PADAM CHAND v. BHARAT SINGH — 1970 DIGILAW 257 (DEL)

HARDAYAL HARDY, J. ( 1 ) THIS Regular First Appeal is directed against the judgement and decree of a subordinate Judge whereby the plaintiff s suit for a declaration to the effect that he was the exclusive owner of the house in dispute and that the defendants had no right or interest therein, was dismissed. ( 2 ) THIS house in dispute was last owned by one Jagan Nath who was adopted son of Lala Ishri Prasad. On the death of Ishri Prasad. Jagan Nath and his adoptive mother Shrimati Miro were his only heirs. Ishari Prasad and his brother L. Peshi Lal were members of a joint Hindu family which owned moveable and immovable property including cash etc. After the death of Isliri Prasad, his widow Shrimati Miro for herself and as guardian of her adopted son Jagan Nath, sought partition of the joint family property and a registered deed of partition dated 12-7-1907 was executed between the parties. ( 3 ) ON 22-5-1933 Jagan Nath entered into an agreement with his mother Shrimati Miro and his wife Shrimati Jain Mati (Ex. P 3) whereby a provision was made for the maintenance of Shrimati Miro during her life-time and after her death for maintenance of Shrimati Jain Mati out of the income of the property which is the subject-matter of the suit that has given rise to the present appeal. ( 4 ) JAGAN Nath died in the year 1938 and on his death his wife Shrimati Jain Mati was his sole heir- Jain Mati died issue-less on 7-4- 1957 and it is the case of the plaintiff that he is the nearest collateral of her husband Jagan Nath and as such entitled to succeed to his estate. The plaintiff alleged that Bharat Singh (defendent No. 1) who is brother of Jain Mati had falsely set up a title to the house in the name of his minor daughter Adesh Kumari (defendant No. 6 ). As a result, defendants 2 to 5 were tenants in the said property had also started denying the plaintiff s title. Hence the suit for a declaration as mentioned above. ( 5 ) DEFENDANTS 1 and 6 who were the main contestants in the suit resisted the plaintiff s claim on various grounds. It is. however, with only two such grounds that we are concerned in this appeal. Hence the suit for a declaration as mentioned above. ( 5 ) DEFENDANTS 1 and 6 who were the main contestants in the suit resisted the plaintiff s claim on various grounds. It is. however, with only two such grounds that we are concerned in this appeal. It was contended by the defendants that Jain Mati was holding the property as a widow and that she became its absolute owner by virtue of Section 14 (1) of the Hindu Succession Act, 1956, that before her death Jain Mati made a will on 6-4-1957 by which the house in dispute was bequeathed to defendant No. 6 and that as such the plaintiff had no title to the same. ( 6 ) THE plaintiff field a replication wherein contended that Jain Mati did not make any will nor was she mentally and physically capable of making any will at the time she was alleged to have done so. It was also contended that Jain Mati had no right to make any will. The trial court held that Jain Mati was the full owner of the property that she had a right to make a will in respect of her property and that she had actually made a will bequeathing the house in dispute to Adesh Kumari, defendant No. 6, and that the will (Ex. P. 1) was a genuine document. ( 7 ) THE present appeal is by the plaintiff whose suit, as stated above, was dismissed by the learned subordinate Judge. ( 8 ) AT the hearing of the appeal, it was conceded by the learned counsel for the parties that if Jain Mati had only a restricted estate in the property in dispute then she had no right to make a will and the property would develope on the appellant as the nearest collateral of her husband Jagan Nath. On the other hand, if she was the absolute owner of the property and the will was not proved, then too the property would devolve under Section 15 (1) (b) upon the plaintiff as the nearest heir of her husband. The appellant will thus be entitled to a decree being passed in his favour if he succeeds in making good either of the two points on which the decision of the trial court has gone against him. The appellant will thus be entitled to a decree being passed in his favour if he succeeds in making good either of the two points on which the decision of the trial court has gone against him. He will succeed if it is found that Jain Mati was only a limited owner of the property in dispute and had thus no right to dispose of her interest by means of a bequest. He will also succeed if the will Ex. P. I is not found to be a genuine document irrespective of whether she was a full or limited owner. In a way, therfeore, the question about the genuineness of the will is more important than the question about the