Case: Moonga Devi &amp; Others Vs. Radha Ballabh

Mishra and put it on record of proceedings as to how and in what manner he had received the instructions to concede the question of the execution of the will which had been contested right from the time caveat was filed on January 9, 1966. Indeed, according to Mr. Chagla, Shri Mishra had made two admissions. The first was on January 31, 1966, when he stated that the validity of the will was not being challenged on the ground that the deceased was not in a sound disposing mind. Thereupon the issue was framed whether the will had been duly executed. The second admission or concession was made on October 3, 1966 when Shri Mishra did not even cross-examine the only attesting witness who had been produced. Mr. Chagla maintains that it was the bounden duty of the Court, particularly, when the appellants were illiterate ladies and it had been so pointed out in their petition made to the Court, to have taken good deal of care in the matter and not to have treated to whole case causally by disposing it of by merely making a comparison of the signatures himself which again was a course which was not legally permissible particularly in view of the circumstances of the present case.9. We find a lot of substance in the submissions of Mr. Chagla. We are wholly unable to comprehend how a matter of granting of probate could be disposed of in the manner in which it was done by the High Court. A narration of facts given in the earlier part of the judgment which has not been disputed on behalf of respondent Radha Ballabh fully establishes that this case has some very abnormal features. Here was an Advocate who had himself filed a caveat on behalf of the appellants in which the question of execution and genuineness of the will had been seriously challenged. In his presence an issue had been framed with regard to that matter. The execution of the will had to be proved in accordance with the provisions of Section 63 of the Indian Succession Act, 1925. The letters which had been written by Shri Mishras clerk contained no mention whatsoever of any instructions having been received from the appellants or of any statement having been made on the previous day conceding the execution of the will in accordance with those instructions. In these circumstances the only and the proper course which the High Court ought to have followed was either to ascertain from Shri Mishra about the exact circumstances in which he made that statement on October 3, 1966, and also refrained from cross-examining the attesting witness. In the absence of any satisfactory explanation by him the appellants should have been given a full opportunity to contest the grant of the probate and to cross-examine the sole attesting witness after recalling him. We are completely at a loss to understand how the learned Judge by mere comparison of the signatures on the will of the testator with his admitted signatures could decide the matter.10. It appears that according to the learned Judge the appellants could not be permitted to resile from the statement made by the Advocate because he was satisfied that the disputed signatures tallied with the admitted signatures. The first question to be determined was whether the admission had been made by the Advocate on any instructions given by the appellants. No attempt, however, was made to ascertain the true position in that direction which was indeed very unfortunate and regrettable. It is not merely the genuineness of signatures on which the proof of the execution of the will under Section 63 of the Indian Succession Act depends. It has to be proved that the will was attested in accordance with clause (c) of that section. That could not be done unless the statement of the attesting witness could be taken into consideration. In our judgment it could not be treated as evidence in the circumstances of the present case. It is abundantly clear that the manner in which the proceedings were conducted resulting in the grant of probate was such that there has been a gross miscarriage of justice. Learned counsel for the respondent Radha Ballabh has invited our attention to certain observations made in order of the High Court, dated November 12, 1968, by which the petition for grant of certificate to appeal to this court was rejected. It has been observed in that order and that matter was mentioned in the order of Mathur, J., dated July 10, 1967, that the caveat was signed only Sumitra Devi who had also filed her affidavit in respect thereof on January 9, 1966. Even if the signatures were of Sumitra Devi the application for the caveat was on behalf of the mother and the daughter and it was wholly immaterial if Moonga Devi had not signed it. It was clearly stated in the affidavit of Sumitra Devi in Para 5 that Moonga Devi was entitled to all the properties of Chhangur Sahu as his sole heir. It has also been emphasised in the above order that the application filed on behalf of the present appellants on February 22, 1957, was belated and that counsel Shri Kashi Nath Gupta through whom that application had been filed had made a statement that the said application had become infructuous, in view of the order passed by Mathur, J., on March 8, 1967. Reference was made to the statement of the attesting witness and the comparison made by Mathur, J., of the signatures. We find it very difficult to comprehend how these matters stated in the order disposing of the application for grant of a certificate can be of any avail or assistance. It was not the function of the court at that stage to re-examine the question on merits. At any rate, these facts were of no material consequence so far as the case of the appellants on the points considered by us was concerned.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]9. We find a lot of substance in the submissions of Mr. Chagla. We are wholly unable to comprehend how a matter of granting of probate could be disposed of in the manner in which it was done by the High Court. A narration of facts given in the earlier part of the judgment which has not been disputed on behalf of respondent Radha Ballabh fully establishes that this case has some very abnormal features. Here was an Advocate who had himself filed a caveat on behalf of the appellants in which the question of execution and genuineness of the will had been seriously challenged. In his presence an issue had been framed with regard to that matter. The execution of the will had to be proved in accordance with the provisions of Section 63 of the Indian Succession Act, 1925. The letters which had been written by Shri Mishras clerk contained no mention whatsoever of any instructions having been received from the appellants or of any statement having been made on the previous day conceding the execution of the will in accordance with those instructions. In these circumstances the only and the proper course which the High Court ought to have followed was either to ascertain from Shri Mishra about the exact circumstances in which he made that statement on October 3, 1966, and also refrained fromthe attesting witness. In the absence of any satisfactory explanation by him the appellants should have been given a full opportunity to contest the grant of the probate and tothe sole attesting witness after recalling him. We are completely at a loss to understand how the learned Judge by mere comparison of the signatures on the will of the testator with his admitted signatures could decide the matter.10. It appears that according to the learned Judge the appellants could not be permitted to resile from the statement made by the Advocate because he was satisfied that the disputed signatures tallied with the admitted signatures. The first question to be determined was whether the admission had been made by the Advocate on any instructions given by the appellants. No attempt, however, was made to ascertain the true position in that direction which was indeed very unfortunate and regrettable. It is not merely the genuineness of signatures on which the proof of the execution of the will under Section 63 of the Indian Succession Act depends. It has to be proved that the will was attested in accordance with clause (c) of that section. That could not be done unless the statement of the attesting witness could be taken into consideration. In our judgment it could not be treated as evidence in the circumstances of the present case. It is abundantly clear that the manner in which the proceedings were conducted resulting in the grant of probate was such that there has been a gross miscarriage of justice.Learned counsel for the respondent Radha Ballabh has invited our attention to certain observations made in order of the High Court, dated November 12, 1968, by which the petition for grant of certificate to appeal to this court was rejected. It has been observed in that order and that matter was mentioned in the order of Mathur, J., dated July 10, 1967, that the caveat was signed only Sumitra Devi who had also filed her affidavit in respect thereof on January 9, 1966.Even if the signatures were of Sumitra Devi the application for the caveat was on behalf of the mother and the daughter and it was wholly immaterial if Moonga Devi had not signed it. It was clearly stated in the affidavit of Sumitra Devi in Para 5 that Moonga Devi was entitled to all the properties of Chhangur Sahu as his sole heir. It has also been emphasised in the above order that the application filed on behalf of the present appellants on February 22, 1957, was belated and that counsel Shri Kashi Nath Gupta through whom that application had been filed had made a statement that the said application had become infructuous, in view of the order passed by Mathur, J., on March 8, 1967. Reference was made to the statement of the attesting witness and the comparison made by Mathur, J., of the signatures. We find it very difficult to comprehend how these matters stated in the order disposing of the application for grant of a certificate can be of any avail or assistance. It was not the function of the court at that stage tothe question on merits. At any rate, these facts were of no material consequence so far as the case of the appellants on the points considered by us was concerned.