Rani Bhagwan Kuar vs Jogendra Chandra Bose and others

Arthur Wilson, J. 1. Sardar Dyal Singh, a wealthy gentleman who resided at Lahore, died on September 9, 1898, having executed a will on June .15, 1895, by which he appointed the respondents his executors, and made various dispositions of his property which need not now be considered. The testator was by birth a Sikh. 2. On February 18, 1899, the executors applied to the Chief Court of the Punjab for probate of the will under the Probate and Administration Act (Act V. of 1881). Several persons opposed the grant, amongst whom was the present appellant, the testator''s widow. She raised a variety of objections, of which it is only necessary to notice two. She alleged, first, that the application was not maintainable under the Act of 1881, as the deceased was not a Hindu within the meaning of the Act at the time of his death or at the time of the making of his will. Secondly, she denied the due execution of the will, and alleged that there were alterations and interlineations which affected the right to probate. Issues were settled raising these questions. The Chief Court decided against the appellant on both points, and granted probate to the executors. Against that decision the present appeal has been brought. 3. The appellant''s first objection resolved itself in argument into three. First, that the testator as a Sikh was not included in the term "Hindu," as used in the Act of 1881. Secondly, that assuming Sikhs to be Hindus within the meaning of the Act, the testator had before his death ceased to be a Sikh and become a member of the Brahmo Somaj, and so was not a Hindu. Thirdly, that certain personal habits of the testator in respect of diet and otherwise were inconsistent with Hindu or Sikh orthodoxy, and so excluded him from the term Hindu in the Act. Their Lordships will deal with these several points in their order. 4. A long series of legislative provisions have been enacted for the purpose of securing to the people of India the maintenance of their ancient law, amongst others in matters of inheritance and succession, and many minor enactments have been passed to facilitate the administration of the laws so preserved. The object and principle of this legislation has been throughout to enable the people of various races and creeds in India to live under the law to which they and their fathers had been accustomed, and to which they were bound by so many ties. 5. The framers of the earlier Acts, regulations, and charters had a less detailed acquaintance than we have now with the diversities of creed and of religious law existing in India. They were familiar with two great classes, Mahomedans and Hindus, each with its own law bound up with its own religion. They thought no doubt that they were sufficiently providing for the case by securing to Mahomedans the Mahomedan law, and to Hindus (or Gentus, as they were sometimes called) the Hindu law. In process of time it became more and more clearly understood that there were more forms than one of the Mahomedan law, and more forms than one of the Hindu law, and the Courts, acting in the spirit which prompted the legislation, have applied the law of each school to the people whose ancestral law it was. In the same way it came to be known that there were religious bodies in India which had, at various periods and under various circumstances, developed out of, or split off from, the Hindu system, but whose members have nevertheless continued to live under Hindu law. Of these the Jainas and the Sikhs are conspicuous examples. Their cases had to be considered by the Courts, and in dealing with them a liberal construction was always placed upon the enactments by which Mahomedans and Hindus were secured in the enjoyment of their own laws. 6. As to Jainas, the Courts in India always applied the Hindu law generally to their cases in the absence of custom varying that law. This course was approved by this Board in Sheo Singh Rai v. Mussumut Dakho L.R. 5 Ind. Ap. 87 and Chotay Lall v. Chunno hall. (1878) L.R. 6 Ind. Ap. 15. 7. The case of the Sikhs came up for consideration for the first time, so far as their Lordships are aware, before the Supreme Court in Calcutta, in Doe d. Kissenchunder Shaw v. Baidam Beebee, reported briefly from Sir E. Hyde East''s notes in 2 Morley''s Digest, 22. In the previous volume of the same work (at p. clxxvii.) a statement is quoted, made to a Parliamentary Committee in 1830 by Sir E. Hyde East, by whose Court the case just mentioned was decided. He said of that case: "The difficulty was gotten over by considering the Sikhs as a sect of Gentoos or Hindoos, of whom they were a dissenting branch." 8. From that time to the present the same view has been acted upon by the Indian Courts, and particularly (as has been pointed out by the learned Judges of the Chief Court in the present case) by the Courts of the Punjab, which is the real home of the Sikhs. 9. An ingenious argument was addressed to their Lordships upon this point. It was suggested that the application of Hindu law to the Sikh community was not based upon their being Hindus within the meaning of the early legislation bearing on the subject, but upon the alternative rule of justice, equity, and good conscience, also sanctioned by that legislation, in accordance with the principles laid down in Abraham v. Abraham 9 Moore''s Ind. Ap. Ca. 195, as applicable to converts from Hinduism to Christianity. As to this it seems sufficient to say that the ground of decision has never been that which is now suggested, but that the decisions have been based upon the view that Sikhs were included under the term Hindu. 