nature and extent of Jain Mati s interest in the property. ( 9 ) THE appellant s counsel however, first addressed arguments on the nature and extent of Jain Mati s interest in the property. ( 10 ) IT was argued that the property in dispute admittedly belonged to. Jagan Nath who had transferred it to his wife Jain Mati for her maintenance for life under Ex. P. 3. The interest transferred to her was. thus restricted in its enjoyment to Jain Mati personally; it could not. therefore, be further transferred by her in view of Section 6 (d) of the Transfer or Property Act, 1882 which lays down that an interest in property restricted in its enjoyment to the owner personally, cannot be transferred by him or her as the case may be. In support of his argument the learned counsel cited ( 1 ) Basangowda Virupaxgowda v. Irgowdati Kallangowda (AIR 1923 Bombay 276) (1) and (2) Bulkan Sah and others v. Ganga Devi Nathani and others (AIR 1964 Patana 214 ). (2) Neither of these cases appears to us to have any bearing on the question. In the first case there was a document of compromise between a widow and a minor whereby it was agreed that the widow would neither sell nor mortgage a certain property which she had taken for the period of her-life-time. After her death the minor was to be the exclusive owner of the property. One of the creditors sought to attach the property in execution of a decree against the widow. After her death the minor was to be the exclusive owner of the property. One of the creditors sought to attach the property in execution of a decree against the widow. It was held that the restriction on alienation imposed by the compromise, prevented the judgment-debtor from having a "disposing power" over the property within the meaning of Section 60 Civil Procedure Code and consequently if the restriction was valid the property could not be attached. No such question arises in the present case. ( 11 ) THE second case dealt with the question whether a widow who had obtained certain property under a family arrangement whereby an absolute restraint was imposed on her right to alienate the same could create a valid lease in favour of a stranger when Section 10 of the Transfer of Property Act envisages that a condition of absolute restraint on alienation is void. It was held that Section 10 did not apply to a family arrangement as in such a case there was no transfer of propertywithin the meaning of Section 5 of the Transfer Property Act. But since the widow had obtained a life-interest in the property and there was an absolute restraint on her in the matter of encumbering the said property or any portion thereof even for her life-time, the lessee did not acquire a valid title in respect of the property in question on the basis of the lease in his favour as the lease was hit by Section 6 (d) of the Transfer of Property Act. There was no question in that case of the widow herself being the sole heir of the last male holder of the property and about her rights under Hindu Women s Rights to Property Act (XVIII of 1937 as amended by Act XI of 1938) and the Hindu Succession Act (XXX of 1956 ). ( 12 ) THE argument based on Section 6 (d) of the Transfer of Property Act therefore appears to us to be wholly devoid of substance. ( 13 ) IT was next argued that even if it is assumed that Jain Mati acquired the property before or after the coming into force of the Hindu Succession Act, 1956 it could not be held by her as a full owner under sub-section (1) of Section 14 of the said Act because it was acquired by her under an instrument (Ex. P. 3) which conferred a restricted estate on her and thus attracted the provisions of sub-section (2) of Section 14 which took the case out of the preview of sub-section (1 ). ( 14 ) AS the argument is founded on the document Ex. P. 3 it is necessary to examine its contents. It is a registered document which is written by a scribe in the first person in the name of Jagan Nath and is described as an agreement. It bears the date 22nd May, 1933 and is witnessed among three other persons, by Shrimati Miro and Shrimati Jain Mati. It begins by giving the early history of the property and goes on to say that Jagan Nath the executant was in possession of the entire partitioned property as an owner and that his mother Shrimati Miro and his wife Jain Mati were both entitled to maintenance allowance and had also a right of residence for which they had made a claim, that the executant had previously executed an agreement hypothecating certain property in their favour on the condition that Shmt. Miro would continue to receive a sum of Rs. 15. 