Srimat Narain Deo vs Thakurain Kusum Kumari

Chapman, J.—This is an appeal against the grant of Letters of Administration with the Will annexed to the testator''s widow Thakurain Kusum Kumari. The appeal is by the defendant caveator, who is a somewhat distant agnate of the testator, Thakur Protap Narain Deo. The property is of considerable value, being the estates known by the name of the Lachhmipur Raj, in the District of Bhagalpur and the Sonthal Pergannas.

Protap Narain Deo had succeeded to the estate as an adopted son. The finding of the Court is that death took place at 2 A.M. on Sunday the 23rd of November 1613. The evidence is that the Will was executed at 10 A.M. the previous morning, Saturday the 22nd November.

At the commencement of the year 1913, the testator Protap Narain Deo had four wives but no children. The respondent Thakurain Kusum Kumari is his eldest widow.

The story of the execution of the Will told in the evidence is as follows:

In February or March 1913, the testator had a draft Will prepared by one Rai Tarini Prasad Bahadur, a leading Pleader of Bhagalpur, in favour of his eldest wife Kusum Kumari above referred to. The execution of the Will was postponed in the hope of having an issue and with that in view the testator married a fifth wife in June 1913. In August 1913 the idea of making a Will again came under discussion. Tarini Prasad''s draft was looked for but was missing and another draft was prepared by another Pleader named Jogendra Nath Bose, Tarini Prasad having died in the meantime. This second draft was settled by Babu Chandra Sekhar Sircar, a leading Pleader of the Bhagalpnr Bar. On this draft being taken to the testator at Deoghar where he was staying with his third, fourth and fifth wives, the testator said that he wanted to execute a Will in favour of his third wife who had been nursing him, his illness being consumption. Thereupon a draft in favour of the third wife was made by one of the Pleaders who had brought the second draft to him at Deoghar. This draft in favour of the third wife was taken to Babu Chandra Sekhar Sircar for revision. The Pleaders returned with the revised draft and a note from Chandra Sekhar advising the testator against the course which he was proposing to take. This note is dated the 19th November. Four Pleaders attended upon the testator on Friday the 21st November with the draft and the note. One of these Pleaders pressed the testator to execute the Will in favour of his first wife. The testator remained silent, the Pleader then suggested that he should adopt. He refused and the Pleaders left Deoghar in the course of that day. During that night the testator had a conversation with his third wife in which he intimated to her his intention to follow the advice which had been given to him and she assented. Accordingly on the morning of Saturday the 22nd November he informed his Dewan that he was of opinion that the Will should be executed in favour of his first wife. The Dewan asked if he should send for the Pleaders who had taken away the draft; the testator answered that he had found the original draft made by Tarini Prasad in February or March previous. The only alteration necessary was to include the fifth wife whom he had married since the preparation of that draft. Alterations were accordingly made and the Will executed and attested by as many as nineteen attesting witnesses. The Sub-Registrar was sent for and came after his day''s work was over at 3 o''clock in the afternoon. The Will was registered by him at 4 o''clock. That night at about 2 A.M. the testator died.

To prove the execution of the Will six of the attesting witnesses have been examined. There is also the evidence of the third wife Champaklata Kumari in support of the Will, although she is not actually an attesting witness thereto, and there is the evidence of the Sub-Registrar who registered the Will on the day that it was executed. Among the attesting witnesses is one Babu Jamini Bhusan Roy, a medical practitioner of some distinction who had been summoned from Calcutta to attend the deceased during the last days of his illness. The evidence, therefore, as it stands, is of considerable weight.

