SAKJOO PROSAD C. J.: This appeal relates to an application for grant of Probate or letter of Administration with a copy of the Will annexed alleged to have been executed by Ram Singh Manki of Sonari in Mauza Abhypur. It is dated 6th Chaitra 1357 B. S. corresponding to 20-3-1951. Ram Singh Manki admittedly died on 29-5-51, leaving about 36 bighas of lands, a house and some other properties. He also left behind Musst. Durgamani Manki, a sister, and Mst. Sulochana Bhumiz, a kept or wife, who are the caveators to the application. The propounder of the document is Bhat Kurmi, son of Bahadur Kurmi. of Sonari, who claims as a legatee under the document. (2) The' grant of probate is opposed by the caveators and they challenge the will as fraudulent. They allege that Ram Singh Manki who died in Jeth, had been suffering from illness since one year before his death, and he lost his senses about 8 or 10 days earlier before dying; Bahadur Kurmi the father of the propounder, taking advantage of his unconsciousness, took his thumb-impression on some stamp paper purchased by him and fabricated the document. This he did according to the caveators, by misrepresenting that the step was necessary to protect Ram Singh's properties though the actual facts came to be known later. They, therefore, contend that the will is not a genuine will and the application for Probate should be refused. (3) The main issues which arose for consideration in the case were whether the Will propounded by the plaintiff was the last will and testament of the deceased Ram Singh Manki or whether it was a forged and fabricated document as stated by the defendants caveators. It was also argued that even if the document is held to be genuine, it cannot be regarded as a will at all inasmuch as there was no specific disposition of property on the face of the document and no probate could be granted in respect of such an instrument. The learned District Judge who tried the case answered all the relevant issues in favour of the plaintiff rejecting the case of the defendants. He held the Will to be genuine and the last Will and Testament of the deceased and decreed the suit directing issue of probate and letters of administration with respect to the assets of the deceased.
The learned District Judge who tried the case answered all the relevant issues in favour of the plaintiff rejecting the case of the defendants. He held the Will to be genuine and the last Will and Testament of the deceased and decreed the suit directing issue of probate and letters of administration with respect to the assets of the deceased. The defendants have, therefore, preferred this appeal. (4) At the trial, the plaintiff examined the writer of the Will Pulin Behari Bhattacharjee (P. W. 1) and two attesting witnesses, Sambhu Kurmi (P. W. 2) and Sadhu Charan Bhumiz (P. W. 3). The evidence of these witnesses clearly proves that the Will (Exhibit 1) was duly executed and attested at the instance of Ram Singh Manki when he was in a conscious state of mind about two months prior to his death. The Will has also been proved to bear the thumb impression of Mst. Sulochana, one of the caveators, herself, who was the wife or concubine of the deceased, and Mst. Sulochana has not ventured to deny the same. (After discussion of the evidence on this point his Lordship preceded:) If the evidence of these witnesses is accepted, as it has been rightly accepted by the Court below, then it must be held that the Will is. a genuine Will and was duly executed and attested. (5) Much stress has been laid upon some discrepancy in the evidence of the witnesses as to the time when the document was executed and attested. It is suggested that on account of this factor alone, the Will should be held to have been fabricated. If the evidence on the point is carefully scrutinised, the alleged discrepancy will not be found to be of much consequence. The estimate of time given by the witnesses is bound to be at best only approximate. The scribe in his evidence has stated that on the date of execution of the Will, Mst. Sulochana went to call him early in the morning, but he actually went to the testator's house in the afternoon. The scribe had apparently no experience of drafting such documents and he admits that he took the assistance of an Assamese book in preparing the same.