00 per mensern as maintenance for her life and that after her death Smt. Jain Mati would continue recovering the same amount for her life. The said property having been sold away to meet certain liabilities, the executant by his present writing was hypothecating another property (which it may be mentioned is the property in dispute in this apepal ). for continued payment of the afore-mentioned maintenance allowance of Rs. 15. 00 per mensern to his mother Smt. Miro during her life-time and after her death to his wife Smt. Jain Mati for her life-time. ( 15 ) THE document further recites that in addition to what is contained therein Smt. Jain Mati also have separate rights for her life- time, that the executant shall not transfer the property to any other person and that like-wise, Smt. Miro and Smt. Jain Mati shall have no right to elienate the property in any way. ( 15 ) THE document further recites that in addition to what is contained therein Smt. Jain Mati also have separate rights for her life- time, that the executant shall not transfer the property to any other person and that like-wise, Smt. Miro and Smt. Jain Mati shall have no right to elienate the property in any way. ( 16 ) THE appellant s contention is that the restraint imposed by the agreement on Smt. Miro and after her death on Smt. Jain Mati was a restriction on their right of enjoyment and since Jain Mati acquired that property on the death of her husband subject to that restraint, she got only a restricted estate under the agreement. Counsel for the appellant cited a large number of cases in which the scope of sub-sections (1) and (2) of Section 14 of the Hindu Succession Act, 1956 has been considered. We shall refer to only a few of those cases on which special emphasis was laid by the learned counsel. The cases cited were Vaddaboyina Sesha Reddi v. Vaddaboying Tulasamma and another (AIR 1969 A. P. 300) (3), Mst. Kirpo and others v. Bakhtawar Singh (AIR 1964 Pandh 474) (4), Jaria Devi v. Shyam Sundar Agarwalla and other (AIR 1965 Calcutta 33) (5), Mali Bewa v. Dadhi Das (AIR I960 Orissa 81 ) (6 ). Eramma v. Veerupana and others (AIR 1966 S. C. 1879) (7 ). and Chajju Ram v. Mst. Bhuri and other (AIR 1969 Delhi 273) (8 ). ( 17 ) A close examination of these cases however shows that none of them can be of help to the argument of the learned counsel. The true meaning of sub-section (2) of Section 14 is that it is an exception to sub-section (1) of that section. The case will fall under sub-section (2) if a woman has acquired property by way of gift or under a will or any other instrument or under a decree or order of a civil court or under an award and the terms of the gift, will or other instrument or the decree, order or award have restricted the estate in the property. This sub-section, therefore, applies only to the property acquired by a Hindu female in the manner provided therein. In other cases sub-section (1) of Section 14 with the Explanation applies. This sub-section, therefore, applies only to the property acquired by a Hindu female in the manner provided therein. In other cases sub-section (1) of Section 14 with the Explanation applies. ( 18 ) IN all the cases cited above, the property held by the Hindu female was under a compromise decree or award or other instrument which conferred limited rights on her. She had no independent rights in the property. The source of her title was the award, decree or compromise or other instrument which gave her only limited rights. The Division Bench judgment of Inder Dev Dua C. J. and V. S. Deshpande J. in AIR 1969 Delhi 273 instead of supporting the contention of the appellant rather goes against it. In the case before the Supreme Court (AIR 1966 S. C. 1879) the woman had no right to the property which is not the case here . ( 19 ) IN the present case the source of Jain Mali s right in the property in dispute was not the agreement or family arrangement embodied in Ex. P. 3. It is true that during the life-time of her husband she was given only a limited right of maintenance in the property by virtue of the agreement, but on her husband s death in the year 1938 she acquired under Section 3 of the Hindu Woman s Rights to Property Act, the same interest in the property as her husband. The interest that devolved on her under the provisions of that section was no doubt limited interest known as a Hindu Women s estate (vide sub-s. (3) of Section 3, but nevertheless her interest was independent of the agreement Ex. P. 3. After the death of Jagan Nath, her interest in the property was what she got under the law of inheritance laid down in the aforementioned Act and not under any agreement. ( 20 ) AS against the cases cited by the counsel for the appellant, Mr. Bishamber Dayal. counsel for the defendants-respondents I and 6, referred us to two decisions of the Supreme Court in Sukhram and another v. Gauri Shankar andanother ( 1968 (1) SCR 476 (9) and Seth Badri Prasad v. Shrimati Kanso Devi (1969 (2) Supreme