Jalesar Mahto vs Juthan Mahto

Foster, J.—This is an appeal from the dismissal by the District Judge of Saran of an application for Probate of what is propounded as the last Will and testament of one Raghunath Koeri. The property in dispute consists of about 4 1/4 bighas of cultivated land with trees standing thereon valued by the Collector at Rs. 1,400. The applicant stated in his petition that the testator was his cousin agnate and he had no other near relation and that the testator executed a Will on the 9th August 1921 leaving all his property to the applicant, and died 12 days later. The Will is in the simple form which is in vogue in the mufassil and need not be quoted in detail. The caveator Juthan Koeri claims to be the brother of the alleged testator''s father and so son of the testator''s paternal grandfather Manrup Koeri. He alleges that Manrup Koeri''s wife''s brother Phakira Koeri, his maternal uncle, adopted him and left him all his property, consisting of some cultivation in village Patti. Manrup Koeri''s house, which the caveator describes as his ancestral house, is in village Nautan, ten miles from Patti.

In this house undoubtedly Raghunath Koeri lived, and it is common ground that lie had at the time of his death and for sometime before neither father nor mother nor brothers, but he had one sister Dipia Koirin who is married. The applicant, as I have said, asserts that he is a near relative of Raghunath Koeri deceased, and denies that Juthan, the caveator, had any relationship with Raghunath. On the other hand, Juthan asserts that he was his paternal uncle, and that the fact he lives elsewhere, namely, in Patti, is due to his having possession of Phakira Koeri''s lands. He contends that the document propounded is a forgery, the result of a conspiracy between certain persons. He adds that Raghunath on the date of the Will, namely, the 9th August 1921, was a minor and so incapable of making a Will.

It, may be mentioned here that Raghunath Koeri had been a certificated'' ward under the Guardians and Wards Act: His first guardian was one Bhimal Mahto who for some reason or other was removed and was succeeded by Anurag Mahto, admittedly ''the uncle of the present applicant. There are also certain recent occurrences which have to be kept in mind. Anurag Mahto ceased to be guardian for some reason or other, and on the 15th October 1920 Raghunath executed a zerpeshgi deed in favour of Biran Rai, who is a Rajput. Of these Rajputs the applicant deposes:" They are looking after the plaintiff''s case. They had taken farzi documents from Raghunath. I do not admit the kobalas and zerpeshgi executed by him." He includes amongst these Rajputs one Dasai Rai who came to Court as a witness on behalf of the caveator, and he asserts that Dasai Rai has set up Juthan in this case. Now, about a month after this zerpasgi deed, namely, on the 20th November 1920, Jalesar, the applicant, applied to the Court to be appointed guardian of Raghunath. On the 10th February 1921 Raghunath filed an objection in Court, purporting to be under his own signature, through a Pleader whose vakalatnama purports to bear Raghunath''s own signature. In this objection he took the ground that he had already attained majority and that Jalesar was a nephew of Anurag, Raghunath''s previous guardian who was removed for neglect of duty or dishonesty, and whose object now was to use his nephew as his instrument in misappropriating the property. On the 2nd July 1921 this application of Jalesar Mahto was dismissed in default of his appearance. The 9th August 1921 is the date of the Will and the 21st August 1921 is the date of Raghunath''s death. On the 18th October 1921, we are informed Raghunath''s sister Dipia of whom I have spoken executed a deed waiving all claims to the property of Raghunath and acknowledging Jalesar to be his legatee under the Will. On the 7th November 1921 the present application was made and the caveat was entered on the 23rd February 1922. The judgment dismissing the application for Probate was passed on the 26th August 1922.

The main points of Juthan''s case are that the Will is a forgery, that Raghunath was a minor at the date of Will, that he was unconscious for 15 days before his death, and that he was literate and so could have signed the Will himself instead of by the pen of Moti Ahir, and that the applicant Jalesar is in conspiracy with his uncle Anurag and others. So the issues are (1) as to the alleged testator''s testamentary capacity, and (2) as to the authenticity of the Will.

