that he should take them to Mr. Ranjit Sinha, a leading vakil practising at Bhagalpur, and have a Will drafted by the vakil on the footing of these instructions. On the evening of the 21st July, Jamaluddin saw Babu Ranjit Sinhasand the latter dictated a Will to him in Urdu. On the morning of the 22nd July, Jamaluddin read out the Will as drafted by the vakil to the testator and made over both the instructions and the draft Will to the testator. On the 23rd July, the testator gave the draft Will to Jamaluddin and asked him to make another copy of it omitting the 12th paragraph containing the appointment of executors and trustees and the appointment of Jamaluddin as the life manager of the estate. According to the evidence of Jamaluddin the object of the testator was to take the opinion of Rai Bahadur Surja Prasad on the draft prepared by Mr. Ranjit Sinha without letting him know that he was proposing to appoint him one of the executors and trustees under the Will. The deceased then sent for Rai Bahadur Surja Prasad, a leading vakil practising in Bhagalpur, and the latter came to see him that evening about 6 p.m. The copy of the draft prepared by Ranjit Babu, that is to say, the draft as dictated by Ranjit Babu with the omission of the 12th paragraph of it, was then read out to the Rai Bahadur in the presence of the testator and the Rai Bahadur proposed to take it home with him and to consider the matter the next morning. This was acceded to and the Rai Bahadur took the draft with him. On the morning of the 24th July, Jamaluddin saw the Rai Bahadur who made certain verbal alterations in the draft. Under instructions from the testator Jamaluddin then made a fair copy of the draft adding the missing paragraph. He then read it out to the testator who approved of it. At about 2 o''clock that day, the testator accompanied by Jamaluddin and his medical attendant Satish Babu motored to the office of the District Sub-Registrar and sent for the Rai Bahadur from the District Court. The Rai Bahadur came to the motor-car where the deceased was waiting for him and the deceased then executed the Will in the presence of the Rai Bahadur and Satish Babu, who put their signatures as attesting witnesses. Jamaluddin then signed the Will as the scribe thereof. The whole party then walked into the office of the District Sub-Register and the testator presented the Will in a sealed cover for being deposited with the Sub-Registrar. The Sub-Registrar asked him whether be had executed the Will voluntarily and "with an understanding of its contents" to which the testator answered in the affirmative. The testator left for Calcutta on the 25th July, where he died on the 31st August,

Before dealing with the grounds assigned by the learned Judge in support of his conclusion a little more in detail it will be useful to refer to the 12th paragraph which seems to me to be the key to the decision. That paragraph runs as follows;

For carrying out the above mentioned provisions I, the executant, appoint five trustees: (1) Rai Bahadur Babu Sakhi Chand, Superintendent of Police at present manager of the Jagannath Temple residing at present at Puri (2) Rai Bahadur Surja Prasad, son of Babu Ras Behari Sahay, deceased. Vakil, resident of Mahalla Khanjarpur, district Bhagalpur, (3) Babu Ganesh Lal, my Khalera brother-in-law (cousin-in-law) resident of Mahalla Guzri, Patna City (4) Babu Madhusudan Das, son of Babu Ram Narayan Das, deceased, (who is) my relative, resident of Mahalla Golaghat, Bhagalpur and proprietor of the Gopal Steam Press, Bhagalpur (5) Maulvi Jamaluddin Khan, the present manager of my estate, resident of Mahalla Imamnagar, district Bhagalpur. The said Maulvi has up to this time been serving me faithfully and conscientiously and he is acquainted with everything. He is therefore assigned the position of manager for life in addition to that of a trustee. His monthly salary for manager''s work is fixed at Rs. 250. Over and above this salary, proper conveyance charges shall be given to him, and travelling and daily diet expenses shall be given as in my time, or the trustees may make proper arrangement therefore in such manner as they may think proper. In case of increase of the income of the estate, the trustees shall allow him such increment of salary as may be decided upon by them. This item of expenditure shall be a charge on my estate under the head establishment charges. Travelling expenses both ways etc. shall be paid to trustees Nos. 1 and 3 When they shall come over on business of the estate and the same rule shall apply to the trustees living at a distance. This (item of) expenditure shall be a charge on my estate under the head--Allowance to trustees.