Court Cases 586) (10 ). Bishamber Dayal. counsel for the defendants-respondents I and 6, referred us to two decisions of the Supreme Court in Sukhram and another v. Gauri Shankar andanother ( 1968 (1) SCR 476 (9) and Seth Badri Prasad v. Shrimati Kanso Devi (1969 (2) Supreme Court Cases 586) (10 ). In the case of Sukhram and another, the appellant Sukhram, his brother Hukain Singh and his son constituted a joint Hindu family and we re governed by the Mitakshara Law of the Benares School. Hukam Singh died in 1952 leaving him surviving his widow. On December 15, 1956, the widow sold a half share in a house and a shop belonging to the joint family to the respondent. Sukhram filed a suit for a decree declaring that the sale by the widow was without consideration and for an order cancelling the sale deed. The suit was dismissed by the trial court and one appeal by the High Court. In appeal to the Supreme Court, it was contended on behalf of Sukhram and other appellants that under the Benares School of the Mitakshara law, a male coparcener was not entitled to alienate even for value his un-divided interest in coparcenary property without the consent of the other coparceners excepting in certain specified cases. It could not have been intended by Section 14 (1) of the Hindu Succession Act, 1956 that the widow of a coparcener should have a larger right than he himself had. It was held that on the death of her husband the widow became entitled to the same interest which Singh had in the joint family property under Section 3 (2) of the Hindu Women s Rights to Property Act, 18 of 1937. Of that interest, by virtue of Section 14 (1) of the Hindu Succession Act, 1956, she became the full owner on June 17, 1956 and being full owner, she was competent to sell it for her own purpose without the consent of the male coparceners of her husband. In Seth Badri Prasad v. Shrimati Kanso Devi (10) the widow got certain properties under an award given by an arbitrator in a partition dispute between her and five sons of her husband. The award stated that she would have a widow s estate in the properties awarded to her. In Seth Badri Prasad v. Shrimati Kanso Devi (10) the widow got certain properties under an award given by an arbitrator in a partition dispute between her and five sons of her husband. The award stated that she would have a widow s estate in the properties awarded to her. One of the sons filed a suit against her for perpetual injunction restraining her from committing acts of waste and from alienating the properties on the ground that she was a limited owner of the property. The trial court held that she had inherited the property under Section 3 of the Hindu Women s Rights to Property Act, 1937 and had become a full owner of the property under Section 14 (1) of the Hindu Succession Act. The decree of the trial court was confirmed by the first appellate court and also by the High Court in second appeal. On appeal to the Supreme Court it was held that the critical words in sub-section (1) of Section 14 were "possessed" and "acquired". In the context in which the word "possessed" had been used in Section 14, it meant the state of owning or having in one s hand or power. The word "acquired" had also to be given the widest possible meaning in view of the language of the Explanation which makes subsection (1) applicable to acquisition of property by inheritance or devise or by a partition or in lieu of maintenance or arrears of maintenance or by gift or by a female s own skill or exertion or by purchase or prescription or in any manner whatsoever. Where at the commencement of the Act, a female Hindu has a share in pint properties which are later on portioned by metes and bounds and she gets possession of the properties allotted to her, there can be no manner of doubt that she is not only possessed of that property at the time of coming into force of the Act but also has acquired the same before its commencement. ( 21 ) WE are, therefore, in agreement with the learned subordinate Judge that after the death of Jagan Nath Jain Mati inherited the property as a widow. The right which had been given to her earlier under Ex. P. 3, was not in consideration of her rights to succeed as a widow. ( 21 ) WE are, therefore, in agreement with the learned subordinate Judge that after the death of Jagan Nath Jain Mati inherited the property as a widow. The right which had been given to her earlier under Ex. P. 3, was not in consideration of her rights to succeed as a widow. It was in recognition of her right of maintenance as a wife. That right came to an end with the death of Jagan Nath because it was acquired under a sort of agreement between the husband and wife. After Jagan Nath s death, she inherited the property as a widow and was, therefore, not holding