Sulochana went to call him early in the morning, but he actually went to the testator's house in the afternoon. The scribe had apparently no experience of drafting such documents and he admits that he took the assistance of an Assamese book in preparing the same. The instructions given to him by the testator as to the manner of the disposition, the execution and attestation of the document by the witnesses, must evidently have taken some time. This would be almost consistent with the time mentioned by the witness,. Sadhu Charan who says that the document was written about 4 P. M. (shows the time with reference to the sun's position). There is, of course, some discrepancy in the statement of Sambhu Kurmi when he said that he used to attend to his work at the garden at about 9-30 A. M. and Ex. 1 was written and executed before that. This may be due either to loss of memory or confusion of thought or even an attempt on the part of the witness to conceal the fact that he may have come away from his duty to attest the document. But this alone will not be enough to discredit his evidence on the point of execution and attestation. A view of the evidence shows quite clearly that the document must have been executed & attested in the afternoon of that day. (6) It has been also argued that one of the important attesting witnesses, Nasiruddin Khan, has not been examined in the case. It is urged that Nasiruddin did not venture to go into the witness-box because of a letter which he hact written and which was in the possession of Kama-khaya Prasad Barua, the Mauzadar, who was examined for the appellants. Much reliance has been placed upon the evidence of this Mauzadar and another witness, Nitai Bagdi, appearing for the defendants. The Mauzadar says that two days before the death of Ram Singh, Nitai reported to him at about dusk that Ram Singh was seriously ill and his whole body was swollen and that in that condition of his health, Bahadur forcibly obtained a paper executed by Ram Singh and asked Nitai to bear witness to the execution of the same to which Nitai did not agree.
The Mauzadar also deposed that Nasiruddin had sent him a letter at night, the same day that Nitai met him, which letter he had filed in Court on the previous date of hearing. The witness did not prove that letter in his evidence and it has, therefore, not been exhibited. We can. therefore, take no notice of it or its contents. We do not know in what circumstances this letter came into being. His evidence of what he learned from Nitai is mere hearsay. The Police Station at Sonari is at a distance of about half a mile from his house, but he neither advised Nitai to report the matter to the Police nor he himself take any action on it. What is significant is his own admission that Sulochana or Durgamani, the appellants, did not go to him and complain about the will before the death of Ram Singh, which would have been quite natural if the facts stated by the witness were correct. The evidence of Nitai is equally valueless for the reasons given above. He states that the appellants were not present at their house when the incident complained of happened and goes to the length of supporting the case in the Written Statement that Bam Singh was unconscious at the time. If he thought it his duty to report to the Mauzadar, it is inconceivable that he would not speak of it to the appellants if the facts deposed to by him were actually correct. No reliance can, therefore, be placed upon such testimony, and the learned District Judge was justified . is not attaching any importance to such evidence. Plaintiffs' witnesses have duly proved that the Will bore the thumb-mark of Mst. Sulochana herself and she has not ventured to deny the same. It is impossible to believe that she would be a party to any such act of Bahadur as deposed to by the witnesses aforesaid. (7) It is then argued that the onus to prove that the Will was a genuine Will and the last Will and testament of the testator, and to remove all doubts and suspicion from the mind of the Court, was entirely upon the plaintiff.
(7) It is then argued that the onus to prove that the Will was a genuine Will and the last Will and testament of the testator, and to remove all doubts and suspicion from the mind of the Court, was entirely upon the plaintiff. The plaintiff had failed to examine himself or his father and kept out of the witness box to avoid inconvenient questions in cross-examination; it was particularly incumbent upon the plaintiff to do so when allegations of fraud had been made. Allegation or no allegation of fraud, the onus probandi is certainly on the propounder. But the question whether the will has been proved, must be determined in the light of reasonable probabilities, based not only upon the evidence adduced by the plaintiff but also upon the other evidence and circumstances of the case. The Court must take into account all those factors which affect reasonable probabilities and not look at the evidence in water-tight compartments. The examination of the plaintiff or his father was not so material, when there was no such suspicion arising from the circumstances as to affect the value of the evidence already adduced by the plaintiff. On the contrary, it was incumbent upon Sulochana to examine herself if she wanted to rebut the evidence that the will propounded bore her thumb-mark. (8) It has been next contended that the will is an officious document. It is in favour of a person who was an utter stranger to the family of the testator and was not even the latter's casteman. It is also an unregistered document and appears to have been prepared on some stamped papers purchased as early as January 1951 in the name of the father of the plaintiff when there was no talk of the execution of any such will. It also does not convey any interest to the widow or even to the sister except some maintenance which is not even charged on the properties. It also does not provide anything for the daughter of Ram Singh who, it is argued is in existence. These arguments require serious notice. Ram Singh, as we have already seen, was an old man of about 70 years; he had pain in his waist, and although he could walk about with the help of a stick, he was incapable of any hard work. He had no male issue admittedly.