The learned Judge refers to the evidence to show that Jamaluddin took an active part in the preparation of the Will and he refers to the 12th paragraph of the Will to show that Jamaluddin took a benefit under the Will; and professing to be guided by Barry v. Butlin (1) and Tyrrell v. Paintan [1894] P.D. 151 he thought that probate should not be granted unless those propounding the Will satisfied the conscience of the Court that the testator knew and approved of the contents of the Will. Now it happened that the testator, who was an educated man and was a Municipal Commissioner and had served his town as Honorary Magistrate, signed the Will in the presence of Rai Bahadur Surja Prasad, a witness whose testimony cannot be impeached in any Court of law and was in fact not impeached in the arguments before us. It also happened that the testator himself went to the office of the District Sub-Registrar and deposited the Will with him under the provision of the Indian Registration Act and that in answer to a question put to him by the District Sub-Registrar, he said that he had executed the Will" with an understanding of its contents." But the learned Judge thought that the case was one in which the signature of the testator did not carry with it the presumption of knowledge of the contents of the Will; and, as in his view there was not sufficient evidence of knowledge he thought that it was not a case in which he should pronounce in favour of the validity of the Will.

It is not open to doubt that the onus probandi lies in every case upon the party propounding the Will; and he must satisfy the conscience of the Court that the instrument so propounded is the last Will of a free and capable testator. But the onus is in general discharged by the proof of capacity and the fact of execution from which the knowledge of and assent to its contents by the testator will be assumed. This is the general rule; but on this an exception has been engrafted which was stated in these words in Barry v. Butlin [1838] 2 Moor P.C. 480.

If a party writes or prepares a will, under which he takes a benefit, that is a circumstance which ought generally to excite the suspicion of the Court, and calls upon it to be vigilant and jealous in examining the evidence in support of the instrument, in favour of which it ought not to pronounce unless the suspicion is removed and it is judicially satisfied that the paper propounded does not express the true will of the deceased.

As was said in Tyrrell v. Painton [1894] P.D. 151:

the principle is that whenever a Will is prepared tinder circumstances which raise well-grounded suspicion that it does not express the mind of the testator, the Court ought not to pronounce in favour of it unless the suspicion is removed;

but it is obvious that the rule to which expression is given in the two cases cited above is a rule of prudence not a rule of law; and it is worth while stating the following passage from the judgment of Baron Parke to show the meaning and the extent of the rule upon which the learned Judge in this case has so largely founded his judgment:

All that can be truly said

said the learned Baron

is that if a person, whether attorney or not, prepares a Will with a legacy to himself, it is, at most, a suspicious circumstance, of more or less weight, according to the facts of each particular case; in some of no weight at all as in the case suggested, varying according to circumstances; for instance, the quantum of the legacy and the proportion it bears to the property disposed of and numerous other contingencies, but in no case amounting to more than a circumstance of suspicion, demanding the vigilant care and circumspection of the Court investigating the case, and calling upon it not to grant probate without full and entire satisfaction that the instrument did express the real intentions of the deceased.

Now, is there a suspicion inherent in the Will itself that it does not express the mind of the testator?. The learned Judge says that Jamaluddin, the writer of the document, takes a considerable benefit under the Will and that that is a circumstance which must excite the suspicion of the Court. The benefit, in my opinion, must be a pecuniary benefit a legacy, for instance, more or less of a substantial nature; but in this case Jamaluddin does not take a legacy under the Will. All that is provided for in the Will is that Jamaluddin should be retained as manager for life at a salary of Rs. 250 per month. (His Lordship then discussed the circumstances under which Jamaluddin was appointed the manager under the Will and proceeded.) In my opinion it is satisfactorily established that the testator knew and approved of the contents of the Will.

I would allow the appeal, set aside the order passed by the Court below and direct that probate do issue. In regard to the question of costs, most serious charges were made against Rai Bahadur Surja Prosad and Jamaluddin by Jugal Kishore Prosad, the father-in-.law of Sarat Kumari Bibi. I think that he should pay the costs incurred by the petitioners in this Court and in the Court below. We assess the hearing fee in this Court at Rs. 1,500. This judgment will govern the other appeal and there will be no order for costs in that appeal.

Foster, J.

I agree.