H.L. Anand, J.
(1) This Judgment would dispose of two connected appeals, being F.A.OS. 58 and 59 of 1969, and C.Ms. 27 of 1971, 627 of 1971 and 608 of 1973 in the former and C.M. 644 or 1973 in the latter.
(2) Late Alex Gajetan Trinidade, who died in Delhi of an heartattack on May 15, 1967 at the ripe age of 83, was admittedly survived by a widow, appellant No. 1 herein, two sons, appellant No. 2 and respondent No. 1 and their respective wives, appellant No. 3 and respondent No. 2 and a minor grandson, son of respondent No. 1 and 2. Respondent No. 1 is the younger of the two sons. The elder son has no issue. It is a common case of the parties that at the time of his death the testator, who was a retired Goods Supervisor of the Northern Railway, was the exclusive owner of a two and a half storeyed building situated at 2, Netaji Subhash Marg, Darya Ganj, Delhi-6, in a portion of which he resided and carried on in the ground floor dry cleaning business. A part of the building was in the occupation of tenants. It is also a common case of the parties that the business, which was originally started by the testator and was carried on by him in the name and style of (D.G.) Kay, Drycleaners and in which the two sons were working as employees, was eventually converted into a partnership by a deed of partnership of August 1, 1960 (Ex. R.I) entered into between the testator and the two sons. According to Ex. R I, the two sons had been working in the said business as employees but the testator was not finding it possible to look after the business as sole proprietor "on account of his advanced age and constant heart trouble". The deed makes provision with regard to various matters, such as. shares of the parties and their entitlement to draw a monthly allowance. It further provides that "in the event of the death of party of the first part his wife shall succeed to his interest and rights in this partnership as a full-fledged partner." It is also a common case of the partics that at the time of his death and for many years since before that the testator had been living in his house with his wife, the younger son and his wife and their child and the elder son and his wife, the appellants No. 2 and 3 herein, had been living separate from the testator. It is alleged by the younger son, respondent herein, that on May 1. 1966, about a year before his death, the testator executed a will, Ex. P. 1. According to the will the testator owned and possessed the aforesaid property in Darya Ganj; was running his drycleaning business on the ground floor and owned, inter alia, "other moveable and immovable property". The will makes no mention of the deed of partnership, Ex. R 1 or the fact of the execution of the said document or that the dry cleaning business ceased to be the testator's a sole proprietory business and became a partnership business with a definite shares of the testator and the two sons. It further makes out that both the sons were "looking after their own affairs and as such both my sons have no claim over my property". It then recounts the fact that the testator's wife had been faithful to him and mentions that "she deserves my best attention" and purports to bequeath to his wife "right" to realise the recover rent from the tenants" including D.G. Kay Dry Cleaners & Dyers and gives her the right to relet any porttion that may fall vacant and utilise the rent so recovered "for her maintenance and upkeep during her life time only". It then affirms that except the aforesaid right "she will have no other right at transfer. mortage, a gift, any portion of the said property provided always that she will have a right of residing in the building during her life time." The will then records the bequest in favor of the testator's grandson, son of his younger son, respondent No. 1 "all my property, moveable and immoveable (subject of course to my wife's right to recover and obtain rent of 4 parts of the building as stated in clause (4) and bank account together with Dry Cleaning business." It further provide? that the grandson "will also give to my wife aforsaid Rs. 300.00 per month which if not shall be a first charge on the above building. The will then makes a provision for the management of the business and the other affairs in view of the fact that the grandson was then a minor and entrusts the task to the minor's father with the proviso that "under no circumstances during the tenure of the supervision of the affairs and property will he (the son) misappropriate the property or money. In the case of withdrawal of money for any special reason, this can be done only after obtaining counter signature of Mrs. Victoria Trinidade," the wife of the younger son. The maintenance of the building is made the responsibility of the "D.G. Kay Drycleaners and Dyers". The will purports to have been executed by the testator in the presence of Shri Chet Ram Mittal, Advocate and Mr. J.D. Cruz of the Municipal Corporation of Delhi who according to the recital in the document signed the document in the presence of the testator and "at the same time" and "in presence of each other". The will contains an endorsement that its copies had been made out for the widow, the grandson and his parents. The copy of the will is not marked either to the elder son, who had been disinherited, or to his wife.
(3) By a petition under Section 276 of the Indian Succession Act, the younger son, respondent No. 1, sought from the District JudgeLetters of Administration, with the will annexed, to the estate of the deceased. Annexure 'B' to the petition mentions the aforesaid immoveable property situated in Darya Ganj, the share of the testator in the dry cleaning business and certain bank accounts. It does not mention any other immoveable property. After the usual notices to the relations including the appellants and the citation, the grant was opposed by widow and elder son of the testator and the latter's wifeappellants herein on the ground that the testator left no "valid will" and that the testator had not bequeathed any part of his property in favor of the minor grandson. On the pleadings of the parties, the learned District Judge framed the following issues :
1. Whether Mr. Alex Cagetane Trinidade deceased duly executed the will propounded by the petitioner while he (the deceased) was of a sound disposing mind ? O.P. Petitioner.
(4) By a separate petition under Section 7 and 10 of the Guardian and Wards Act, 1890, the younger son of the testator sought an order appointing him as the guardian of the minor both with regard to his person and the property including the said property in Darya Ganj. This petition was also opposed by the widow of the testator their elder son and his wife in so far as the direction sought related to the property of the minor.
(5) At the trial of the petition for the grant, the petitioner examined Public Witness 1 Shri Chet Ram Mittal, Advocate, an attesting witness to the Will Public Witness 2 J.D. Cruz, the second attesting witness to it, himself as Public Witness 3 and a hand writing expert, Shri P.R. Mahant, Public Witness 4. The appellants examined RW1, Mulkh Raj, a salesman in the dry cleaning business of the testator; RW2 Kewal Krishan- manager of the aforesaid establishment; RW3 Amar Nath, a long time neighbour of the testator; RW-- V.K. Sakhuja, a hand writing expert. The widow, Mrs. Mary Assumption Trinidade and the elder son, V.F. Trinidade, the appellants also examined themselves.
(6) According to Public Witness 1, the testator was personally known to him as he resided and carried on business near the residence of the witness, the testator was of sound disposing mind and in good health when he signed the will Ex. P1 in the presence of the witness after reading it and accepting the contents to be correct and which was then signed by the witness. In cross-examination, he denied the suggestion that the testator came to the office of the witness with the wife of the younger son, the respondent herein, but the witness, however, admitted that E the other attesting witness J.D. Cruz, Public Witness 2, was not present at that time nor were the signature of Public Witness 2 appended in his presence Public Witness 2, J.D. Cruz, identified his signature on the will as an attesting witness and stated that the testator had asked the witness to attest the will at the residence of the witness and when he appended his signature, the signature of the other attesting witness was already there. The witness said that the testator acknowledged that Ex. Pi was a will made by him and added that the testator was in good health and in full senses and possessed of a sound disposing mind. In cross examination the only suggestion made was that when the testator came to the residence of the witness, he was accompanied by his daughter-in law, the wife of the younger son, which was denied by the witness. The younger son stated as Public Witness 3 that the will Ex. Pi was handed over to him by his father about two months prior to his death; that he was not present at the come of execution of the will or attestation thereof; and that at the time of giving evidence, his minor son was of 16 years of age. He also supported his claim to be the best person to be appointed as the guardian of the person and property of the minor. In cross examination. PW3 admitted that the will remained in his possession for about two months and denied the suggestion that it was in the custody of his wife. He, however, admitted that the business of dry cleaning was being carried on in partnership and suggested that after his father's death, he and his brother were the partners. He also admitted the correctness of partnership deed, Ex. R1. He was, however, unable to recall if his mother had been substituted as a partner in place of the testator- A suggestion was also made to him that in income tax returns his mother had also been shown as a partner in place of the testator but he stated that he did not remember. The witness was unable to explain why the testator had provided in the will a safeguard by way of counter-signature of his wife in respect of withdrawals that may be made by the witness on behalf of the minor. Public Witness 4, a hand writing expert expressed an opinion on the basis of a comparison of admitted signatures with disputed signatures of the testator for the reasons set out in his report, Ex. Public Witness 4/1, that all the signatures examined by him including the one on Ex. Pi were of the same person. He also produced and proved enlarged photographs, Ex. Public Witness 4/2 to Ex. Public Witness 4/5 and the negatives Ex. Public Witness 4/6 to Ex. Public Witness 4/9.
(7) According to RW1, he had been employed in the dry cleaning business since 1966; the testator had met with an accident in 1964 as a result of which he lost his consciousness for more than a year before his death; he could not go about and was incapable of signing a will; he was unable to identify his friends and relatives; had developed heart-trouble; and will Ex. Pi did not bear the signature of the testator. RW2, Kewal Krishan, claimed to have been the manager in the afore- said business since 1960 and had 16-17 years association with the testator and claimed that Will Ex. Pi did not bear the signature of the testator. He further claimed that the deceased was a heart patient and had met with an accident in the year 1964 and was not in his senses during the last 15-16 months of his life and remained bed-ridden throghout this period. It was further claimed that during the said period the testator was unable to identify any one. He further deposed that the testator never mentioned to him that he had made a Will. In cross- examination he admitted that the propounder had protested that the witness had removed some debit vouchers but claimed that the file of the said vouchers had been given by the witness to the other brother, respondent herein. RW3, Amar Nath, who was a neighbour of the testator for 14 years, deposed that the testator had heart-trouble in 1957, had an accident in 1964, during 15-16 months preceding his death, had been suffering from severe heart-trouble, in May 1966, when the testator was in the hospital, he was conscious at times, was bedridden and could not move about and was never seen moving out of the house after March, 1966. In cross-examination he admitted that a times in spite of the illness the testator used to talk to the witness sensibly while at times he was not in his senses and added that his senselessness was due to weakness and ill-health RW4, V. K. Sakhuja, who claimed to have compared the disputed signature on Ex. Pi with the admitted signatures of the testator, deposed that as a result of he comparison he was of the opinion that the author of the signature of Ex. R1, the partnership deed, an admitted document, was not the author of signature on the will Ex. PI. The detailed reasons were set out by him in his report Ex. RW4/1. He also proved Ex. RW4/2, the photo enlargement and Ex. RW4/3, the negative of the two documents. The widow of the testator deposed as RW5 that the testator had been keeping indifferent health since 1957 when he had an heart-attack and was in bed for months thereafter; that in August, 1964 he was knocked down by a bus and sustained injuries on the head and other parts of the body; that some of his ribs were fractured: that he also had a concussion of the brain as a result of the accident; that during the last 15 or 16 months of his life, his physical condition was very had and he was bed-ridden throughout and could not move about nor was he in his full senses during this period; and that in May, 1966, the testator neither made any Will nor expressed any intention to make one. She added that she had been living throughout with the testator since their marriage which took place about 57 years ago. In cross-examination she admitted that Dr. Rao of Connaught Place was treating the testator and claimed that the testator was not able to look after the business during his last illness. She. however, admitted that vouchers Ex. P4 to Ex. P8, pay bill Ex. P9 bore the signatures of the testator. She also admitted that Ex P10. a letter, was written in the testator's hand throughout. She admitted that the testator went to Goa in January 1966 but added that he returned after fifteen days because of sickness. She, however, stated that she came to know of the Will when she received notice of the proceedings, Rw 6, the elder son, by and large, supported the evidence of his mother and added that signature on the Will Ex. P 1 was a forgery. In cross-examination he admitted that no deed of partnership had been executed after the testator's death. He admitted the signatures of the testator on various documents Ex. P 4 to Ex. P 6 Ex. P 8, Ex. P 9, Ex. P 10, Ex. P 11, Ex. P 13, to Ex. P 19. and Ex. P 20 to Ex. P 26. To court question if the younger son had given consent in writing to the substitution of the testator's widow as a partner in his place, the witness produced vouchers Ex. RW6/1 and Ex. RW6/2 in respect of payments made to the mother after the death of the testator which, according to the witness, bore the signatures of the younger son. In further cross-examination, he admitted that similar payments were made to the widow after June and July, 1967 also. He, however, denied the suggestion that payments mentioned in Ex. RW6/1 and Ex. Public Witness 6/2 were made pursuant to the provisions made in the will for the maintenance of the widow. In cross- examination, he stated that the papers used to be taken to the testator for his signatures on the first floor where he was residing.