The arguments by which this evidence has been assailed are as follows:

It is said that the circumstances do not sufficiently explain the sudden change in the disposition of the testator after the departure of his legal advisers on the evening of the 21st of November. It is suggested that the Dewan manufactured the Will and had it registered. But in the first place no adequate motive for the manufacture of the Will can be suggested. The only result of the Will was to give the widows a power of adoption. In the absence of a Will the widows would have succeeded in any case although without the power to adopt. There was no motive for altering the Will in favour of the first wife so far as the Dewan was concerned, unless it be said that he wished to prevent litigation. Such a wish would clearly be an inadequate motive for running the risk of perpetrating a forgery. It is said that the story about the draft made by Tarini Prasad Bahadur in February or March 1913 is improbable; that the sudden finding of the draft by the testator ought not to be believed; the draft had previously been missing. It is pointed out that Tarini Prasad''s draft bears no signature and that the witness Abdul Gaffur who is said to have taken the instructions of the testator to Tarini Prasad was not examined. The suggestion is that the evidence is false and it was considered safe to mention the name of Tarini Prasad as he had since died. There is no doubt that there is something in this comment. On the other hand it is a minor point and the comment is clearly insufficient to outweigh the value of substantial positive evidence of the execution of the Will. The only other comment on the evidence in which there is any substance at all is with reference to the comparison of the signatures upon the Will with the signatures on two documents Exhibits A and B of the year 1911. In the endorsement on the Will for the purposes of registration the spelling of the word "Narain" is different The signature on the third page of the Will--the letter ye of the word "Sri"--is differently formed and all the signatures in the Will are in what is called the shekasta form of handwriting, while the signatures in Exhibits A and B are in formal handwriting, resembling print. This comparison, however, in my opinion is not of sufficient substance to outweigh the valuable positive evidence. It is clear that these shekasta, signatures in the Will are not, copies of the forms of signature on Exhibits A and B. It may be that the testator adopted the shekasta style of writing during his illness. The testator was known to the Sub Registrar who had been introduced to him at a Darbar. The acceptance of the appellant''s case involves, therefore, the subornation of a Government Officer, the Sub-Registrar. The witnesses include persons who would naturally be present; the mosaheb, the guru, a local doctor, and the estate Kaviraj. There is also the evidence of the Calcutta physician, an independent witness. I have read this evidence and have not been able to find any sufficient ground for saying that the District Judge was wrong in giving credence to it.

The affirmative evidence offered by the caveator to prove that the story of the execution of the Will was untrue consists mainly of the evidence of one Narain Panda. He says that at the time when the Will was supposed to be executed four of the attesting witnesses to the Will including the Calcutta physician were sitting with him and were hot with the Thakur. This evidence has been dealt with at length by the learned District Judge and the witness has been rightly discredited. It is, of course, extremely improbable that if the Thakur was seriously ill that morning as the witness admits, the Calcutta physician should not have attended upon him.

I accordingly find that the Will is a genuine document.

I have next to consider whether, the Thakur at the time he executed the Will had a sound disposing mind. No doubt he was emaciated and weak, but the Will was one with which his mind had been occupied for some months previously. The alternatives which his mind had to choose from were a Will in favour of his elder wife on the one hand and a Will in favour of the third wife on the other. The terms of the Will would be the same in either case and had previously been settled. It is difficult to conceive that if any strength remained in the mind at all there would not be strength enough to choose between these two alternatives. The Calcutta physician states affirmatively that he was capable of understanding business at the time when he executed the Will. His condition does not appear to have been materially altered for three or four days before his death and there is the fact that he received the Pleaders on the previous evening and had mind enough to refuse to adopt when they requested him to do so. It has been argued that Colonel Browne the English Doctor should have been examined regarding the testator''s mental condition, but Colonel Browne left on the 19th and he would not have been able to give a decided opinion as to the condition of the mind of the testator at the time when the Will was executed. There was no doubt that his condition caused alarm on the 19th, yet we have the affirmative evidence of the Calcutta physician that his mind was not prostrated and it was quite clear that it was not. The Sub-Registrar, who saw him at 4 o''clock on the evening of the day the Will was executed, says that, he was not in an unsound state of mind and that he gave rational answers to questions put by him. All the attesting witnesses give evidence to the same effect. It must be remembered too that his third widow Champaklata says that he discussed the terms of the Will with her during the previous night. On behalf of the caveator the main evidence relied upon in this connection is the evidence of Sarat Chandra Mukherjee who was the retained Pleader of the Estate. It was he who engaged Colonel Browne and the Calcutta physician Jamini Bhusan; he went with them to Deoghar on the evening of the 18th Tuesday and saw the testator twice a day until the time of his death, When he saw him on the Friday morning he says the testator could not speak; sometimes he made expressions of merriment and pointed out by moving his fingers. His evidence does not appear to me to displace to any material extent the evidence that the testator was of sound disposing mind, especially as the witness says that on the Friday morning he exhorted the testator to adopt a son--a statement which implies that his impression was that the mind of the testator was not completely prostrate.