The question whether Raghunath was, a minor on the 9th August 1921 can be answered at once. The evidence is all in favour of the applicant Jalesar, now the appellant. The caveator might have produced copies of the proceedings under the Guardians and Wards Act in the District Judge''s Court, where very probably the Court recorded the age of the minor Raghunath. In such circumstances it cannot be supposed for a moment that Raghunath was, not sui juris on the 9th August 1921. No doubt, in this matter as in almost all important matters in this case, the evidence comes from Moti Ahir, the daffadar of Nautan. This Moti Ahir produced a chaukidars memorandum of births and deaths which ho says he wrote in the course of his duties, and in that we see that Raghunath Koeri was born in December 1899. So he would attain majority on some date in December 1920. I agree with the learned District Judge in holding that Raghunath was not a minor on the date of the execution of the Will.

The other question, as to the, authenticity of the Will, is much more difficult to determine. The attitude taken by the learned District Judge can be stated briefly. He admits that there is the evidence of Moti Ahir to show that on the 15th October 1920. (the date of the zerpeshgi to which I have referred), Raghunath Koeri put his thumb impression on the Registrars thumb impression register, a document which has been produced from proper custody, and he finds that that thumb impression has been proved to be identical with the thumb impression upon the Will. He also mentions that the scribe, two of the attesting witnesses and Moti Ahir who signed Raghunath''s name have deposed in support of the claim for Probate. But he finds this evidence untrustworthy in the face of the caveator''s case, and holds that the Will is not proved to be a genuine document. Against this position the present appeal has been mainly directed.

I recognize the principle that where there is a Will propounded, and the attesting witnesses and the writer of the document support it, and where their testimony is not seriously impaired in cross-examination, it behaves the Court of Probate to listen with the greatest caution to a caveator whose case rests for the most part on grounds of suspicion. On the other hand, speaking for myself, I should never be inclined to apply the principle in India without considerable discrimination. If the document could have been registered, as was the fact here, why was there no proposal to register it, especially when it was a document which would effect a defection of the course of inheritance and most certainly be challenged? If it was to have such important consequences, why, as the learned Judge points out, were the witnesses chosen from a limited circle of friends and kinsmen? If as seems to be proved by the objection and vakalatnama of the 10th February 1921 (of which I have spoken above) Raghunath could write his own name, and if he was not bedridden or seriously ill, why did, he use the pen, of Moti Ahir and only affix his thumb impression? If more than one of Ragunath''s authentic thumb impressions are, as, the appellant alleges, in existence, why was that, one of the alleged impressions selected for production in Court which had, in its support only Moti Amir, when we know that there is the zerpeshgi deed in the custody of strangers actually interested in the authenticity of their document?

As to Moti Ahir''s evidence, I wish to make a few comments. His deposition is the bulwark of the complainant''s evidence. He comes to the Court to prove four important documents. There is the chaukidar''s memorandum of births and deaths of which I have spoken. There is his signature, on the thumb impression register obtained, from the record room; he is the only Witness, who can depose to any personal knowledge in this matter. He says that in his presence Raghunath affixed this thumb impression in this register in the Registration Office at the time when the zerpeshgi deed of 15 October 1920 was being registered and, he himself signed below the thumb impression and also identified Raghunath to the Registrar. Then, looking at the Will, we find that it purports to be signed by Raghunath Mahto by the pen of Moti Ahir. Lastly the deed of relinquishment, as it is called, of Raghunath''s sister Dipia is covered with signatures of Moti Ahir. Dipia herself and the two witnesses of the document, who have not been called, signed by the pen of Moti Ahir at the time of the execution of the deed, and Dipia again at the Registration Office signed by the pen of Moti Ahir who also formally identified her and signed, his, name as identifier. It is noticeable that the scribe of this document is the same as the scribe of the Will and whereas the scribe''s deposition is full of information, as to the mode of execution of the Will, when he was asked about the deed of relinquishment he states, "I do not remember any ludavi deed executed by Dipia in favour of Ganeshi Mahto and written by him. It is dated 18th October 1921. I do not remember how the signature of the executant was made. I do not remember at what time I scribed the said ludavi deed." So Moti Ahir is a very" important witness. He admits that Raghunath though he had dysentery, could move about on the day when he executed the Will. He states that the Will was written at the applicant''s door. He was passing by that way when he was called and set down. It is an unusual occurrence to find one person taking so large a part in all the important documents, in the chaukidari memorandum 25 years ago, in the thumb impression register nearly 21 years late, at the Registration Office, in the Will executed at Nautan and in the deed of relinquishment both at the place of execution and at the Registry Office three miles away.