(8) By his judgment under appeal the learned District Judge held. accepting the evidence of Public Witness 1. Shri Chet Ram Mittal, Advocate, J. D. Cruz Public Witness 2, that Ex. P 1 had been duly proved. The learned District Judge explained the discrepany between the evidence of Public Witness 1 and Public Witness 2 on the one hand and the recital in the Will, Ex. P 1 on the other to the effect that the attesting witness had signed in the presence of the testator and of each other by an observation that possibly "when the draft will was typed out the legator hoped that both the witnesses would be present and that the will would be executed and attested at the same sitting". The Court further expressed the view that this recital in the Will does not, however, imply that the attestation by the two witnesses at different places was in any way legally defective. The learned District Judge, however, observed that the propounder was not present at the time of execution of the Will and that in any event the main beneficiary was his son and that the propounder had been appointed as an executor or manager of the estate and even otherwise was the lawful guardian of the beneficiary. The learned District Judge noticed that the whole trust of the evidence produced by the appellants was to show that the deceased was heart patient since 1944; had met with an accident in 1964; and could not possibly be of sound disposing mind when the Will was alleged to have been executed but observed that the execution of the contemporaneous documents by the testator indicated that in spite of reverses in his health, he was of sound disposing mind and was attending to his business up to the last. The learned District Judge also adversely commended on the inability of the appellants to produce Dr. Rao, who was treating the testator. The evidence of both the experts was ignored on the ground that they always supported the party which paid them. The learned District Judge further observed that the Will even otherwise appeared to be a natural document; that ample provision has been made for the widow; that both the sons of the testator were married and looking after their own affairs and had, therefore, no claim over his property. The learned District Judge then observed that "their partnership interest in the business would naturally remain unaffected by any disposition made by the deceased." The circumstance that the main beneficiary was the minor son of the propounder was justified by the learned District Judge because according to him "the old man may appear to have some love and affection for his minor grand son". The learned District Judge accordingly granted letters of Administration, with the ill annexed, on the petitioner executing a bond in the sum of Rs. 50,000.00 with one surety in the like account.
(9) By a separate judgment in the petition for the appointment of a guardian, the learned District Judge appointed the propounder as the guardian of the person and the property of his minor son on his executing a bond in the sum of Rs. 50,000.00 with one surety in the like amount undertaking to discharge his obligations as a guardian in a proper manner. Certain other directions were also made.
(10) Aggricved by the aforesaid judgments, the appellants have filed two separate appeals, F.A.O. 58/69 challenges the judgment of the District Judge in so far as the District Judge has appointed guardian of the property of the minor. F.A.O. 59/69 challenges the judgment of the District Judge granting letters of administration.
(11) It appears that while the trial of the petition for the grant was more or less a tame affair, in the appeal before this Court, a successful attempt was made on behalf of the appellants to widen the scope of the controversy between the partics by four miscellaneous applications. By C.M.626 of 1971, the appellants sought permission to raise two additional grounds of appeal incorporating a challenge to the jurisdiction of the District Judge to entertain the petition and a plea that the petition was not maintainable by virtue of the allegation that the testator owned an immovable property in Goa of the value of more than Rs. 10,000.00 , which had not been mentioned in the petition. By C.M. 627 of 1971, the appellants sought an order of the dismissal of the appeal on the preliminary ground that the District Judge had no jurisdiction to try the petition for the reason mentioned above. By C.M. 628 of 1971, leave of the Court was sought to produce additional evidence to prove that the testator owned immovable property at Goa and as to its value to reinforce the plea of lack of jurisdiction etc. By C.M. 673 of 1971, leave was sought to amend the written statement so as to incorporate the preliminary objections with regard to the jurisdiction of the District Judge and the maintainability of the petition for the grant of Letters of Administration.
(12) By an order made by my learned brother Ansari J. on September 15, 1971, the learned Judge came to the conclusion that prima fade the objections regarding the maintainability of the petition for the grant and with regard to the jurisdiction of the District Judge to make the grant were not entirely baseless even though the permission to raise these objections was delayed. The learned Judge, however, observed that it must first be determined if the testator owned any properly in Goa of which the value was more than Rs. 10,000.00 . It was further observed that the appeal arising out of the grant could not be disposed of on the preliminary ground of lack of jurisdiction until the aforesaid question had been determined. The learned Judge accordingly granted leave to the appellants to amend their written statement in terms of C.M. 673/71 and to raise additional grounds of appeal in terms of C.M. 626/71 and directed that after the amendments have been made in the written statement, fresh issues will be framed and the matter will be remanded to the trial Court to record evidence with regard to the question as to the existence and value of the property in Goa and its effect. C.M. Nos. 626, 628 and 673/71 were accordingly disposed of while C.M. 627/71 was kept alive. By a subsequent order of October 14, 1971, the learned Judge framed the following issues for trial by the District Judge:
1. Whether the deceased Shri Alex Gajetan Trinidade owned properties of the value of more than Rs. 10,000.00 in Goa territory at the time of his death ? (O.P.As.)
2.If the answer to issue No. 1 is in the affirmative, what is the legal effect of the omission by the respondents to mention these properties in their application under section 276 of the Indian Succession Act? (O.P.As.)
(13) On remand the learned District Judge recorded the evidence of the parties on the aforesaid two additional issues and submitted his report of March 1, 1973 recording his conclusions on the two additional issues. On the first question the learned District Judge returned a finding that, on the material placed on the record, it was proved that the testator owned immovable property in Goa of the value of more than Rs. 10,000.00 at the time of his death. On the second question, as to the legal effect of the aforesaid conclusion, it was held, negativing the contention of the respondents herein that the Indian Succession Act, 1925 did not then extend to Goa that on the annexation of Goa, the Succession Act was automatically extended to that territory and that no further extension was necessary, and that in the absence of any mention of the sad properly in the list annexed to the petition for the grant, the petition was defective and, therefore, not maintainable. It was further held that the value of the proper in Goa being more than R.s. 10.000.00 , the District Judge had no jurisdiction to try the petition by virtue of clause (b) to the proviso to Section 273 of the Indian Succession Act. Being aggrieved by the report of the learned District Judge the respondents, herein, have filed objections to the report and the appellants have filed a reply to the objections. The respondents have challenged the findings with regard to the existence and value of the Goa property on the merits as also on the question as to its legal impact on the maintainability of the petition and the jurisdiction of the District Judge. These objections are listed as C.M. 644 of 1973.
(14) By C.M. 27 of 1971, respondent No. 1 seeks leave of the Court to file a suit in his own right for dissolution of the firm D. G. Kay Drycleaners and Dyers and rendition of accounts and for steps to wind up the partnership business. By C.M. 608 of 1973, the appellants seek leave to assail the judgment of the District Judge on the additional ground that the District Judge had no jurisdiction to entertain the petition for the grant in view of the provisions of sub-section (2) of Section 5 of the Delhi High Court Act, 1966, as amended.
(15) Before dealing with the various questions that arise in the appeals it would be appropriate to dispose of the appellants' application being C.M. 608 of 1973 seeking leave to challenge the jurisdiction of the District Judge to deal with the petition for the grant by virtue of the provisions of Section 5(2) of the Delhi High Court Act, 1966. As the plea of the appellant raised a pure question of law and one of jurisdiction going to the very root of the matter I had allowed the appellants to raise the ground and heard both the parties at length in that behalf. No formal order was, however, recorded. Leave is, therefore, granted to the appellants to raise the aforesaid plea and the application is disposed of accordingly.
(16) The various preliminary objections with regard to the jurisdiction of the District Judge to entertain the petition for the grant and the maintainability of it may now be considered.
(17) The first preliminary objection is built on the impressive edifice of Section 5(2) of the Delhi High Court Act, 1966. Section 5 deals with the jurisdiction of the High Court. Sub-section (2) deals with the ordinary original civil jurisdiction while sub-section (1) deals with the other jurisdiction. The Section reads thus:
"5.(1) The High Court of Delhi shall have, in respect of the territories for the time being included in the Union Territory of Delhi, all such original appellate and other jurisdiction, as under the law in force immediately before the appointed day, is exercisable in respect of the said territories by the High Court of Punjab. (2) Notwithstanding anything contained in any law for the time being in force, the High Court of Delhi shall also have in respect of the said territories ordinary original civil jurisdiction in every suit the value of which exceeds (fifty thousand rupees)".
(18) Shri S. C. Malik, learned counsel for the appellants, contends that under Section 264 of the Indian Succession Act, District Judge has jurisdiction to grant Letters of Administration within his district; that in terms of Section 2(bb) of the said Act, District Judge means ; the Judge of a principal Civil Court of original jurisdiction ; that under Section 266 of the said Act the District Judge has the like powers and authority in relation to the grant of probate and letters of administration and all matters connected therewith as are by law vested in him in relation to any suit or proceedings pending in this Court; that after coming into force of the Delhi High Court Act, 1966, by virtue of the non obstante clause contained in sub-section (2) of Section 5 of that Act, the Court of the District Judge Delhi, has ceased to be the principal civil Court of original jurisdiction with respect to any suit the value of which exceeds fifty thousand rupees; that after the aforesaid Act, the principal civil Court of original jurisdiction for the purpose of matters the value of which exceeds fifty thousand rupees will be the High Court and that the value of the subject-matter of the petition for the grant in the present case being admittedly more than one lakh even, if the value of the Goa property is ignored, High Court alone had jurisdiction to entertain the petition; and that the Court of the District Judge accordingly had no such jurisdiction. In support of this contention, reliance was placed on Bakhshi Lochan Singh and others v. Jathedar Santokh Singh and others, 2nd (1971) I Delhi 615 (1) Smt. Sayabala Dasi v. Smt. Sudharanee Dasi . In the matter of Sailendra Krishna Ray, Air 1949
Patna 318(3) ; Manubhai Chunilal and others v. General Accident Fire and Life Assurance Corporation, Ltd., Air 1936 Bombay 363(4) and in the matter of G. A. Kuppuswami Nayagar; Air 1930 Madras 779(5).