It is then contended on behalf of the caveator that the validity of the Will is vitiated by the fact of the importunity which was exercised by the Pleaders. Such pressure, however, as was brought to bear upon the testator was directed mainly to persuade him to adopt a son. There was some pressure also no doubt in favour of the elder wife but he resisted this pressure. He refused to adopt a son and he would not assent to a Will in favour of his elder wife. The Pleaders left, and it is clear from the evidence of Champaklata that he consulted the latter and before finally deciding to make a Will in favour of his elder wife obtained her assent. No doubt in cases of importunity it is important to bear in mind the weakness of the testator''s condition. But he had the strength of Will left sufficient to resist the pressure brought upon him to adopt. It is, therefore, impossible to find that he did not exercise an independent will. The Pleaders had no sort of hold over him; it was a case of independent advice given from outside by persons who had no sort of control over the testator. It is said that the Pleaders told him that it would be illegal to make a Will in favour of his third wife; but it is only the Dewan who uses the word illegal in this connection and he only says that it was the Vakil Sarat who told the testator that it would be illegal. Now it is quite clear from Sarat''s evidence that he had little, if any, influence over the testator. The other legal advisers had not suggested that a Will in favour of the third wife was illegal, and I am not satisfied that any impression was created in the mind of the testator that a Will in favour of the third wife would be illegal. There is nothing in the evidence of Champaklata to suggest that any such idea was in the mind of the testator.

The result is that I find that the Will was executed by the testator and he had a sound disposing mind at the time and that the Will was not vitiated by any improper importunity. I would, therefore, dismiss the appeal with costs.

Jwala Prasad, J.

The subject-matter of litigation in this appeal is the Will of one Thakur Pratap Narain Deo. He was possessed of large property known as the Lachhmipur Estate in the District of Bhagalpur. He died at about 2 A.M. on November 23rd, 1913. The Will propounded is said to have been executed by him in favour of his first wife, petitioner respondent, on 22nd November 1913, at about 10 A.M. and to have been registered that very day at about 4 o''clock in the afternoon by the Sub-Registrar of Deogarh at the residence of the deceased under Act XVI of 1908 in force in the District of the Sonthal Pergannas. The testator died childless leaving five wives behind him, the eldest being named Thakurain Kusum Kumari and the third Thakurain Champaklata Kumari. It is unnecessary to mention the names of the other wives for the purposes of this case.

On January 5th, 1914, Thakurain Kusum Kumari applied before the District Judge of Bhagalpur for the grant of Probate of the aforesaid Will of her late husband, and in the alternative for grant to her of Letters of Administration with the Will annexed. On 2lst February 1914 a caveat was lodged before the District Judge by one Srimat Narain Deo, the youngest of three brothers who claimed to be next of kin to Lalit Narain Deo, whose adopted son the deceased Thakur Pratap Narain Deo was. An objection raised in the lower Court that caveator had no locus standi to oppose the application for the grant of Probate applied for was overruled by the District Judge by his order dated 25th November, 1914. After contest the District Judge of Bhagalpnr granted the petitioner Letters of Administration with the Will annexed and rejected the objection of the caveator by his judgment dated 15th June 1914. The caveator has appealed to this Court. The appellant alleged in his objection petition in the lower Court that the testator died on the 22nd November 1913, and not on 23rd as stated by the applicant, suggesting thereby that be had died before the execution of the Will. This allegation has not been substantiated and in view of the overwhelming evidence on record to the contrary the appellant has given it up in this Court.