10. To recur to the Acts of the Legislature, there have undoubtedly been modern instances in which, in the light of more complete knowledge, the various creeds of India have been more accurately, or at least more carefully, distinguished than they once were. Their Lordships'' attention was called to several instances of this. The Hindu Wills Act, 1870 (No. XXI. of 1870), an Act not in force in the Punjab, is made applicable to the will of any Hindu, Jaina, Sikh, or Buddhist. Act III. of 1872, passed to provide a form of marriage for persons not professing the Christian, Jewish, Hindu, Mahomedan, Parsi, Buddhist, Sikh, or Jaina religion enumerates those religions accordingly. And the Married Women''s Property Act (III. of 1874) similarly distinguishes Hindus, Mahomedans, Buddhists, Sikhs, and Jainas. 11. But though in some modern Acts religions are thus distinguished with more detail than was formerly used, in others the old form of language is used, and with the old generality of meaning. An instructive example is to be found in the Punjab Laws Act (Act IV. of 1872), Section 5 of which enacts that in questions regarding succession, special property of females, betrothal, marriage, dower, adoption, guardianship, minority, bastardy, family relations, wills, legacies, gifts, partitions, or any religious usage or institution, the rule of decision shall be (a) any special custom applicable to the parties concerned; "(b) the Mahomedan law in cases in which the parties are Mahomedans, and the Hindu law in cases in which the parties are Hindus." It is impossible to suppose that the Legislature in laying down the law for the Punjab, while providing a rule of decision for Mahomedans and Hindus, should have overlooked the case of the Sikhs, or left them dependent only upon such customs as they might be able to prove. It seems clear that the Legislature used the old phraseology in the old sense, and included Sikhs under the term Hindu. 12. The evidence in the present case makes it clear, and it is satisfactory to find it so, that in including Sikhs under the term Hindus, legislators and judges have acted quite in accordance with popular usage. Witnesses on one side and on the other, Sikhs and others than Sikhs, speak of Sikhs as Hindus. And in an official publication on high authority--the General Report on the Census of India, 1891, at p. 164--it is said that a Sikh is "generally called a Hindu in common parlance." 13. These considerations naturally lead up to an examination of the particular legislative enactments which their Lordships have to construe. 14. The Indian Succession Act (Act X. of 1865) laid down the law as to inheritance and testamentary disposition in British India for all classes of persons who were not exempted from its provisions. The Act is based upon English law, and for the most part it expresses the rules of that law. It would obviously have been absurd to apply such an Act to the people of India generally, whose laws were wholly different from the English. And accordingly in Section 331 it is declared that: 15. "The provisions of this Act shall not apply to intestate or testamentary succession to the property of any Hindu, Mahomedan, or Buddhist." Section 332 further gave power to the Government of India to exempt any race, sect, or tribe from the operation of the Act; but no exemption affecting the present question has been made under this section. It appears to their Lordships to be clear that in Section 331 the term Hindu is used in the same wide sense as in earlier enactments, and includes Sikhs. If it be not so, then Sikhs were, and are in matters of inheritance, governed by the Succession Act--an Act based upon, and in the main embodying, the English law; and it could not be seriously suggested that such was the intention of the Legislature. 16. The Probate and Administration Act, 1881 (Act V. of that year), which is mainly a procedure Act, commences with a preamble reciting that "it is expedient to provide for the grant of probate of wills and letters of administration to the estates of deceased persons in cases to which the Indian Succession Act, 1865, does not apply." In Section 2 it is said that" Chapters II. to XIII. (both inclusive) of this Act shall apply in the case of every Hindu, Mahomedan, Buddhist, and person exempted under Section 332 of the Indian Succession Act, 1865"; and the chapters there mentioned include the provisions for the grant of probate of wills. 17. Their Lordships think it clear that the term Hindu in this Act is used in the same sense as in the Succession Act, and they agree with the Chief Court in holding that a Sikh is included under that term. 18. The second form in which the objection to the grant of probate was put was that, assuming the testator as a Sikh to have been originally a Hindu within the meaning of the Probate and Administration Act, he had ceased to be either a Sikh or a Hindu by becoming a member of another religious body, the Brahmo Somaj. The learned judges of the Chief Court examined the literature bearing upon the Brahmo Society; they had before them much important evidence with reference to the Brahmos and the relation of their principles and their organization to the Hindu system; and they came to the conclusion that a Sikh or Hindu by becoming a Brahmo did not necessarily cease to belong to the community in which he was born. They also found on the evidence that the testator never became a professed Brahmo at all. In both these conclusions their Lordships agree. 