(19) Learned counsel for the respondents on the other hand contends that Section 5(2) of the Delhi High Court Act, 1966 deals with the ordinary original civil jurisdiction of the High Court and left unaffected the other jurisdiction of the Courts such as the testamentary and intestate jurisdiction and sought to distinguish the afforesaid decisions.
(20) It appears to me that this contention of the appellants is not sustainable. It is no doubt true that sub-section (2) of Section 5 of the Delhi High Court Act, 1966 confers on the High Court of Delhi ordinary original civil jurisdiction in every suit the value of which exceeds fifty thousand rupees and, therefore, to that extent, after coming into force of the aforesaid Act as amended, this Court has become the principal Civil Court of original jurisdiction, as held by this Court in the case of Bakshi Lochan Singh (supra), but the contention that by virtue of the aforesaid provision this Court has become the principal Court of original civil jurisdiction with respect to all matters of the said value including matters in which the testamentary and intestate jurisdiction is invoked, so as to divest the District Judge of jurisdiction to deal with such matters, ignores the limited purpose for which sub-section (2) confers the ordinary original civil jurisdiction and implicdly ousts the corresponding jurisdiction of the District Judge. A bare reading of sub-section (2) of Section 5 leaves no manner of doubt that the ordinary original civil jurisdiction has relation to "every suit" . This obviously leaves jurisdiction other than that exercisable in a suit was such as testamentary and intestate jurisdiction, as indeed other jurisdiction, unaffected. The mere fact that Section 266 of the Indian Succession Act equates the power of the District Judge in relation to proceedings for the grant of probate and Letters of Administration and all matters connected therewith with the powers that the District Judge would have in relation to any suit or proceedings pending in his Court does not obliterate the distinction between the ordinary civil jurisdiction of the District Judge and the testamentary and intestate jurisdiction of that Court under the Indian Succession Act. Section 266 merely indicates the ambit of the power of the District Judge while dealing with the matters in exercise of its testamentary and intestate jurisdiction. The non obstante clause in sub-section (2) of Section 5 operates only in relation to provisions contained in any law with regard to jurisdiction of Courts vis-a-vis suits and leaves Other jurisdictions untouched. It is significant that while Section 264 of the Indian Succession Act confers power on the District Judge in relation to matters of grant of probate and letters of administration and the expression 'District Judge' is dcfined as meaning a Judge of a principal Civil Court of original jurisdiction. Section 300 of the Indian Succession Act, nevertheless, provides for the concurrent jurisdiction of the High Court in exercise of all the powers corferred by that Act upon the District Judge.
(21) A reference to the. histoncal background of the provisions of Section 5(2) of the High Court Act may be useful in ascertaining its scope and effect. The Letters Patent constituting the High Court of Judicature at Lahore conferred on the High Court extra ordinary original civil jurisdiction by clause 9 as well as testamentary and intestate jurisdiction by clause 24. The said Letters Patent, however, did not confer any ordinary original civil jurisdiction on the said High Court unlike the Letters Patent constituting the High Courts of Judicature at Bombay, Calcutta and Madras, each of which conferred on the said High Courts, in addition to the extraordinary original civil jurisdiction and the testamentary and intestate jurisdiction, ordinary original civil jurisdiction as well. Clause 11 of the Letters Patent constituting the Calcutta High Court and the corresponding provisions in the Letters Patent constituting the Bombay and Madras High Courts conferred ordinary original civil jurisdiction on these High Courts. Clause 34 conferred the testamentary and intestate jurisdiction corresponding to clause 24 of the Letters Patent constituting the Lahore High Court. By Section 5(2) of the High Court Act, 1966, the ordinary original civil jurisdiction was conferred on the Delhi High Court and, to that extent, the Delhi High Court was brought at par with the aforesaid three High Courts. It need hardly be mentioned that the Punjab and Haryana High Court or its immediate predecessors, the Punjab High Court or the East Punjab High Court never had any ordinary original civil jurisdiction. Section 5, however, left unaffected the testamentary and intestate jurisdiction which by virtue of Section 5(1) of the Delhi High Court Act, 1966 was conferred on the Delhi High Court. Clause 24 of the said Letters Patent while conferring on the Lahore High Court the testamentary and intestate jurisdiction, clearly saves the provision of any law which has been made by the competent legislative authority for India "by which power is given to any other Court to grant such probates and letters of administration". This clearly saves the concurrent powers of the District Judge in relation to the testamentary and intestate jurisdiction. The argument, therefore, that Section 5(2) ousts the testamentary and intestate jurisdiction of the District Judge ignores the distinction between the original civil jurisdiction of a Court and the ordinary original civil jurisdiction as also between the ordinary civil jurisdiction and the testamentary and intestate jurisdiction.
(22) The contention, in so far as it seeks reinforcement from the definition of the expression 'District Judge' by Section 2(bb) of the Indian Succession Act, is based on a misconstruction of the said provisions and clearly ignores its legislative history. The Indian Succession Act, 1925 throughout uses the expression 'District Judge' in relation to testamentary and intestate jurisdiction because both according to the scheme of that Act, as indeed the Letters Patent referred to above, the High Courts had concurrent testamentary and intestate jurisdiction with the District Judges. The expression 'District Judge' was defined by Section 3(17) of the General Clauses Act, 1897 as meaning, "the Judge of a principal civil Court of original jurisdiction, but shall not include a High Court in the exercise of its ordinary or extraordinary original civil jurisdiction". It is significant that what clause (17) of Section 3 excluded from the ambit of the expression 'District Judge' was not the High Court in relation to the exercise of its jurisdiction in its entirety but only "in the exercise of its ordinary or extraordinary original civil jurisdiction", implying thereby that the expression 'District Judge' would include even a High Court in the exercise of its jurisdiction other than ordinary or extraordinary original civil jurisdiction, which, to put differently, would mean that the expression 'District Judge' would not exclude the High Court in the exercise of its testamentary and intestate jurisdiction, which, as pointed out above, has been separately dealt with in all the Letters Patent. The expression 'District Judge' had not been defined by the Indian Succession Act, 1925 until the addition of clause (bb) to Section 2 of that Act by Section 2 of Act 18 of 1929. Until then, therefore, the expression was to be regulated by the meaning assigned to it by the General Clauses Act. This led to a controversy in the year 1929, if, in view of the exclusory part of the definition of expression 'District Judge' in the General Clauses Act, High Court would have power to grant probate notwithstanding the power conferred on it by the Letters Patent as indeed Section 300 of the Indian Succession Act. In the referring order in the case G. A. Kuppuswami Nayagar, Air 1930 Madras 779, (5) the learned referring Judge dwelt on this aspect of the matter and pointed out, after referring to various clauses of the Letters Patent, that for the purpose of determining the meaning of the words "ordinary or extraordinary original civil jurisdiction" in Section 3 clause (17) of the General Clauses Act, "all that is excluded is the High Court acting under cls. 11 to 18, Letters Patent, and that the High Court exercising any other original jurisdiction would fall within the definition of District Judge". In the meanwhile, however, the Indian Succession Act had been amended by Act 18 of 1929 by the addition of clause (bb) of Section 2. and that is why the Bench to which the case was referred felt relieved of the duty to consider the matter and held that in view of the amendment, the petition for grant was maintainable in the High Court. As would be seen from the new definition that, for the avoidance of doubt, the exclusory part of the definition in the General Clauses Act was dropped so as to widen the scope of the expression 'District Judge' to include the High Court in relation to its testamentary and intestate jurisdiction. It is, however, not possible to read in the wider definition any exclusion of the 'District Judge' as such from the ambit of the said definition or to hold that merely because ordinary original civil jurisdiction has been conferred on this Court in relation to suits of a certain pecuniary valuation, the testamentary and intestate jurisdiction of the 'District Judge' had thereby been taken away.
(23) The cases cited on behalf of the appellants do not appear to give any support to the contention urged on behalf of the appellants. In the case of Kuppuswami (supra) the question was if the High Court had the jurisdiction in spite of the exclusory definition in the General Clauses Act but the decision of the question was unnecessary, in view of the amendment of the Indian Succession Act the further question, if in view of the definition of the expression in the Succession Act, the District Judge would have no testamentary and intestate jurisdiction, if High Court also had ordinary original civil jurisdiction, was neither raised nor considered, even though the High Court of Madras had, by virtue of the Letters Patent, the ordinary original civil jurisdiction as well as testamentary and intestate jurisdiction. In the case of Smt. Satyabala Dasi v. Smt. Sudharanee Dasi , the only question was if the expression 'District Judge' as defined in Section 2(bb) of the Succession Act included a Judge of a High Court or not and it was held that High Court had the necessary jurisdiction. The Calcutta High Court similarly had the ordinary original civil jurisdiction under the Letters Patent as well as the testamentary and intestate jurisdiction and yet the question that, by virtue of that, the District Judge as such would not have jurisdiction was never raised. In the case of Sailendra Krishna Ray, Air 1949 Patna 318(3), it was held that, inasmuch as Patna High Court did not have original civil jurisdiction, the expression 'District Judge' in Section 2(bb) did not include a Judge of Patna High Court which was not a principal court of original civil jurisdiction. The question if the High Court had such a jurisdiction it would exclude the testamentary or intestate jurisdiction of the District Judge as such was neither considered nor decided. In the case Manubhai Chunilal (supra) also the only question was if the expression 'District Judge' included a Judge of the High Court or not and the contention with which I am concerned was neither raised nor considered, even though in the case of Bombay as well, the High Court had both the ordinary original civil jurisdiction as well as the testamentary and intestate jurisdiction. The case of Bakshi Lochan Singh (supra) was confined to suits and left the other jurisdiction untouched. The case of Manik Lal Shah v. Hira Lal Shaw, , on the contrary, .supports the contention of the
respondents. It was held in that case that the High Court on its original side, had concurrent jurisdiction with the District Judge in all testamentary matters, even though the Calcutta High Court also had ordinary original civil jurisdicion. This contention of the appellants must, therefore, be rejected.
(24) The next preliminary objection relates to the jurisdiction of the District Judge and the maintainability of the petition on the ground that a part of the property belonging to the testator, of the value of more than Rs. 10,000.00 was situated within the territory of Goa.
(25) On this aspect of the matter, the contention of the learned counsel for the appcllants is that having regard to the scheme of the Indian Succession Act, notably the provisions of Sections 211, 232 and 273 on the grant the administration of the entire property vests in the executor and that the grant must therefore, relate to the entire property. It is, therefore, contended that where property of the value of more than Rs. 10,000.00 was situated beyond the territorial jurisdiction of the District Judge, District Judge had no jurisdiction to make the grant and it was High Court alone which was competent. It is further contended that in any event, the petition for the grant was not maintainable as the respondents did not include the Goa property in the schedule annexed to the petition. Reliance was placed on Lal Singh v. Mt. Kishen Devi and others, Air 1929 Lahore 72(7); Sardar Singh and another v. Teja Singh and others, Air 1946 Lahore 277(8) ; Sumitrabai N. Nadkarni v. Vishweshwar, Air 1946 Bombay 109(9) ; and H. C. Ramaswamy Ayengar and others v. H. C. Lakshminarasimhan and others, Air 1965 Mysore 87(10).