These arguments require serious notice. Ram Singh, as we have already seen, was an old man of about 70 years; he had pain in his waist, and although he could walk about with the help of a stick, he was incapable of any hard work. He had no male issue admittedly. The evidence of the scribe is that Ram Singh's daughter by Sulochana used to read in his school and that sometimes this daughter was sent to call him. There is no other witness who has spoken of the existence of any such daughter. It is to be remembered that the scribe was new to the locality and it was only in March, some days before the date of the will, that he had come to be acquainted with Ram Singh. His knowledge of the relationship, therefore, cannot be intimate. He describes Mst. Sulochana as the wife, whereas in the will she is described as a concubine of Ram Singh. It is significant that in the Written Statement of the appellants there is no mention of the existence of any such daughter. If Ram Singh had really any daughter by Sulochana, it is impossible to imagine that Sulochana would not have mentioned anything about her existence in the Written Statement and taken objection on the ground that special citation should have been issued to her. It is, therefore, quite possible that this so-called daughter of Ram Singh may be a daughter of Sulochana, but not by Ram Singh himself, and the statement made by the scribe, Pulin Behari, is attributable to his want of intimate knowledge of Ram Singh and his family. On the evidence, therefore, the position is that Ram Singh had left only Mst. Sulochana, his wife or concubine, and the other woman who is a deaf sister living in the same compound of Ram Singh's house. The evidence of the witnesses is that the plaintiff and his father, Bahadur, had been not only looking after the properties of Ram Singh but spending money on his behalf and attending to his comforts in life, and that the plaintiff was also residing in his house. This shows that the testator had an attachment for the plaintiff and his father who were almost like near relations to him.
This shows that the testator had an attachment for the plaintiff and his father who were almost like near relations to him. It appears that the testator was satisfied with the management of the properties by the plaintiff and his father, Bahadur, & had more confidence in them than in the appellants who are females presumably unable to manage the properties. Besides, the will shows that the testator had made provision for the maintenance of these women so long as they were there. It cannot, therefore, be said that the will was merely an officious will. Under S. 39, Transfer of Property Act, the claim for maintenance, though not actually charged over1 the property, could be enforced even against a transferee if he had notice of the claim. Evidently the maintenance had to be paid out of the profits of the immovable properties belonging to the testator. The fact that the document was prepared on stamp purchased by Bahadur some time in January before the date of execution of the document. should not matter very much in view of the admittedly intimate relationship between the parties. It is possible that Bahadur may have been taking interest in the testator, even on account of the lure of the properties which belonged to him and to which, on his death, there was hardly any direct heir, and there may have been some talk between the testator and Bahadur about the execution on a will earlier, and the matter may have been postponed until probably the testator thought it best to execute the document. All this, however, is mere speculation. The fact remains that on the materials there is nothing to indicate that there was any fraud or undue influence on the part of the plaintiff and his father in having the document executed by the testator. The fact of the execution of the document having been witnessed by the appellant, Mst. Sulochana herself, definitely negatives any such inference of fraud. (9) Lastly I will examine the last but not the least important contention of Mr. Lahiri, which is that on the face of the document itself, there is no clear disposition of property in favour of the plaintiff or any body whatsoever and, therefore, no probate could be granted in respect of such a document.