the same under any document. On the coming into force of the Hindu Succession Act, 1956, her estate as a Hindu widow was transmuted into an absolute estate and she became the full owner of the property which she could dispose of by a will. ( 22 ) THIS takes us to the second contention of the appellant viz. , that the will is not a genuine document. To prove the will a number of witnesses, namely, Santokh Singh (DW1), Joti Parshad (DW2), Dr. Panna Lal (DW3), Baleshwar Parshad (DW4), Jugal Kishore (DW5) and Bharat Singh, defendant No. 1, as DW6, were examined by the defendants. According to these witnesses, Jain Mati executed the will in question on 6-4-1957. It was written down by Santokh Singh (DW1 ) and was attested by seven witnesses. It was claimed that the will was read over and explained to the executant but after it had been read over to her she raised certain objection whereupon some was added and she again thumb-marked it. Thereupon the witnesses attested the same and an entry about the document was also duly made in the petition writer s register, copy of which is Ex. P. 2. After her death the will was got registered by Bharat Singh, defendant No. 1. ( 23 ) THE evidence of these witnesses was severely criticised by the appellant s counsel who contended that there were numerous discrepancies in the statements of these witnesses as to the time of their arrival, the order in which they arrived and other details of the transaction. ( 23 ) THE evidence of these witnesses was severely criticised by the appellant s counsel who contended that there were numerous discrepancies in the statements of these witnesses as to the time of their arrival, the order in which they arrived and other details of the transaction. It was argued that the will was allegedly executed by her on 6-4-1957 at about 3-30 P. M. and that she died on 7-4-57 at 11 A. M. i. e. within about 20 hours of the making of the will. The evidence disclosed that Bharat Singh who personally benefited under the will whereby the entire property of the testatrix was bequeathed to his minor daughter Adesh Kumari, had collected all the witnesses. He had arranged for the scribe and got the document attested by as many as seven witnesses. Jain Mati died in a house which was occupied by the five defendants who were her tenants but none of them was called as a witness for attesting the will. Baleshwar Parshad (DW4), Jugar Kishore (DW5), Dr. Panna Lal (DW3) and Joti Parshad (WD2) who deposed that they were present when the will was executed and had attested the same were known to Bharat Singh for over 20 years and were his friends. Jugal Kishore was also his employer. All these persons wereobviously interested in Bharat Singh. Three of the attesting witnesses, Mitter Sain, Kallu Mal and Sultan denied that they were present at the time the will was allegedly executed by Jain Mati. None of these three persons, however, denied their signatures on the will. Mitter Sain admitted that Bharat Sinah while asking him to attest the will had told him that it was the will of his sister and was in favour of his daughter. He, also admitted that at the time he signed the will Jain Mati was still alive. He also could not deny if the other witnesses had already attested the will. Kallu Mal (DW2) stated that he had signed the will because it was represented to him by Bharat Singh that Chaudhry Sultan Singh wanted him to do so. He admitted that he knew the contents and strangely enough the words "ba Zubani Jainmati" which when translated would mean "as per saying or request of Jain Mati" ). were written in the document in his own hand. He admitted that he knew the contents and strangely enough the words "ba Zubani Jainmati" which when translated would mean "as per saying or request of Jain Mati" ). were written in the document in his own hand. Sultan Singh also admitted having signed the will at the house of jain Mati where according to him the scribe was also present. He further admilted that the will contained the thumb-impression of Jain Mati and that he knew that the will. purported to dispose of the property in favour of Bharat Singh s daughter. ( 24 ) THE learned subordinate Judge has come the conclusion that the attesting witnesses Mitter Sain, Kallu Mal and Sultan Singh had not spoken the truth and that in his opinion the oral evidence fully established that the will was duly executed by Jain Mati and was attested by the witnesses who were present at the time, when she had affixed her thumb-impression to the document and that they had also signed it at the same time. ( 25 ) LEARNED counsel for the appellant strenuously argued that there was intrinsic evidence to establish that the will was not executed by Jain Mati in the manner it was alleged by the defendants witnesses. According to