(26) Learned counsel for the respondents, on the other hand, contends that mere situs of a part of the property outside the jurisdiction of the District Judge did not divest the jurisdiction to make the grant to the extent of the property which was within jurisdiction. It was further contended that the mere omission to mention the Goa property, assuming that the testator had any such property, would not make the petition incompetent as the Indian Succession Act did not, at the material time, apply to Goa, which had its own local laws dealing with the administration of the estate of a deceased person which had been preserved on the annexation of the territory of Goa and its consequent inclusion in the Indian Union. Learned counsel criticised the findings of the learned District Judge with regard to the factum and value of the property in Goa as also the legal effect of it on the jurisdiction of the District Judge and that of the omission to include it in the schedule to the petition on the maintainability of it. Reliance was placed on (Gurbachan Kaur v. Satwant Kaur and others, Air 1925 Lahore 493 ; T. J. George s/o Thattil Joseph v. Mrs. Lucy Kochuvarred, ; Justiniano Augusto da P. Barreto etc. v. Antonio
Vicente de Fonseca etc., Air 1969 Goa 124 and .
(27) The basic question that requires consideration, therefore, is whether the testator had, at the time of his death, any property in Goa and as to its valuation. As has been pointed out above, this preliminary objection was not raised during the trial of the petition but was allowed to be raised by this Court in the course of the hearing of the appeal, as a result of which two additional issues were framed and were remitted to the District Judge for trial and report. On the basis of the evidence produced before it, the Court has returned the finding that the testator owned immovable property situated within the territory of Goa of the value of more than Rs. 10,000.00 at the time of his death. Learned District Judge has further held that on the annexation of the territory of Goa, the Indian succession Act automatically stood extended to that territory; that the local law with regard to inventario proceedings under the Goa Code was not analogous to the Indian Succession Act and did not, therefore, exclude the operation of the Indian Succession Act: that by virtue of the situs of the said property outside his juridiction the District Judge had no jurisdiction to make the grant: and that on account of the omission to mention the aforesaid property in the schedule to the petition, the petition was defective and, therefore, not maintainable.
(28) In the proceedings before the District Judge for the trial of the two additional issues, considerable oral and documentary evidence was produced on behalf of the appellants, both with regard to the existence of the Goa property and its valuation. On the basis of the aforesaid evidence and in the absence of any evidence by way of rebuttal, the learned District Judge has returned the finding that at the time of his death, the testator owned immoveable property in Goa of the value of more than Rs. 10,000.00 . In this situation, the learned counsel for the respondents did not seriously challenge the aforesaid findings and I have, therefore, no reason to differ from the conclusion of the learned District Judge.
(29) The next questions that, therefore, require consideration are 'as to whether jurisdiction of the District Judge was ousted by virtue of the fact that the testator owned, on the date of his death, property situated in Goa which was of the value of more than Rs. 10,000.00 and it the omission of the respondents to mention the said property in the Schedule to the petition rendered the petition incompetent, even if the District Judge had the necessary jurisdiction to deal with it.
(30) It appears to me that the question as to ouster of the jurisdiction of the District Judge and to the maintainability of the petition ill respect of only part of the property must, both on principal and precedent, be answered against the appellants.
(31) The exclusion of the jurisdiction of the District Judge was sought to be justified with reference to the provisions of Section 273 of the Indian Succession Act. The Section runs thus :
"273.Conclusiveness of probate or letters of administration- Probate or letters of administration shall have effect over all the property and estate, moveable or immoveable, of the deceased, throughout the (State) in which the same is or are granted and shall be conclusive as to the representative title against all debtors of the deceased, and all persons holding property which belongs to him, and shall afford full indemnity to all debtors, paying their debts and all persons delivering up such property to the person to whom such probate or letters of administration have been granted: Provided that probates and letters of administration granted- (a) by a High Court, or (b) by a District Judge where the deceased at the time of his death had a fixed place of abode situate within the jurisdiction of such Judge, and such Judge certifies that the value of the property and estate affected beyond the limits of the (State) does not exceed ten thousand rupees, shall, unless otherwise directed by the grant, have like effect throughout the other (States)."
According to the marginal note to the Section and even otherwise on a reference to its provision it is clear that it was intended to deal with the conclusiveness of probate or letters of administration and the extent to which they would have effect. It clearly provides that the probate or letters of administration would have effect over all the property and estate moveable or immoveable "of the deceased, throughout the (State) in which the same is or are granted". The proviso to the Section, however, extends the effect of the grant over property and estate situated beyond the limits of the State if (a) the grant is made by a High Court, or (b) where the grant is made by a District Judge the District Judge certifies that" the value of the property and .estate affected beyond the limits of the State did not exceed Rs. 10,000/-. In the first instance, this section does not deal with jurisdiction at all. The only effect of the Section is that where the grant is made in accordance with the main Section, its effect is confined to the .estate within the limits of the State where the grant is made. The proviso to the Section, however, extends the scope of the grant beyond the limit of the State, if either of the two conditions referred to in the proviso are satisfied. It is, therefore, not possible to spell out of the said provision any demarcation of the jurisdiction of the District Judge or any limitation on it. Assuming, however, that by implication it regulates the jurisdiction of the District Judge, I do not see how the grant by the District Judge in relation to the estate, admittedly situated within the terriorial limits of the jurisdiction of District Judge, could be said to be without jurisdiction by virtue of anything in the said section. The grant by the District Judge did not purport to effect any property outside his jurisdiction whether of the value of Rs. 10,000/- or not, and that being so, the grant was within the jurisdiction of the District Judge. If by the grant the District Judge had purported to effect the esate situated outside his jurisdiction which was of the value of more than Rs. 10,000/- there would perhaps be merit in the contention that the District Judge had exceeded the limit of his jurisdiction although, to my mind, even such a challenge would not wholly succeed because the jurisdiction of the District Judge being unchallenged in so far as the estate within his jurisdiction was concerned, the grant as a whole would not be vitiated even though its effect would be confined in terms of the provision of Section 273(b) to the estate within his jurisdiction and to that extent, at the most, it may perhaps be said that the grant, in so far it is related to the estate outside the jurisdiction, was of no effect and, therefore, in that sense without jurisdiction. No such situation has arisen in the present case. This contention must, therefore fail.
(32) The maintainability of the petition was sought to be challenged on the basis of the provisions of Sections 211, 232, 273 as well as 276. Section 211 provides that the executor or the administrator, as the case may be, of a deceased person "is his legal representative for all purpose, and all the property of the deceased person vests in him as' such". Section 232 provides for the grant of administration to universal or residuary legatees and, inter alia, provides that in case a testator had not appointed an executor or if he was appointed, he was legally incapable of acting or is otherwise not available, "an universal or a residuary legatee may be admitted to prove the will, and letters of administration with the will annexed may be granted to him of the whole estate, or of so much thereof as may be unadministered". Section 273 has already been noticed above. Section 276 provides or a petition for probate and deals with the form in which the petition should be made. Clause (d) of sub-section (1) of this Section provided that the petition should, inter alia, mention "the amount of assets which are likely to come to the petitioner's hand". Sub-section (3) of this Section is in the following terms:
"276.(3) Where the application is to the District Judge and any portion of the assets likely to come to the petitioner's hand is situate in another (State), the petitioner shall further state the amount of such assets in each (State) and the District Judges within whose jurisdiction such assets are situate."
"IT is not disputed that the petitioner in the present case made no mention whatever of the Goa property in the annexure to the petition. In fact the respondents throughout disputed the existence of such a property. On this aspect of the matter there was considerable controversy before me, as indeed before the District Judge, during the trial of the two additional issues before him, that the Indian Succession Act had not, during the material period, been extended to Goa which continued to be governed by its local laws with regard to testamentary and intestate jurisdiction and it was contended that, in view of that, it could not be said that the District Judge had no jurisdiction to make the grant because of the existence of the immovable property in Goa
(33) So far as the extension of the Act to Goa is concerned it was not disputed that Goa was not part of India either when the Indian Succession Act 1925 was enacted or the Constitution came into rce, nor indeed when the General Clauses Act was brought to the Statute Book. The appellants, however, contends and this contention prevailed with the learned District Judge, that on the annexation of Goa to India, Goa became part of India and all the existing laws in force in India which purport to extend to the "whole of India" automatically got extended to the annexed territory obviating the necessity of a specific extension. Reliance in support of this contention was placed on Section 3(28)(c) of the General Clauses Act which provides that India shall mean "as respects any period after the commencement of the Constitution, all territories for the time being comprised in the territory of India", and it is, therefore, argued that "keeping that definition in view the expression India' in Section 2(cc) of the Indian Succession Act meant the territory of India as may be modified from time to time or, to put it differently, the territory of India from time to time so that it incorporates some sort of an element of flexibility in the definition". This interpretation appears to me to be opposed to all canone of interpretation. According to Article 1 of the Constitution the territory of India comp- rises (a) the territories of the States, (b)the Union Territories specified in the 1st Schedule, and (c) such other territories as may be acquired. "When any Statute uses the expression India' it must, therefore, be deemed to refer to the territories that are included in India when the statute was enacted and the expression for the time being in the General Clauses Act must, therefore, be given a reasonable interpretation to mean as the territory at the time when the statute uses the expression 'India' and not as including a territory that may be added to the Union by annexation or otherwise from time to time." Such a flexible concept could have been possible in the days of the Empires when there was no rigidity about the frontiers of the various sovereign States because- of frequent annexation. In the present day world, however, annexation of territories belong to another sovereign country is a rare phenomenon and the annexations that we hear of are only those that are the result of an adjustment of boundaries for historical reasons as in the case of Goa where a territory, which was once part of India, was merely restored to it. Such a restoration may be done by an unilateral act of a sovereign government or by bilateral act of the concerned States. That statutes do not get automatically extended to new territories that may be added to India is also legislatively recognised in the provisions of sections 5 and 6 of the Goa, Daman and Diu (Administration )Act, 1962 and similar provisions in quite a few other statutes which deal with the extension of laws to the territories which are added to the Union of India. Section 5 provides for continuance of existing laws and their adaptation, while Section 6 confers power on the Central Government to extend, with such restrictions or modifications as it thinks fit, to Goa, Daman and Diu, any enactment which is in force in any State. It must, therefore, be held that "in the absence of its extension, to the said territory the Indian Succcssion Act did not, during the material period, apply to the territory of Goa."
(34) What then is the effect of the omission to mention the Goa property in the Annexure to the petition on its maintainability. In the determination of this question, the extension of the Act to Goa or otherwise, to my mind, does not make any difference. Even if the Act did not extend to Goa, there was nothing to bar the respondents to mention the said property or for the District Judge to make the grant in relation to such estate if the requirement of Section 273 of the Act were satified. If such a grant would not have been accepted in Goa by virtue of the non-extension of the Act or because there -was any local law dealing with testamentary and intestate matter of which the operation was saved, to my mind, would not have made any difference either to the jurisdiction of the District Judge or to the competence of the proceedings before him. It is, however, unnecessary to take this matter any further or to consider if the inventario proceedings referred to in the Goa Code, which was claimed to be a parallel law, does or does not deal with testamentary and intestate matters. This is so because in my view "the omission to mention the said property in the petition for the grant before the District Judge in respect of only of part of the entire estate, though of the entire estate within jurisdiction, would not in any manner impinge either on his jurisdiction or affect the maintainability of the petition."