The main grounds urged before us by the learned Counsel for the caveator are as follows:

That the Will was not executed at all by Thakur Pratap Narain Deo and the signatures on the Will are not his signatures.

That the testator at the time he is said to have executed the Will was not possessed of sound disposing mind.

That the Will is not the result of the free volition of the testator but is the outcome of importunity of persons surrounding him.

As to the first of these, namely, that the Will was not executed at all by Thakur Pratap Narain Deo, Counsel for the appellant has based his contention mainly upon the fact that the signatures of the testator on the Will in question are different in style from those on certain documents Exhibits A and B, filed in the lower Court. The Will in question has been attested by several witnesses, six of whom have been examined in this case. These witnesses have sworn that the testator put his signatures on the Will in their presence The most important of these witnesses is the Kaviraj of Calcutta, Jamini Bhushan Roy, M.A., M.B., who attended the deceased from the 19th till his death on the 23rd November. The other witnesses are the Dewan and some other servants of the testator. The Sub-Registrar who has also been examined says in his evidence that he saw the testator sign the Will in his presence at the time when the admission of the testator was taken by him for the purpose of registering the Will. No sufficient reason has been assigned by Counsel for the appellant why the evidence of these witnesses should not be accepted. In face of the direct evidence of these persons it is impossible to set aside the Will on the mere difference in style between the signatures on the Will in question and those on Exhibits A and B. The signatures on Exhibits A and B appear to be similar while the signatures on the Will in question appear to be different in style from those on Exhibits A and B. The signatures on Exhibits A and B are in ordinary style, while those on the Will in question are in a style called shikasta. No expert has been examined in this case to prove that the signatures on the Will and those on Exhibits A and B are of different persons, and it is difficult for us to say that they are not of one and same person. The documents, Exhibits A and B, were executed in May and September 1911, respectively, and the Will is dated November 22nd, 1913. The difference in the style may possibly be accounted for by the difference between the dates of these documents. Besides the signatures on the Will were affixed when the testator was admittedly ill. This may be another reason for the difference in the style of the signatures. It is difficult to override the direct evidence of the persons who saw the testator put his signatures on the Will by conjectures based upon the difference in the style of the signatures. To set aside the direct evidence in this case involves a conspiracy of the Dewan and the servants, and notably of the Calcutta Kaviraj and of the Sub-Registrar of Deogarh to set up a false and fabricated Will. There is no motive for such a conspiracy, and it is impossible to conceive what advantage could have been gained by these persons in setting up a false Will.

The Sub Registrar knew the testator personally, and has mentioned this fact in the endorsement on the Will. It would have been extremely dangerous for the Dewan and the servants of the testator to put up a false person to admit the execution of the Will before the Sub-Registrar-The Kaviraj of Calcutta is a medical practitioner of high status who has calls in the mofassil, is M.A., M.B., of the Calcutta University, a Fellow of the said University and a member of the Senate A faint insinuation has been made against him of having possibly been bribed in order to put his signature on the Will as an attesting witness and thereafter to prove the Will in Court by false evidence. Far from having been substantiated, the charge against him is, in my opinion, base and groundless. The motive suggested is also not adequate, I have, therefore, ho hesitation in accepting the direct evidence in this case that the Will was executed and signed by the testator. The learned Counsel for the appellant complains that certain documents called for by him, namely the account books of Debi Prasad Marwari and the Power-of-Attorney executed by Thakur Pratap Narain Deo in favour of the Hon''ble Sheo Shankar Sahai Bahadur, C.I.E , have not been produced in order to enable the Court to compare the signatures on those documents with the signatures on the Will. There does not appear to be any substance in this complaint, when the direct evidence on record proves beyond doubt that the testator did actually sign the Will.

The second contention of the learned Counsel for the appellant, namely, that the testator was not possessed of sound disposing mind at the time of the execution of the deed is based upon the fact that the testator was suffering from pthisis or consumption for sometime before his death; that he was bedridden at the time of the execution of the deed and that he died only about 13 hours after the execution of the Will. This contention is concluded by the evidence of the aforesaid Calcutta Kaviraj. The fact that he has attested the Will as a witness is in itself sufficient to show that he as a medical attendant believed that the testator was possessed of sound disposing mind. He was constantly in attendance upon the deceased from the 19th of November till his death. He has already stated in his evidence that the deceased was capable of understanding business.