him, the thumb-impressions of Jain Mati we re taken at two places, one on the top and one at the bottom of the judicial paper which was blank at that time and that. it was only after her death that the document was written up; but the thum-impressions of the woman had already been taken at both ends of the paper a false reason was put forth, namely, that after the will had been read over to her she wanted certain alteration to be made and as there was not enough space at the bottom, a few words were added on the top above the thumb-impression, so as to give the document an appearance of reality. Likewise the name of an additional witness was also added on the top and his signatures were obtained thereon. ( 26 ) THERE is not warrant for the inference which the learned counsel for the appellant wants us to draw from the presence of two thumb-impressions of the executant. Likewise the name of an additional witness was also added on the top and his signatures were obtained thereon. ( 26 ) THERE is not warrant for the inference which the learned counsel for the appellant wants us to draw from the presence of two thumb-impressions of the executant. If the intention of the propounder of the will was to forge as false document, it was not necessary that he should obtain the signatures of the executant at two places nor was it necessary that he should obtain the signatures of as many as seven persons on the document,secondly, Mitter Sain (Public Witness 1) who deposed. that he had attested the. will at the request of Bharat Singh and was nut personaly present at the house of Jain Mati admitted the the paper on which he was asked to put his signatures had already been written before that and that the woman was alive when he did so. He also could not deny if the other witnesses had attested the will. The other witness Kallu Mal (Public Witness 2) who too stated that the will was signed by him not at the house of Jain Mati, also admitted that he knew the contents of the will. Sultan Singh who admitted that he had signed the will at the house of Jain Mati also knew what ihe contents of the will were when he signed it and he further stated that the will contained the thumb-impression of Jain Mati at that time. ( 27 ) IN view of this evidence it is difficult to hold that Jain Mati s thumb-impressions were obtained on a blank sheet of paper. ( 28 ) THE next important submission made by the learned counsel for the appellant was that Jain Mati was not in a fit state of health to execute the will. According to him, she was un-conscious on that day and died of diabetes on the next day. ( 28 ) THE next important submission made by the learned counsel for the appellant was that Jain Mati was not in a fit state of health to execute the will. According to him, she was un-conscious on that day and died of diabetes on the next day. It was urged that Jain Mati was not keeping good health for the last four or five years that she died of illness the next day after the will was executed, that the disease she was suffering from was diabetes and that a patient suffering from such a disease generally suffers from coma before he or she collapses and that the condition of the deceased was such that the scribe had to hold her hand and put her thumb-impression on the paper. These circumstances clearly indicated that she neither had a disposing mind nor was there any occasion for her to express her mind. A reference was also made to the language of the will and it was pointed out that the language was so highly technical that she could not have understood the contents of the document unless it was explained to her, but it was by no means certain that that was done. According to the learned counsel, these facts made the will a highly suspicious document. It was, therefore, for the propounder of the will to remove that suspicion which he had failed to do. ( 29 ) THE manner in which the party propounding a will or otherwise making a claim under a will has to prove it, is now authoritatively settled by the decisions of the Supreme Court in H. Venkatachala Iyengar v. B. N. Thimmajamma and other ( AIR 1959 SC 443 ) (11), Shashi Kumar Banerjee v. Subodhkumar Banerjee ( AIR 1964 SC 529 ) (12) and Ramchandra Rambux v. Champabai and others AIR 1965 SC 34) (13 ). There is no doubt that in all cases in which a will is prepared under circumstances which arouse suspicion of the court that it does not express the mind of the executant or that it was prepared under highly suspicious circumstances, it is for the propounder of the will to remove that suspicion. There is no doubt that in all cases in which a will is prepared under circumstances which arouse suspicion of the court that it does not express the mind of the executant or that it was prepared under highly suspicious