(35) It is a well known principle of law that whenever "a litigant comes to a Court for relief he must ordinarily seek the entire relief to which he is entitled on a particular cause of action. This is based on a sound principle of public policy that multiplicity of judicial proceedings should be avoided and finds legislative recognition in the provisions of Order 2 Rule 2 of the Code of Civil Procedure. It is the extension of the same principle that can be spelt out from Section 211, as indeed, to some extent, from Section 232 of the Indian Succession Act that is why the executor or the administrator becomes the repository of all power in relation to entire estate of a deceased person and the learned counsel for the appellant is right, therefore, when he contends that ordinarily a petition for a grant must be made in respect of the entire estate. There are, however, well recognised exceptions to the rule". One such exception is set out in Section 232 itself that is where part of the property has already been administered. Some of the exceptions are set out in Sections 237 onwards which deal with limited grants. Where, however, "part of the estate is situated outside the jurisdiction of the Court, which is asked to make the grant in relation to the estate within jurisdiction, it would also constitute an exception because unless the conditions of Section 273 are satisfied such a Court would not be able to make an effective grant in so far as property beyond jurisdiction, which is in excess of Rs. 10,000/-, is concerned unless such Court is' a High Court. It does not, however, follow that merely because the grant sought or made is confined in terms to the property within jurisdiction and omits from consideration, deliberately or otherwise, property situated outside the jurisdiction, there is any lack of jurisdiction to make such a grant or the petition which does not mention such property, even though required by Section 276, becomes incompetent. While the jurisdiction of the District Judge to make the grant in respect of property within his jurisdiction is undoubted, omission to mention in the petition property situated outside jurisdiction is a mere defect or irregularity which would not make the petition incompetent particularly where the property on the appellants' own showing is of the value of more than Rs. 10,000/. The only possible effect of the omission of such a property is a possible non-compliance of the provisions of Section
274. Section 274 provides that where the grant is made by a High Court it shall be circulated to other High Courts while where it is made by District Judge to all the High Courts and where the portion of the assets have been stated in the petition to be situated within jurisdiction of the District Judge in another State to such District Judge as well. The intention of Section 274 appears to be to keep the other Courts informed of the grant both because in certain cases it has effect outside jurisdiction as also to avoid a possible anomaly by conflicting decisions in similar proceedings. I am, however, unable to see how any non-compliance with the requirement to mention an estate outside the jurisdiction would make the petition incompetent. It is not irrelevant to mention in this connection that no objection was raised either to the jurisdiction of the District Judge or to the maintainability of the petition until the appeal was first heard in this Court. I am also not unaware of the fact that the "omission in the present case was merely technical because of the value of the property outside jurisdiction being more than Rs. 10.000/- on the showing of the appellants themselves and the Act being inapplicable to Goa, the non-compliance had no repercussions."
(36) Apart from the principles referred to above the decided cases do not appear to support the extreme proposition propounded on behalf of the appellants. In the case of Gurbachan Kaur v. Satwant Kaur and others, Air 1925 Lahore 493(11), a Single Judge of that Court held that the application for the grant of letters of administration, with the will annexed, relating to one item need not contain an inventory of the entire property even if the entire property was situated within jurisdiction. This proposition was no doubt rather widely worded and so, therefore, rightly, with respect, dissented in the case of Sardar Singh and another v. Teja Singh and others, Air 1946 Lahore 277(8) where it was held that except in case covered by Section 232(c), an application must cover the entire estate of the deceased. In this case, however, the entire estate was situated within the jurisdiction of the District Judge and the observation must, therefore, be seen in that context. No party of the property was situated outside the jurisdiction. In the case of Lal Singh v. Mt. Kishen Devi and others, Air 1929 Lahore 72(7), it was, however, held that it was not open to the court to refuse to grant probate merely on the ground that a part of the estate of the deceased is situated outside its jurisdiction or outside the province if some part of the estate is situated or the deceased resided at the time of his death within its jurisdiction. It was further held that Section 273 applied only to property situated in another province which is not in India and not to a property which is situated in native States. In the case of Smt. Ashtbhuja Ratan Kuer v. Thakur Debi Baksh Singh and another , it was held that where the whole of the testator's property was situated within the United Provinces of Agra and Oudh, yet by far the larger and more valuable part of it was in Oudh and only a portion in Agra, the District Judge in Agra Province had jurisdiction to grant letters of administration, with the will annexed. It was further held that the grant would not be bad merely because it was not limited to the property within jurisdiction clearly implying thereby that a grant limited to the property within jurisdiction was competent. In the case of Sumitrabai N. Nadkarni v. Vishweshwar, Air 1946 Bombay 109(9), it was held that it was not open to a party to apply for probate of a will, limited to the collection of debts. It was also a case in which rest of the property, which was omitted, was situated within the jurisdiction of the Court. In the case of T. J. George s/o Thaettil Joseph v. Mrs- Lucy Kochuvareed, , a Division Bench of Kerala High Court held that the District Judge did not lose its jurisdiction to grant a probate merely because properties worth more than Rs. 10,000 belonging to the estate of the deceased were situated outside the State in which it exercises its jurisdiction and in such cases the District Judge had jurisdiction to grant a probate effective only with respect to the properties inside the State. In H. C. Ramaswamy Iyengar and others v. H. C. Lakhminarasimhan and others, Air 1965 Mysore 87(10), however, it was held that the Statute contemplates grants of probate or letters of administration in respect of the entire estate as a general rule and limited grants were exceptions to it, to be made in circumstances indicated by the Statute. In this case the property which was excluded from the grant was situated within the jurisdiction of the Court.
(37) In the result the objections to the jurisdiction of the District Judge and to the maintainability of the petition are overruled. The finding of the learned District Judge on Issue No. 1 is confirmed while the conclusion on the other question is reversed. The objections to the report of the District Judge succeed in part and C.M. 644/73 is disposed of accordingly.
(38) That brings me to the merits of the grant.
(39) The due execution, attestation and the genuineness of the Will, Ex. P 1 was sought to be proved on behalf of the respondents at the trial by the evidence of Public Witness 1, Shri Chet Ram Mittal, Advocate, Pw 2, J. D. Cruz; Public Witness 3, the propounder and Public Witness 4, the handwriting expert. Public Witness 1 and Public Witness 2 the attesting witnesses to the document categorically stated that they had known the testator for many years, Public Witness 1 being a prominent advocate of the locality and a near neighbour of the testator for many years and Public Witness 2 being a life long friend of the testator. Public Witness 1 further stated that the testator came with the Will to his office and signed the document in his presence which the witness attested in the presence of his testator. Public Witness 1 was also categorical in his statement that the testator had read the document. admitted it to be his Will and to have understood it and appeared to the witness to be in a sound disposing mind and signed knowing fully well what he was doing. Public Witness 2 similarly stated that the testator admitted Ex. Pi to be his Will, had understood it and had signed it and had obtained the attestation from Public Witness 1 when the testator brought the Will to the witness and after the testator told the witness that he had signed the Will, the witness attested it. He further attested to the fact that the testator was in a sound disposing mind. That both the attesting witnesses were men of integrity and status, had known the testator for many years and would belong to the class of people to whom the testator would ordinarily go for the execution and attestation of a document like a Will was no dispute either at the trial or in the arguments before me. It is useful in this context to mention that there was practically no cross-examination of these witnesses and whatever questions were put to them were directed to bring out that when the testator went to the witnesses, he was either accompanied by or taken there by the wife of the propounder, that is. the daughter-in-law of the testator whose son was the principal beneficiary. That the evidence of these witnesses was not only truthful but natural is further established by the fact that both the witnesses frankly conceded that when they attested the document, the other attesting witness was not present and Public Witness 2 further frankly conceded that when the testator came to him for his attestation, both the testator and Public Witness I had already signed the document and took pain to state this even though the document Ex. PJ. bears an endorsement, following the usual pattern, that the testator signed in the presence of both the attesting witnesses each of whom signed in the presence of the testator and of each other. The witnesses, however, and of each other. The witnesses, however, and it must be said to their credit, made no attempt to conform to that endorsement which obviously must have been put in an attempt to follow the model endorsement in such cases apparently because the testator had not visualised that it may not be possible for him: to have both the witnesses, one of whom was a busy legal practitioner, present at the time of execution. I am, not, therefore, surprised that the learned District Judge has been highly impressed by the testimony of these two witnesses and learned counsel for the appellants did not make a serious attempt either at the trial or before me to assail the testimony of these witnesses.
(40) It has throughout been the common case of the parties, both at the trial and in this Court, that the testator died at the ripe age of 83 of an heart attack, had been afflicted for quite sometime before that by a heart ailment and also had an accident which considerably affected his mobility although he continued to take some interest in the conduct of his affairs. It was, however, not seriously disputed and can even otherwise be imagined, that a person in that situation would not be absolutely active, mentally or physically, and completely alert. At the trial the main thrust of the evidence produced on behalf of the appellants was to this aspect of the mental and physical condition of the testator and it is on that basis apart from certain circumstances to which I will presently refer, that a finding was sought that the testator could not have a sound disposing mind or to have been physically capable of executing a document muchless understanding the implication of the bequests that he purported to make. The learned District Judge, however, came to the conclusion, and rightly in my view, that even though in a very advanced age and suffering as above, the testator retained a sound disposing mind and was active-to the extent that he was even looking after his affairs. The conclusion was based on the admitted fact that a large number of documents relating to the business of drycleaning such as vouchers. Ex. P4 to Ex. Ps and pay bill Ex P9 relating to the period during which the will was alleged to have been executed bore the signatures of the testator indicating that inspite of his disability of testator was not only sufficiently conscious but was fairly active within obvious limitations inherent in his situation. Apart from this the learned District Judge must have also been impressed by the fact that there was practically no cross-examination of the two main witnesses with regard to the execution and attestation of the will and of its genuineness or of the mental and bodily condition of the testator at the time of the execution and attestation of it. In this context the approach of the learned District Judge in ignoring the evidence of the two experts and in attaching comparatively little importance to the other evidence of the parties was quite understandable. The other evidence produced on behalf of the appellants, consisting of some of the employees of the dry cleaning business and another vaguely suggesting that, having regard to the condition of the body and mind of testator, he could not have made will Ex. Pi, was much too vague and negative to be entitled to any weight by itself.
(41) Shri Malik, learned counsel for the appellants, appeared to be fully conscious of an uphill task in assailing the testimony of the aforesaid two witnesses and was, therefore, understandably luke- warm in challenging their testimony or making any dent in the con- clusion arrived at by the learned District Judge on the basis of that evidence. The main thrust of the arguments of the learned counsel was, however, directed to the approach of the learned District Judge to the question as to the genuineness of the will and the proof of its execution and attestation. In determining if the will was a genuine document and had been executed and attested as alleged, proceeded the argument, it was not open to the Court to consider the oral evi- dence in isolation divorced from the various circumstances attended on the preparation, execution, attestation, custody and production of a will as well as the improbabilities, inconsistencies and other elements in the various provisions in the will which may cast suspicion on its genuineness placing a heavy burden on the propounder, particularly if he had taken a leading part in the execution of it and was in some way the main beneficiary under it. It was, therefore, urged that the learned District Judge had failed to consider these circumstances and that if the oral evidence with regard to the execution of the will' was to be considered in the context of those circumstances, an obvious inference would be that such a will was not and could not have been executed by the testator and, if in fact executed, could not have been the result of an application of a sound disposing mind by him to its provisions or an understanding of their implications.