The Sub-Registrar, N.N. Mukherji, says in his evidence that the deceased gave rational answers to the questions put by him at the time when he went to take his admission for the purpose of registering the Will.

The evidence of the Kaviraj and the Sub-Registrar is conclusive to show that the deceased was of sound mind both when he executed the Will at 10 A. M. and when he admitted the execution thereof and put his signatures thereon at 4 P. M. on the 22nd. The other witnesses corroborate the evidence of the Kaviraj and the Sub-Registrar.

There is no reason why the evidence of his third wife, Chamapaklata, should not be accepted as proving that the deceased was perfectly sound and capable of executing the Will in question. The evidence is that from the 19th to 21st the deceased was actually engaged in and applied his mind to considerations regarding the making of a Will by him. On the 21st he possessed sufficient strength of mind to resist the suggestions made by his Pleaders that the Will should not be executed in favour of his third wife. No doubt the deceased was ill for sometime before, but illness is not in itself sufficient to invalidate a Will unless it impairs the mind in such a manner as to deprive the executant of the power of understanding the consequences of making the Will. This is clear from Explanation 4 of Section 46 of the Indian Succession Act, which embodies the principles enunciated in Judicial pronouncements both in England and in India. I am, therefore, of opinion that the deceased was possessed of sound disposing mind when he executed the Will. I do not agree with the appellant in his contention that Colonel Browne should have been examined in the case. The evidence of Colonel Browne will not be very material for he saw the deceased only on the 19th, whereas the Calcutta Kaviraj was in attendance all through from the 19th up to the time of his death.

The third ground urged by the Counsel for the appellant against the Will is that it is not a voluntary act of the testator but is the result of an importunity of the people surrounding him. It is said that the deceased had long before abandoned the idea of executing a Will in favour of his first wife, and on the 21st November, that is only a day before the execution of the Will, he distinctly expressed his intention of making a Will in favour of his third wife inspite of the suggestions of his advisers to the contrary, and that it is impossible that the deceased could have, of his own accord, changed his mind so suddenly and that the Will in question must, therefore, have been the result of the persistent solicitations of the Dewan and other persons who surrounded him, when the deceased had physically and mentally become infirm and incapable of resisting the importunity offered to him. The contention does not appear to be borne out by the facts proved in the case. The evidence is that so far back as February or March 1913, the deceased had contemplated making a Will in favour of his first wife and had also a draft made for that purpose by a leading Vakil of the Bhagalpur Bar, namely, Rai Tarini Prasad Bahadur. The execution of the Will was, however, postponed at that time, as the deceased thought of marrying a fifth wife in the hope of getting an issue and in fact did marry. In August 1913, he again reverted to his intention of making a Will in favour of his first wife and had another draft made, as the draft of Tarini Prasad was missing at the time.

When the second draft was shown to him at Deogarh, the deceased said that he wanted to make the Will in favour of his third wife. His Dewan and the Pleaders who had come from Bhagalpur with the draft pointed out to the Thakur that it was the custom of the family that the eldest wife should get the property and that the execution of the Will in favour of the third wife might lead to litigation. But the deceased did not listen to this advice and had a draft of the Will in favour of the third wife made by his Dewan Nadiya Chand Dutt. This draft was sent by him to Babu Chandra Sekhar Prasad, a leading Pleader of the Bhagalpnr Bar, for revising it. Babu Chandra Sekhar made some alterations in the draft and returned it to him, with a note that the execution of the Will in favour of a junior wife in preference to the first would be a departure from the old and ancient custom of primogeniture prevailing in the family and might lead to litigation. He also suggested in his note that the difficulty might be avoided if the'' Thakur were to adopt a son to himself. The draft and the note bear the date 19th November 1913, and were put up to the deceased on the 21st, in the presence of three Pleaders from Bhagalpnr and a Pleader from Calcutta. The Pleaders gave him the same opinion as was embodied in the note of Babu Chandra Sekhar mentioned above, and added that he should execute a Will in favour of his first wife. The Thakur remained silent, meaning thereby that he did not approve of the suggestions. The Pleaders then proposed to him that he should adopt a boy, to which the Thakur said that he would not adopt because he thought that he might get an issue. The Pleaders then left him and went away to Bhagalpur by the evening train that very day.