19. It was next objected that in matters of diet and ceremonial observance the testator had departed so far from the standard of orthodoxy binding upon him as a Hindu or a Sikh as to exclude him from the term Hindu in the Act in question. Their Lordships agree with the learned judges of the Chief Court in thinking that such lapses from orthodox practice, assuming them to be established, could not have the effect of excluding from the category of Hindu in the Act one who was born within it, and who never became otherwise separated from the religious communion in which he was born. 20. There remains one further point to be disposed of. It was contended for the appellant that the will admitted to probate had not been duly executed in its present form. The mode in which the objection arose is somewhat peculiar. The will is signed by the testator at the end of it, and attested by two European officers-Dr. Clark, who was at the time the civil surgeon, and Colonel Marshall, who was at the time the Divisional and Sessions Judge of Lahore--the attestation clause being in the completest possible form. The will, which is an English document, and which their Lordships have had an opportunity of examining, is also signed at the bottom of each page by the testator and by the attesting witnesses. It was deposited in the office of the registrar a few days after its execution, and there it remained till after the death of the testator more than three years later. The application for probate fully complied with the requirements of the law as expressed in Sections 62 and 67 of the Probate and Administration Act; it was verified by the executors, and there was appended to it a declaration of due execution by Clark, one of the attesting witnesses. If this had been all, there would have been quite sufficient to warrant the issue of probate. The appellant, however, in opposition to the grant, disputed the due execution of the will, and alleged that there were alterations and interlineations in it which affected the grant of probate. This the executors denied. 21. At the trial Clark was called as a witness in Court. In examination-in-chief he spoke to the execution of the will with little recollection on the subject, and relying mainly upon his attestation. In cross-examination he said: "I have a vague recollection that the Sardar said something had been omitted which would be filled in afterwards about investments or something of that sort. There is a sort of picture in my mind of a page partly left blank." Further on he said: "My recollection as to the blank page was that it was blank at the bottom. It was not the last page according to my recollection. I noticed it as the pages were being turned over to be signed." 22. Marshall, the other attesting witness, was examined in England on commission. In chief he spoke pretty clearly to the execution of the will. In cross-examination he said: "To the best of my recollection, a portion of one of the pages, about the middle of the document, was left blank--that is, was not written upon to the foot of the page, as they now all are: and the Sardar gave some explanation as to some details being required. I did not read the will." Question: "By details being required, did you not understand that these details would subsequently be filled into the will?" Answer: I presumed such would be the case. I cannot say to what these details referred. I knew nothing of the contents of the will. I only witnessed the Sardar''s signature. "(Witness is shewn paragraph 25 of the will, page 11, and says with regard to the words" Mrs. L. Catherine Gill" appearing there, that he cannot say whether these words were present when he signed his name at the foot of the page.) Question: "Can you state any reasons why the Sardar gave the explanation that there were some details that would be subsequently filled in?" Answer: "Because, as far as I recollect, there was a portion of a page which had not been written upon." Re-examined he said: "I cannot indicate in any way the page of this document which had not been written upon down to the bottom. I cannot say upon looking through the will (as I am not an expert) which paragraphs were written before or after my signatures cannot state exactly the length of the blank space. I cannot state what were the number of lines left blank on the unfinished page." 23. The impression, then, upon the minds of these two witnesses is that some one of the pages in the middle of the will was not written on to the bottom. The learned judges of the Chief Court, dealing with this part of the case, shewed that the impression of these witnesses could not be correct, because there is no page of the will in which a sentence ends with the page and in which there could have been such a blank as the witnesses picture to themselves. And for this and other weighty reasons the learned judges considered that the witnesses must have been mistaken in their impression. 24. Their Lordships have examined the will for themselves, and they entirely concur with the Chief Court in rejecting the suggestion of the supposed blank in the will at the time of its execution. 25. For these reasons their Lordships will humbly advise His Majesty that this appeal should be dismissed. The appellant will pay the costs of the appeal.