(42) Before I deal with the various circumstances which were alleged to have cast suspicion on the execution of the document and which may militate against its genuineness, it may be useful to examine the legal principles to be applied in determining the genuineness of a will and its due execution and attestation.
(43) In the case of (Srimati) Sarat Kumari Bibi v. Rai Sakhi Chand Bahadur and other, Air 1929 Privy Council 45, (15), it was pointed Jul by U.c Judicial Committee, on the basis of its us earlier decisions , that where the writer of a will had taken a very active part In the preparation of the will under which he got a substantial advantage the perpounders of the will must prove that the testator was aware of the contents of the will. it was further pointed pointed out that it was not correct to say that the benefit must be a pecuniary benefit, a legacy for instance more or less of a substantial nature. The Judicial Committce approved the rule laid down by Lindley and Davey L. JJ. in Tyrrell v. Painton thus :
"THErule in Barry v. Batlin, Fulton v. Andrew and Brown v. Fisher is not, in my opinion, confined to the single case in which a will is prepared by or on the instructions of the person taking large benefits under it, but extends to all cases in which circumstances exist which excite the suspicion of the Court, and wherever such circumstances exist, and whatever their nature may be, it is for those who propound the will to remove such suspicion and to prove affirmatively that the testator knew and approved of the contents of the document, and it is only where this is done that the onus is thrown on those who oppose the will to prove fraud or undue influence, or whatever else they rely on to displace the case made for proving the will.........( Lindley, L.J.) It must not be supposed that the principle in Barry v. Butlin is confined to cases where the person who prepares the will is the person who takes the benefit under it that is one state of things which raises a suspicion: but the principle is that, wherever a will is prepared under circumstances which raise a well-grounded suspicion that it docs not express the mind of the testator, the Court ought not to pronounce in favor of it unless that suspicion is removed......... (Davey, L.J.)".
(44) In the case of H. Venkatachala lyengar v. B. N. Thimmajamma, , Gajendragadkar, J. as he then was, had occasion to consider the law relating to the true legal position in the matter of proof of wills and pointed out that although a will has to be proved like any other document apart from the requirement of Sections 59 and 63 of the Indian Succession Act which lay down the manner of execution and attestation of a will, and the test to be applied would be usual test of the satisfaction of the prudent mind as to whether the testator had signed the document, was in a sound disposing mind at that time and understood the nature and effect of the disposition and it was attested as required by law yet there was an important feature which distinguishes a will from other documents in that unlike other documents, the will spoke from the death of the testator which introduces an element of solemnity in the decision of the question if the document was the testament of the testator who was no more. Nevertheless in dealing with the proof of a Will the Court will start on the same enquiry as in the case of proof of other documents and the propounder wiU be called upon to show by satisfactory evidence that the Will was Signed by the testator, that the testator at he relevant time was in a sound disposing state of mind, that he understood the nature and implication of the dispositions and put his signatures of his own free will. It was further pointed out that "ordinarily when the evidence adduced in support of the will is dis- interested, satisfactory and sufficient to prove the sound and disposing state of testator's mind and his signature as required by law, Courts would be justified in making a finding in favor of the propounder. In other words, the onus on the propounder can be taken to be dis- charged on proof of the essential facts just indicated". The distingui- shed Judge then referred to the extraordinary case in which the ex- ecution of a will may be surrounded by "suspicious circumstances". For example, the alleged signature by the testator may be very shaky, doubtful and the doubt may not have been removed by the evidence in support of the propounder's case. The condition of the testator's mind may appear to be very feeble and debilitated and the evidence may not succeed in removing the doubt as to the mental capacity of the testator. The dispositions made in the will may appear to be "unnatural improbable or unfair in the light of the relevant circum- stances, or, the will may otherwise indicate that the said depositions may not be the result of the testator's free will and mind." It was then pointed out that the presence of such circumstances would tend to make the initial onus very heavy; and unless it is satisfactorily dis- charged, and courts would be reluctant to treat the document as the last will of the testator. The learned Judge then added a caution that 'in case allegations of undue influence, fraud or coercion in respect of the execution of the will was made "such pleas may have to be proved by the caveators; but, even without such pleas circumstances may raise a doubt as to whether the testator was acting of his own free will in executing the will, and in such circumstances, it would be a part of the initial onus to remove any such legitimate doubts in the matter" The learned Judge then directed attendon to cases in which apart from the aforesaid circumstances there may be another infirmity in that the propounder himself may have taken the prominent part in the execu- tion of a will which confers a substantial benefit on him and held that this element itself is generally treated as a suspicious circumstance attending the execution of the will and the propounder was required to remove the suspicion by "clear and satisfactory evidence". The learned Judge then concluded by an observation that the application of the broad principles referred to above "would always depend upon the facts and circumstances of each case and on the nature and quality of the evidence adduced by the parties." The learned Judge then quoted with approval the following observations of Lord Du Parcq in Harmes v. Hinkson, Air 1946 Privy Council 156(17) :
"WHEREa will is charged with suspicion, the rules enjoin a reasonable scepticism, not an obdurat persistence in disbelief. They do not demand from the Judge, even in circumstances of grave suspicion a resolute and impenetrable incredulity. He is never required to close his mind to the truth."
The learned Judge suffixed these observations with an equally appropriate observation that:
"IT would sound platitudinous to say so, but it is nevertheless true that in discovering truth even in such cases the Judicial mind must always be open though vigilent, cautious and circumspect."
(45) In Rani Purnima Debi and another v. Kumar Khagendra Narayan Deb and another, .(18) Wanchoo J. who spoke for the Court, reiterated the principles laid down by that Court earlier in H. Venkatachala lyengar v. B. N. Thimmajamma, , and added a note of caution thus :
"BUTeven where there were suspicious circumstances and the proponder succeeded In removing them, the Court would grant probate, though the Will might be unnatural and might cut off wholly or in part near relations,"
(46) In Shashi Kumar Banerjee , others v. Subodh Kumar Banerjee, the Supreme Court had another occasion to consider
the question as to the mode of proof of a Will and reiterated the principles laid down in the earlier two cases.
Mudholkar J. who spoke for the Court, while reiterating the aforesaid principles laid down that "in order to judge the credibility of the witnesses, the Court is not confined only to the way in which the witnesses have deposed or to the demenour of witnesses, but it is open to it to look into the surrounding circumstances as well as the probablities, so that it may be able to form a correct idea of the trustworthiness of the witness". The learned Judge then referred to the following observations of Lord Watson in Chotey Narain Singh v. Mst. Rattan Koer, 22 Ind. App 12,(21).
"THEtheory of improbability remains to be considered: and the first observation which their Lordships have to make is that, in order to prevail against such evidence as has been adduced by the respondent in this case, an improbability must be clear and cogent. It must approach very nearly to, if it does not altogether constitute, an impossibility." X X X X X In a case where........ attesting witnesses are produced and they give clear and cogent testimony regarding execution, one should require very strong circumstances to repel the effect of such testimony. It will not do to talk airily about circumstances of suspicion. It is no doubt true that a person who takes it upon himself to dispute the genuineness of a Will cannot be expected to prove a negative in many cases. At the same time, the difficulty in which, on his own seeking, he places himself, will not relieve him of the burden-it may be a heavy burden-of displacing the positive testimony on the other side. If he rests his case on suspicion, the suspicion must be asuspicion inherent in the transaction itself which, is challenged and cannot be a suspicion arising out of a mere conflict of testimony."
The learned Judge made a further reference to the observation of Lord Watson in that case to the effect that where there was evidence to show that the will was actually made, it would net be relevant to enquire whether there was any occasion or motive for the execution of the will, and that if such a test were to be applied in every case, no will could probably be proved at all. The learned Judge interpretted the aforesaid observations thus :
"THISissue cannot be determined by considering the evidence adduced in the Court separately from the surrounding 128 circumstance which have also been brought out in the evidence or which appear from the nature and contents of the document itself. We do not understand the observations of Lord Watson to mean that the testimony as to the execution of the document has to be considered independently of the attendant circumstances. All that he says is that where there is a large and consistent body of testimony tending to show the execution of a will by the testator, that evidence should not be lightly set aside on the theory of improbability."
(48) In the case of Pushpavati and others v. Chandraja Kadamba and others, , Palekar J., who spoke for the Court, while reiterating the principles laid down by that Court in observed that where the signature of the testator was challenged as a forged signature and the Will did not come from the custody of a public authority or a family solicitor the fact that the disposition made in the Will was unnatural, improbable or unfair, would undoubtedly create some doubt about the Will, especially, when the document is unregistered and comes from the custody of a, person who is the major beneficiary under the Will.
(49) In a recent judgment of the Supreme Court in Civil Appeal No. 1153 of 1971, Surendra Pal and others v. Dr. (Mrs) Saraswati Arora and another, decided on August 9, 1974, (23) Jaganmohan Reddy J., as he then was and who spoke for the Court, reiterated the principles laid down earlier by that Court thus:
"If the caveator does not discharge the burden which rests upon him in establishing the circumstances which show that the will had been obtained by fraud or undue influence, a probate of the will must necessarily be granted if it is established that the testator had full testamentary capacity and had in fact executed it validly with a free will and mind."
The learned Judge quoted with approval the following observations of Ammer Ali J. in Motibai Hormusjee Kanga v. Jamsetjee Hormusjee Kanga, Air 1924 Privy Council 28; (24).
"IT is quite clear that the onus of establishing capacity lay on the petitioner. It is also clear that if the caveator impugned the will on the ground that it was obtained by the exercise of undue influence, excessive persuasion or moral coercion, it lay upon him to establish that case. * * * * * A man may act foolishly and even heartlessly : if he acts with full comprehension of what he is doing the Court will not interfere with the exercise of his volition."
(50) The various contentions of learned counsel for the appellants asto the suspicious circumstances which allegedly cast a doubt on the genuineness of the will so as to impel rejection of the clear and cogent testimony of the attesting witnesses as to the execution of the will by the testator, his sound disposing mind and as to the genuineness of the will may now be considered in the light of the aforesaid principles.
(51) Learned counsel for the appellants listed the following facts and circumstances as casting a doubt on the genuineness of the will:
(A)Inconsistency between the recital in the will on the one hand and the evidence of the attesting witnesses, regarding the manner and timing of attestation, on the other;
(B)total deprivation of the elder son from inheritance without any explanation to justify it;
(C)deprivation of an aged widow of inheritance, except maintenance, without any explanation to justify the former;
(D)inconsistency between the recital in the will regarding partnership on the one hand and the provisions of the partnership deed on the other;
(E)absence of any reference to the Goa property in the will even though it was found by the District Judge to exist and be of considerable value;
(F)the unusual nature of the provision in the will giving a virtual power of veto to the wife of the younger son whose son was a principal beneficiary indicating the hidden hand of the lady behind the document;
(G)absence of any mention in the will of the heart ailment of the testator:
(H)the signature of the testator at the ripe age of 82/83 could not be as firm as would ex-facie appear on the will, and
(I)total absence of any mention by the testator, during his life time, either of his intention to make the will or of the factum that he had made one.