Moreover there is a very forcible argument which seems to have prevailed with the learned District Judge. The facts proved suggest a strong doubt whether the whole story of the appellant is true. We are told that in October 1920 Raghunath, probably then a minor, executed a zerpeshgi deed in favour of one Biran Rai the deed that has not been produced to prove the thumb impression of Raghunath and to prove that he was illiterate; I have discussed this already. The applicant Jalesar stigmatised this document as farzi, nominal. We know that a month after the registration of this zerpeshgi deed Jalesar applied to the District Judge to be appointed guardian of Raghunath, and that Raghunath himself went into Court and entered objection under his own signature, protesting that he was sui juris and that Jalesar Mahto was set up by Jalesar''s uncle Anurag Mahto, the discharged guardian. We know that this objection was successful in the ex parte decision of July 1921, though of course the success was probably due to Jalesar''s abstention. Jalesar tells us that Raghunath had dysentery and was nursed by him. After he had nursed him for a month at his (Jalesar''s) house Raghunath announced that as Jalesar had attended him in his illness he would execute a Will in his favour. He executed the Will within; four or five days. The general evidence shows that when this young man of 21 years executed a Will he was able to move about the house, a fact which indicates that he was not probably apprehensive of an early death. In connection with Raghunath''s last illness; Juthan''s account is that he came over to Nautan and attended Raghunath at the ancestral house. But unfortunately neither side has produced any baid or village doctor. Now we know that in February 1921 Raghunath regarded Jalesar and his uncle Anurag as persons having designs upon his property and we are asked to believe that six months later he had so changed his mind that when suffering from what after all is not an uncommon ailment he executed his last Will and testament bequeathing all his property to Jalesar. It is surprising, therefore, that in the whole record we find no specific account of a reconciliation between these two men; the matter remains a mystery. It appears to me that Juthan Koeri, the caveator, has produced acceptable evidence to prove that he is in fact Raghunath''s father''s brother Jalesar has not only mentioned any reconciliation between himself and Raghunath, but he has not stated, what is an important thing in India, who applied the fire at the cremation of Raghunath. He denies that Juthan came to Nautan. On his part Juthan has deposed that it was he who applied the fire. Whether Juthan is entitled to the property of Raghunath as the nearest male agnate, or whether his claim would be affected by his relation with Phakira, is not the present question. But this evidence as to the cremation is quite uncontradicted, and, in my opinion, highly significant. Then we see within two months after the death of Raghunath Jalesar obtained from Raghunath''s sister Dipia the deed of relinquishment and three weeks later applied in the District Judge''s Court for Probate.

The suggestion on the part of the caveator is that the proved facts fit in much more easily with his account of fraudulent attempt to seize the property of an unfortunate youth than with a bequest made out of gratitude and affection to a person who has not shown in detail how he is related to Raghunath, and who erstwhile was Raghunath''s adversary in the Court.

The evidence - in-chief and cross-examination is unsatisfactory in that it has never gone below the surface. In the result numerous questions that suggest themselves must remain unanswered. This increases our responsibility. But the District Judge who decided the case is an Indian gentleman of considerable experience. He finds that it is extremely doubtful whether Raghunath would have ever executed such a Will, and he considers the circumstances extremely suspicious. He sums up his position as follows: "The, non-registration of the Will and its not being signed by Raghunath though literate and the fact that Raghunath strenuously objected to Jalesar being guardian as he thought Jalesar would misappropriate his property and the fact that the objector is a close relation to the deceased and there is no ground for giving the property to Jalesar in preference to him all go to show that the Will propounded is an extremely suspicious document and it is not likely that Raghunath did execute it."

It seems that the learned District Judge does not believe the attesting witnesses and the scribe called on the applicant''s side. If they had impressed him by their demeanour he would not perhaps have put them aside without examining their evidence. This is a matter which must assuredly be taken into account, when, as in the present case, both parties have succeeded in the course of their arguments in this Court in casting doubts upon the case propounded by the opposite party. In my opinion the appellant Jalesar Koeri has not shown sufficient ground for our interference with the District Judge''s decision.

I would dismiss the appeal. The hearing fee to be assessed as in ordinary first appeals.

Dawson Miller, C.J.

I agree.