(9) Lastly I will examine the last but not the least important contention of Mr. Lahiri, which is that on the face of the document itself, there is no clear disposition of property in favour of the plaintiff or any body whatsoever and, therefore, no probate could be granted in respect of such a document. Section 89, Succession Act, says that "a will or bequest not expressive of any definite intention, is void for uncertainty". Here it is contended that there is no definite intention to demise the properties in favour of the plaintiff or the appellants and, in the circumstances, the instrument is void and incapable of being probated. The point, I confess, has caused me a good deal of misgivings. A translation of the document which is on the record, runs thus: "To Sri Bhut Kurmi, s/o Sri Bahadur Kurmi, Sonari Town, Mouja: Abhayapur Executant: Sri Ram Singh Manaki s/o late Purukhutam Manaki, resident of, Sonari Town, Mouja: Abhayapur, DIst. Sibsagar. This will is executed to this effect, following that I am ill; hence thinking it reasonable to execute a will in respect of my entire moveable and immoveable properties with my own accord, while I am Jn possession of full sense, I execute this will embodying the following terms: It will come into force after my death. Be it noted that they have maintained me for about three years and managed my entire properties on payment of the revenues. They will perform my funeral rites. I have got one sister and one concubine. So I long they live here, they will have to be maintained. To this effect, I execute this will with I sound health and with my own accord. 6th Chaitra 1357 B. S. corresponding to 20-3-51 A. D. L. T. I. of Ram Singh Manaki. Sd/ Pulin Bhattacharjyya". A perusal of the document thus shows that there are imperfections in the document and it is open to criticism. One has, however, to remember that the document was written by a person who did not possess the requisite experience in drafting such instruments. He had not even proficient knowledge of the Assamese language &, In order to prepare the document, he had to take the assistance of an Assamese book. This lack of adequate capacity on the part of the scribe may account for the imperfections in the document.
He had not even proficient knowledge of the Assamese language &, In order to prepare the document, he had to take the assistance of an Assamese book. This lack of adequate capacity on the part of the scribe may account for the imperfections in the document. At the same time, one cannot forget that endeavour should be made to give effect to the document as far as possible, and not to adopt a construction which may have the effect of defeating it. The construction, of course, must depend upon the plain grammatical meaning of the document which is sought to be construed, and if there is an inherent lacuna in the document, the Court, of course, cannot fill that lacuna. But if without stretching the language of the instrument, it is possible to give a construction which may fulfil its purpose, then there is no reason why such a construction should not be accepted. Here we find from the instrument that it is addressed to the plaintiff, son of Bahadur Kurmi, and executed by Ram Singh Manki. The document expressly indicates that the testator intended to execute a will in respect of his entire movable and immovable properties. It also gives the reason why the document is being executed in favour of the plaintiff, namely, that the plaintiff or his father had maintained the testator for about 3 years and managed his entire properties on payment of revenues. They were also authorised to have his funeral rites performed, and so far as the sister and the concubine were concerned, there was an obligation on the part of the legatee, whose name was mentioned at the top, to maintain them as long as they lived there. Taking these recitals together, I am on the whole satisfied that there was a bequest in favour of the 'plaintiff of all the movable and immovable properties of the testator, subject to the payment of maintenance to the appellants. I have already said that this maintenance was clearly payable out of the profits of the properties of the testator demised in favour of the legatee and the appellants would, therefore, have the right to enforce this maintenance against the plaintiff, because the latter could not have the benefit of the legacy without discharging the obligation with which it is burdened.
On the whole, therefore, I am satisfied that in spite of the criticism levelled at the terms of the document, the document does speak as a will in favour of the plaintiff and is capable of being probated. In my opinion, therefore, the suit was rightly decreed by the Court below in favour of the plaintiff, and probate and letters of administration with a copy of the will annexed granted to him. (10) The appeal accordingly, fails but in the circumstances, as rightly held by the Court below, there would be no order for costs in this appeal either. (11) DEKA J.: I agree. Appeal dismissed