(52) Before considering the rival contentions with regard to the aforesaid facts and circumstances, it may be appropriate to mention a rather unusual feature of this case. As has been pointed out above, the trial of the petition was more or less a tame affair. No serious challenge was thrown to the veracity of the evidence of the attesting witnesses or to their credibility besides a vague suggetion that the wife of the younger son of the testator and the mother of his grand child who is the principal beneficiary had been playing a role in the process of execution of the will. None of the other facts and circumstances alleged to be of a suspicious character and casting a doubt on the genuineness of the document and its execution or of the state of mind of the testator were either mentioned by the appellant in their written statement or put to the respondents or their witnesses in cross-examination or referred by them in their own evidence with the result that the respondents had no occasion or opportunity to explain these facts and circumstances either in their pleadings or in their evi- dence. Interestingly enough, one of the important fact which was made a basis to cast doubt on the genuineness of the will as indeed to challenge the jurisdiction of the learned District Judge, that is, existence of some immovable property in Goa belonging to the testator was for the first time brought out during the hearing of the appeal in this Court. The other facts and circumstances referred to above were, however, brought out only in the course of arguments in this Court. Although the learned counsel for the respondents did protest that the appellants had failed to allege any of these circumstances at the trial and it would, therefore, be unfair to expect the respondents to have explain- ed away all or some of these, the learned counsel dealt with each of these facts and circumstances on instructions from his clients. In view of this feature I was at one stage inclined to remand the matter for fresh trial if all or some of these circumstances appeared to me to be sufficient to cast a serious doubt on the genuineness of the docu- ment or of the state of the mind of the testator or otherwise having regard to the various surrounding circumstances. But learned coun- sel for the parties were more or less agreed that since they had argued the matter at considerable length, reinforcing their contentions with regard to these facts and circumstances, they felt that little further light could be thrown by the parties and that they would have, therefore, no objection if I decided the matter on the basis of the contentions urged at the hearing of the appeal and took notice of the explanations offered on behalf of the respondents to what were considered by the appellants to be the suspicious circumstances.
(53) The first circumstance said to cast a doubt on the genuineness of the will is the admitted inconsistency between the recital in the will on the one hand and the evidence of the attesting witnesses regarding the manner and timing of attestation of it, on the other. The will purports to have been executed by the testator in the presence of Shri Chet Ram Mittal, advocate, Public Witness 1 and Mr. J. D. Cruz, of the Municipal Corporation of Delhi, Public Witness 2, and according to the recital in the document, both the aforesaid attesting witnesses signed it "at the same time" and "in presence of each other". According to Public Witness I, the testator executed the will in his presence and the witness attested it in the presence of the testator. Mr. J. D. Cruz, Public Witness 2 supports this when he states that the testator brought the will to him duly executed by him and bearing the attestation of Public Witness I and that Public Witness 2 attested it on the testator admitting his signature on the will. I am, however, unable to see how this inconsistency is capable of casting any suspicion on the genuineness of the document. The recital in the will is the usual recital in wills drawn according to known precedents and since the will is always drawn and prepared ahead of the actual execution, the mere recital in the will that both the attesting witnesses signed "at the same time" and "in the presence of each other" would not derogate from the validity of the execution, attestation or the genuineness of the document if in fact it so happened that at the time of the execution, one of the two attesting witnesses was present while the other attested in on the basis of the admission bytestator as to the execution of the document. This is the only circumstance which was urged before the learned District Judge and he was, with respect, right in his conclusion that when the draft was prepared, the testator may have hoped that both the witnesses would be present "at the same time". It was not disputed before me that if a will was executed in the presence of one attesting witness while the other subsequently attested it on the basis of the admission by the testator of execution, it would not in law affect the validiy of the document. It is significant in this connection that no attempt was made either by the propounder or by the attesting witnesses to co-ordinate their evidence with that of the recital in the will which, if they were so minded, was not difficult of execution. On the other hand, both of them have been forthright in their statements as to the timing of the execution and their attestation. This inconsistency, therefore is not only in capable of casting any doubt on the execution of the document and as to its genuineness but on the other hand, provides a reinforcement to the credibility of the witnesses and a standing proof of the fact that the will was executed and attested in a normal and natural manner and even where an apparent inconsistency was left in the circumstances in which it was done, the matter was left at that and no attempt was made on a subsequent improvement. Nothing would, therefore, turn on this circumstance.
(54) The next circumstance is based on the total deprivation of the elder son from inheritance without any explanation to justify it. It was not disputed that in terms of the deed of partnership, Ex. R 1, both sons since before the death of the testator have been partners with the testator in the dry cleaning business and had been working in the said business and were, therefore, able to look after themselves. It is also a common case of the parties that the younger son, the propounder and the father of the principal beneficiary under the Will has been living for a long time before the death of the testator with the testator while the elder son had for many years been living separately. This would obviously indicate that to an extent the testator was comparatively more inclined towards his younger son. It is significant that nevertheless no additional benefit has been given to the younger son as such because the principal beneficiary is the grandson, though the son of the younger son. It is not difficult to explain this circumstance because it was not disputed that the elder son has no issue and there is no scope for any. It is this grandson alone who would, therefore, be capable of continuing the family life after the two brothers. If a part of the property were bequeathed to either of the two sons or to the widow of the testator, it may perhaps have eventually gone to the grandson but would have involved the estate in unnecessary estate duty. So far as the bequest in favor of the elder son is concerned, it may perhaps have gone outside the family because the son is issueless. A bpquest, therefore, of the entire immovable property to the grandson and the consequent deprivation of the elder son from inheritance with regard to immovable property is quite understandable and would appear to me to be consistent with the circumstances of the family and in any event, could not be treated as being unnatural or unreasonable or to constitute a suspicious circumstance. This circumstance, therefore, is of no consequence.
(55) The next circumstance is based on the deprivation of the widow of inheritance other than maintenance. This circumstance, to my mind, is wholly innocuous. The widow is a little younger in age than the testator who died at the ripe age of 83 years. She has the right of residence in the property as also a regular maintenance in terms of the Will. She has also been given the right to realise and recover rent from the tenants including the D. F. Kay Dry Cleaners and Dyers, to re-let any portion that may fall vacant and to utilise the rent for her maintenance and upkeep during her life time. The Will further enjoins the grandson, the principal beneficiary under the Will to give to the widow Rs. 300 p.m. and provides that if the amount is not paid, it would constitute a first charge on the building, it also gives her the right to reside in the building during her life time. Any bequest in favor of the widow of any substantial immovable property would obviously have been open to two possible difficulties referred to above. In the first place any such bequest in favor of a person in such an advanced age as the widow would not have been proper because it would have involved payment of estate duty twice over which could be avoided by a bequest in favor of the grandson. In the second instance, a bequest in favor of the widow would not have excluded the possibility of the property going outside the family, which any person in the position of the testator would have been keen to avoid. The anxiety of the testator, as indeed of any testator in the circumstances, would have been to make adequate arrangement for the widow for whatever few years she had still to live. It was not disputed that the provision in the Will was adequate for her requirements. This circumstance would, therefore, appear to me to be consistent with the circumstances of the family and could not be said to be either unnatural or incapable of a rational explanation so as to cast any doubt on the genuineness of the Will. This circumstance must, therefore, be ignored.
(56) The next circumstance is composed of the inconsistency between the recital in the Will with regard to the partnership business on the one hand and the provisions of the partnership deed on the other. As has been pointed out above. Ex. R 1, the deed of partnership entered into between the testator and his two sons on August I, 1960, admits the two sons to the benefit of partnership to the extent of a share equivalent to 5 annas in the rupee each. The testator retained 6 annas in the rupee for himself. The deed further provides that the two sons would be entitled to draw up to Rs. 300 p.m. each which would be debited to their personal accounts and adjusted against their share of profit. It recites that the sons had been working with the father in the business as employees but 'on account of advanced age and constant heart trouble, the testator had been finding it difficult to look after the business all alone and had, therefore, invited the sons to join him as partners. It also provides that in the event of the death of the testator, "his wife shall succeed to his interest and rights in this partnership as a full-fledged partner". However, the Will, Ex. P 1, is absolutely silent with regard to the partnership and contains references to the dry cleaning business which appear to indicate as if this was the sole proprietory business of the testator, for example, in para 2 of the Will, the testator says that "I am running Dry Cleaning business". In para 5, he bequeaths to his grandson all his property "moveable and immoveable... ...together with Dry Cleaning business". In para 6, there is a further provision for the "management of the business" in view of the fact that the grandson then was a minor and it is provided that the management of the business and other affairs will be handled by the minor's father subject to certain safeguards provided in the document. The Will contains no provision with regard to the succession of the share of the testator in the partnership by the widow. There is, therefore, no doubt that there is a clear inconsistency between the two documents in relation to the rights of the two sons in relation to the business and the right of the widow to succeed to the testator's share.
(57) The provision in the deed of partnership regarding succession by the widow to the testator's share in the business on his death and the absence of a corresponding provision in the Will in that behalf, however, does not appear to me to present any difficulty. The deed represents the thinking of the testator, at the time it was drawn, of the manner in which the testator would like his interest to be disposed of and the consequent mode of assuring maintenance for the widow in the event of his death. The Will, being a document subsequent in point of time would represent a rethinking on the question and the testator having, therefore, made a more- effective provision in the Will for the maintenance of the widow, and for the reason explained above, having made the business as a part of the bequest for the grandson, any provision in it regarding succession by the widow to the business was neither necessary nor possible. It was perhaps realised, and it would stand to reason, that the involvement of the aged lady in the affairs of the business may create unnecessary difficulties. This inconsistency is, therefore, understandable and would not, in my view, in any manner affect the validity of the Will.