circumstances, it is for the propounder of the will to remove that suspicion. The presence of such suspicious circumstances naturally tends to make the initial onus very heavy and unless it is satisfactorily discharged the court would be reluctant to treat the document as the last will of the testator or testatrix. In the present case the trial court has on a detailed analysis of the evidence come to the conclusion that the defendant had successfully discharged the burden that lay on them. To some of that evidence we have already referred. The most important evidence in this case however is of Dr. Panna Lal, the physician, who was treating Jain Mati near about the time of her death. According to that witness, the deceased was in a good state of health and her mental condition was quite sound. He is not in any way interested in the defendants. An attempt was no doubt made by the appellant to show that Jain Mati was not treated by Dr. Panna Lal. He deposed that she was treated by Dev Dutt Vaid, Babu Ram Autar and Hakim Uma Shankar etc. But none of these persons was examined as a witness. On the other hand there is evidence to show that Dr. Panna Lal had treated Jain Mati towards the close of her life. In this connection our attention was invited to the judgment and proceedings in the earlier suit between Adesh Kumari and Summat Parshad, one of the tenants in the property in question who was defendant in that suit and is also a defendant in the suit from which the present appeal has arisen. The learned subordinate Judge who had given judgment in the earlier case had also come to the conclusion that Panna Lal had treated Jain Mati and had attested the will as alleged by the plaintiff Adesh Kumari in that suit. ( 30 ) IT was argued on behalf of the appellant that the judgment in the suit: Adesh Kumari v. Summat Parshad was inadmissible in evidence and that the learned subordinate Judge was in error in relying upon the finding in that judgment that Dr. ( 30 ) IT was argued on behalf of the appellant that the judgment in the suit: Adesh Kumari v. Summat Parshad was inadmissible in evidence and that the learned subordinate Judge was in error in relying upon the finding in that judgment that Dr. Panna Lal had treated Jain Mati and had also attested the will. . Reliance was placed by the learned counsel on a Full Bench decision of Calcutta High Court in Gujju Lall v. Fatteh Lall (AIR 6 Calcutta l71) (11) in which it was held that a litigation or a suit is not a transaction and that the word "right" as used in Section 13 must be interpreted in somewhat narrow sense. There is no valid reason for attributing such restricted import to the words "right" and "transaction" in Section 13 of the Evidence Act. It is true that a judgment which is not inter parties, is not res judicata but it is none-the-less admissible in evidence under Section 43 read with Section 13 of the Evidence Act as was held by the Patna High Court in Mahabir Mahton and other v. Mt. Sonmati Kuer and other (MR 1964 Patna 66) (13) and Sital Das v. Sant Ram and other ( AIR 1954 SC 606 ) (16) as a transaction by which the right claimed by Adesh Kumari was claimed and recognised, more particularly when the same grounds of title were taken in the present suit. ( 31 ) THE presence of Dr. Panna Lal at the time of execution of the will is also established by the certificate at the back of the will wherein it is stated that Jain Mati was in full senses and had affixed her thumb-impression in his presence and that the will was "told to her" and had been accepted by her. The learned subordinate Judge has also exhaustively dealt with the statements of witnesses examined on behalf of thei appellant and has come to the conclusion that the statements of none of the witnesses, viz. Mitter Sain (Public Witness 1), Kallu Mal (PW2), Sultant Singh (Public Witness 3), Kishan Lal (Public Witness 4) and Padam Chand (PW6) plaintiff-appellant inspire any confidence nor are they of much value. We agree with the learned subordinate Judge and are of the view that the will is a genuine document. Mitter Sain (Public Witness 1), Kallu Mal (PW2), Sultant Singh (Public Witness 3), Kishan Lal (Public Witness 4) and Padam Chand (PW6) plaintiff-appellant inspire any confidence nor are they of much value. We agree with the learned subordinate Judge and are of the view that the will is a genuine document. It was executed by Jain Mati while she was in full possession of her sense s and was of a sound disposing mind. The will is also a natural document as she would any day prefer her brother s daughter to collateral of her husband in whom she was not interested in any way. ( 32 ) BOTH the contentions urged on behalf of the appellant having been rejected, the result is that the appeal fails and is dismissed with costs.