It is contended by the appellant that the above amounted to an importunity offered to the deceased to execute a Will in favour of the first wife. I do not agree with this. All that the above amounts to is. that the Dewan and his Pleaders pressed upon his consideration what they considered to be a good advice, but an advice or even persuasion cannot be said to be unlawful unless it deprives one''s freedom of the will and amounts to coercion. It was pointed out by Lord Cranworth in Boyse v. Rossborough (1857) 6 N.L.C. 2 : 26 L.J. Ch 256 : 3 Jur. 373 : 5 W.R. 414 : 10 E.R. 1192 : 108 R.R. 1 that an influence in order to be undue within the meaning of any rule of law which will make it sufficient to vitiate a Will must be an influence exercised either by coercion or by fraud. Vide Williams 47-51. Section 48 of the Indian Succession Act says that an importunity must take away the free agency of the testator in order to render a Will void. As a matter of fact the deceased did not yield to the advice offered to him and rejected it, and the Pleaders left the place.

On the night of that day he said to his third wife that he wanted to execute the Will in her favour but that everybody else was of a different opinion. The third wife told him that she herself had no objection to the Will being made in favour of the eldest wife. The third wife had in the meantime consulted her father who was at Deogarh, and her father told her that she should not take a Will in her favour as that would lead to litigation. The consultation of the testator with his third wife on Friday night after the Pleaders had left seems to me to be the determining factor in the final intention of the testator to execute the Will in favour of the first wife. It was to please the third wife, who was nursing him during his illness, that the testator had thought of altering his original intention of making a Will in favour of his first wife, and when she herself said that she would like the Will to be executed in favour of the first wife there was nothing to prevent the testator from giving effect to his original intention. It is significant that the first wife was not at Deogarh at that time and so she could not influence him to make the, Will in her favour, and there is no reason why the Dewan and other servants would exercise an undue influence on her behalf.

It is thus clear that when at 7 A.M. of the 22nd the testator said to his Dewar that he would execute the Will in favour of the first wife, he did so out of his own accord and in the exercise of his own judgment in the matter, and not on account of any importunity offered to him.

The original draft of the Will made by Rai Bahadur Tarini Prasad was put by him in his box as he wanted to marry the last wife for getting an issue. This draft was taken out by him, and after some necessary corrections being made was handed over to one Abdul Gafoor for fairing it out. There was no necessity for him to consult the Pleaders again, or to have another draft made. Abdul Gafoor wrote the Will in question from the draft. The deceased had the Will read to him before putting his signatures thereon in presence of the attesting witnesses, including the Calcutta Kaviraj referred to above. Abdul Gafoor has not been examined in the case, and this omission has been severely commented upon on behalf of the appellant. I think the scribe should have been examined, but in view of the unquestionable evidence on the record of the Will having been duly considered and signed by the testator, the omission to examine Abdul Gafoor is not at all fatal to the case of the respondents.

It is needless to refer to the authorities quoted by the appellant''s Counsel in the course of his arguments. There can be no dispute that the onus is upon the propounder of the Will to prove that the testator not only did make the Will but that he possessed sound testamentary disposition at the time of making the Will and that he made the Will of his own accord, and not on account of any importunity or coercion. This has to be determined by the actual facts, established in the case under consideration. As shown above, it has been proved in this case that the Will was duly made and that the testator was not in any way unlawfully influenced in making the Will. The appellant has not rebutted satisfactorily the evidence adduced by the respondent that the Will was duly made by the deceased.

The appeal is, therefore, dismissed with costs.