(58) The inconsistency with regard to the rights of the sons in the partnership business, however, appears to be more serious. The Icarned District Judge; however, pointed out in his judgment that the interest of the sons in the partnership business in terms of deed of partnership "would naturally remain uneffected by any disposition made by the deceased" apparently implying that even if the Will purported to bequeath the entire business to the grandson, so far as the business is concerned, it would naturally be valid only to the extent of the testator's interest in it and that could not be extended to the entire business. The contention that is, however, urged on behalf of the appellants is not as to the legal effect of the disposition on the interest of the sons in the partnership but as to the inconsistency between the two documents and its effect on the genuineness of the Will, According to Ex. R 1, the two sons of the testator had been working with him in his business as employees and since effect admittedly was given to the deed of partnership sons were working with the father as full-fledged partners to the extent of 5 annas in a rupee each since right from the year 1960 and were working as such when the Will was executed in the year 1966. The testator, therefore, if he knew what he was doing, runs the argument, could not possibly have ignored that lie had only interest in the business to the extent of 6 annas in a rupee and that the business was not his sole proprietory business as is apparently indicated by the r..referenccs in the Will referred to above. In fact in para 2 of the Will, the fcs:ator makes out that "I have unrestricted powers of' disposal of immoveable and moveable property mentioned herein" obviously referring to the dry cleaning business as well. Such a provision in the Will by a person who had himself admitted his sons to the benefit of partnership and had been working as such for about six years obviously puts a Court to an enquiry as to the possible reasons for such an inconsistency end as to an explanation for it. The question that, therefore, requires consideration is if this inconsistency does or does not introduce an infirmity in the Will so as to constitute either as unnatural element or to otherwise cast a suspicion on its genuineness. The conclusion arrived at by the learned District Judge that the Will would not affect the interest of the sons in the partnership is, to my mind, besides the point. That raises a question of law as to the validity of the bequest with which this Court is not concerned in the present proceedings because it is well-settled that the probate Court is not concerned with the testator's title to the property forming subject matter of the bequest. It is, however, not possible to accept the contention that the said Will could not have been executed by the testator because the evidence of the attesting witnesses is absolutely unimpeachable. It is, however, pertinent to enquire if, even while executing the document and admitting its execution, the testator could be said to have been conscious of what he was doing. The evidence of the attesting witnesses is categorical that the document was read over by the testator, he admitted it to be his Will, he was in a fit state of mind and knew what he was doing. Is it possible to accept the hypothesis that the signatory to Ex. R 1 could have signed the Will Ex. Pi fully aware of the implications of what he was doing ? This question must, however, be answered in the context of the ripe age at which the testator is said to have executed the Will and the state of his mental and physical health at that time. He had admittedly suffered an heart attack and had been involved in a serious accident which obviously must have affected his mental faculties to a very large extent. It may be, therefore, that even while broadly understanding the implications of what he was doing and possessed of sound disposing mind, it escaped his notice that the Will as drawn may imply as if he was bequeathing the entire dry cleaning business to the grandson to the exclusion of the two sons. If either his mental faculties had been affected to such an extent or his free agency was impaired because of some events so that he could not co-relate the Will to Ex. R 1, could it be said that the testator was possessed of a sound disposing mind when he executed the Will or was in possession of all his faculties and was not under anybody's undue influence.
(59) Having regard to all the circumstances, it appears to me that this inconsistency, though quite serious, could not be said to be fatal to the will either because it casts an indelible doubt on its genuineness or because it militates against the sound disposing mental condition of the testator. There is unimpeachable evidence that the testator executed the document and he appeared to be of sound disposing mind, had read the contents of the will and appeared to have signed knowing fully well the implication of what he was doing indicating thereby that he was not only possessed of his faculties but was also not under the undue influence of any one else. While considering if the testator had full control on his senses and was, therefore, possessed of a sound disposing mind, it is not possible to ignore the rather ripe age at which he was making the will. If in preparing a will at that ripe age, there is a circumstance which may indicate that an aspect of his life and situation had not been fully reflected in the document it has to be considered in the context of his age and the consequent mental and physical infirmity, That the inconsistency may be on account of over sight or partial loss of memory or some possible confusion in his mind could not in such cases be altogether eliminated. When the law requires that the testator must have sound disposing mind and possessed of all his faculties and be aware of what he was doing it is not intended to be such a strict or mandatory requirement 'that even if in drawing the document he ignored certain important aspects either because of in- advertence or loss of memory the will should be struck down even though the document, by and large, appears to the Court to be not only a natural document but to be the product of free expression of his will by a man who was generally of sound disposing mind. Even the inconsistency referred to above is to an extent explained when one re- fers to the recital in the will that the two sons were "looking after their own affairs" apparently implying thereby that their material needs were being met on account of their interest in the partnership in terms of the partnership deed. This is so because it was not disputed that both the sons have been working with the father in the partnership business and are not engaged in any other business, trade or service. If the document is read as a whole, which is the accepted mode of interpreting a document, the inconsistency is fairly diluted. Possibly while referring to the dry cleaning business, the testator was all the time thinking of disposing of all his own interest in the business. I am, therefore, of the view that this circumstance, though material, would not be sufficient to cast any suspicion on the genuineness of the document or on the mental capacity of the testator which could not be reasonably explained by the surrounding circumstances.
(60) The next circumstance turns on the absence of any specific reference to the Goa property in the Will even though on remand, the District Judge has found that the testator owned immoveable property of the value of more than Rs. 10,000 at the time of his death. This circumstance is quite innocuous because although there is no specific reference to the property, the other immoveable properties are gener- ally referred to in the will when the will recounts that the testator has "bank accounts and other moveable and immoveable property". Such a reference immediately after mentioning the Darya Ganj property would appear to indicate that some other immoveable property was in the contemplation of the testator. In any event, the Goa property was admittedly a minor property as compared to the value of the Delhi property and was owned by the testator, according to the report of the District Judge, jointly with his other relations and the total value of the share of the testator, though exceeding the requisite limit of Rs. 10,000, could not be said to be very substantial so as to necessarily justify a specific mention. It is also not possible to ignore that the testator had virtually spent his entire life in Delhi or in this part of the country and may not have, therefore, attached any special signi- ficance to a minor property situated in Goa. I am, however, unable to agree that the absence of any specific reference to that property in the will would constitute any circumstance which may cast any suspicion on the genuineness of the will or otherwise impinge on its validity. This circumstance must, therefore, be ignored.
(61) The next circumstance on which considerable reliance was placed on behalf of the appellants is the hidden hand of the wife of the younger son of the testator, whose minor son was the principal beneficiary, behind the Will. A contention was raised that it was this lady who, being a working woman said to be wordly wise and clever, must have been behind the will and had probably exercised more than the usual influence on the testator in making the dispositions in the manner they were done, so as to favor her son to the total deprivation of the elder son of the testator and a partial deprivation of the widow. Support was sought for this contention, in the first instance, from the fact that the will, while bequeathing the property in favor of the grandson and making a provision in para 6 for the management of the business and other affairs by the father of the minor, contained an interesting rider that "under no circumstances during the tenure of the supervision of the affairs and property will he misappropriate the property or money". The reference obviously is to the younger son who was entrusted with the management of the affairs on behalf of the grandson. Relience is placed on the further provision that "in the case of withdrawal of money for any special reason, this can be done only after obtaining counter signature of Mrs. Victoria Trinidad" i.e. the wife of the younger son. Secondly, it was contended though very hesitatingly and in rather vague language, that there was something unusual in the relationship between the testator and this lady which made it possible turn her to exercise considerable influence on the testator, and it was contended that the aforesaid provisions in the will was a clear indication that the lady was not satisfied with a mere bequest in favor of her son but also wanted an upper hand over her husband in the management of the business and the other estate forming subject matter of the bequest. On behalf of the respondents, the allegation of any unusual relationship was denied and it was pointed out that the testator, by and large, was more attached to his younger son and the grandson, who were also living with him and therefore, to some extent naturally exercised influence over the way he conducted his affairs. It was further pointed out that apparently the testator did not have much faith in the younger son and had, therefore, given a virtual power of veto to his wife who was considered a clever and prudent woman to exercise the necessary restraint on him so as to prevent an avoidable diversion of the funds. While the aforesaid provision does indicate that the wife of the younger son exercised considerable influence on the testator and had won over, for reasons which are not necessary to discuss, the old man's confidence so as to pursuade him to incorporate such a provision in the will, it is not such an unusual provision which may cast suspicion on the genuineness of the document or of the mental state of the testator when it was executed. The includence which may vitiate a bequest it only such influence by which free agency of the testator is completely impaired either on account of psychological or physical reasons so that it could not be said that he had a sound and independent disposing mind. It must, therefore, be undue or unlawful influence. Every person is subject to various influences, both human and planetary. Such influences would not by themselves vitiate the disposition. In making the will or in the manner the testator dealt with certain matters in the will perhaps may have been influenced by various circumstances and even his younger son or his wife but it is not possible for that reason alone to reject the will. There is absolutely no doubt in my mind that the aforesaid provision is the result cither of the testator's anxiety not to give unrestricted power to his son in the management of the business or affairs or of the anxiety of the wife of the son to have a virtual control over the management of the business and the affairs by her husband. In either case, such an anxiety would be consistent with the normal course of events and would appear to me to be fully justified in the circumstances of the case. It is not possible to rely upon any relationship of an unusual nature between the old man and his daughter-in-law about which learned counsel for the appellants was also understandably lukewarm obviously because to carry the matter any further would cause embarrassment to the sons as indeed the widow of the testator and be, to an extent, posthumously humiliating for the testator. Nothing would, therefore, turn on this circumstance which must be ignored.
(62) It is next contended that the absence in the will of any mention about the health of the testator particularly his heart ailment represents an unusual feature. I am, however, unable to agree that this is so. It is a common case of the parties that the testator had suffered a heart stroke, had met with an accident and even though' he was active and looking after his interest even at that ripe age, he was infirm. I do not, however, see why it was necessary for the testator to mention anything about his heart ailment in the will. It was not the will of a youngman who had a long life before him so that one may think why such a man should make a will in an early age. The testator admittedly was over 82 years of age when he executed the will. A reference in the will to the ailment was hardly necessary to give reinforcement to its naturalness or to justify its genuineness and the absence of any such reference in the will, to my mind, has no impact either on its genuineness or on the mental capacity of the testator at the relevant time. This circumstance must, likewise be ignored.
(63) It is then contended that the signature of the testator at the ripe age of 82 or 83 when he made the will would not be as firm as would ex facie appear on the face of the will and this contention must be rejected on the short ground that the comparison of the signature on the will and the contemporaneous documents admittedly signed by the testator which have been placed on the record and were marked as Ex. P4 to Ex. P6, Ex. P8, Ex. P9, Ex. P10, Ex. Pi I, Ex. P13 to Ex. P19, Ex. P20 and Ex., P26 clearly shows that even though in the last few years of his life and inspite of the heavy burden of age and infirmity, the testator retained a firm hand. It is also difficult to seriously entertain such a contention in the face of the most unimpeachable evidence that the will was executed by the testator and the evidence has been referred to and discussed above. This contention must also fail.
(64) Lastly, it is contended that if the testator had in fact made a will, having regard to the normal course of events, he would have mentioned during his last few years either of his intention to make the will or of the factum that he had made one. This contention does not impress me at all because it is not always necessary that a testator would take his relations or friends into confidence with regard to a will except those who are asked to either help him in drafting it or preparing it or in its execution, registration or attestation. It is well known that will is an important document particularly where some members of the family are sought to be discriminated against having regard to the circumstances that may appear to the testator to provide a justification for it. It is equally well known that when once it is known that a will has been drawn and executed, it can lead to unnecessary unpleasantness whether its contents are disclosed or not and it is never in the interest either of the testator or those who arc either beneficiaries or have been deprived of the benefit to know of the execution of the will or of its contents. The wills are normally made in secrecy and it is only those very closely connected with its preparation execution etc. who would be repository of confidence of the testator and the evidence of Public Witness 1 and Public Witness 2, as indeed of the younger son, whose son is the principal beneficiary, leaves no manner of doubt that these three persons were aware of the will, two of whom had attested it. I do not sec how this circumstance could in any event derogate from the genuineness or of the validity of the will.
(65) As a result of the aforesaid discussion it must be held that the grant as well as the appointment of the guardian of the then minor with reference to the property were well merited. In the result, the appeals fail and are hereby dismissed. C.M. 627/71 fails while C.M. 27/71 is infructuous and are disposed of accordingly. In the circumstances, parties would bear their own costs.