Janardan Govind Gore vs Narayan Bhaskar Gore

Kania, J.—This petition gives rise to an interesting question of law which does not seem to be covered by any authority in India. The question is whether evidence is admissible to show that, having regard to the intention of the testator as expressed in the will, the name "K.N. Godbole" applied to "K.G. Godbole." In the affidavit filed in support of the caveat it was alleged by the caveators that in the will, the deceased, by his own hand, had altered the letter "N" into "G" and that alteration was made before other alterations were made by him in the will, which were duly initialled.

This particular alteration in question has not been initialled by the deceased.

On behalf of the plaintiffs it is contended that oral evidence is permissible only u/s 80 of the Indian Succession Act and unless the case came within that section no oral evidence should be allowed to be led. On the other hand it is alleged on behalf of the defendants that Sections 80 and 81 are not exhaustive. In this particular case the evidence which is proposed to be led would show that the only friend of the deceased who could answer to the name of "K.N. Godbole" was defendant No. 2, "K.G. Godbole" and the initial "N" was written through mistake in the will for "G". In support of that contention the decision of Charter v. Charter (1874) L.R. 7 H.L. 364 has been relied upon. There are numerous decisions of English Courts following that and in particular In re Twohill (1879) L.R. 3 Eq. 21 supports the defendants'' contention. Both sides have tried to look for an Indian authority but have not been able to find the same.

In my opinion the case is not clearly covered by the express terms used in Section 80 and the case does not fall u/s 81. The point, therefore, must be decided on the principles of justice, equity and good conscience which is applicable to the Presidency-towns. That expression is held to mean the principle of English law, apart from the English statutes. On that footing the defendants'' contention should prevail and evidence should be allowed to be led. I should say at once that for allowing such evidence" the English authorities show that the proof of intention is to be found in the will and the evidence of intention cannot be led from outside. The intention being proved by the terms of the will, oral evidence would be allowed to show circumstances, habits and the state of the testator''s family. That would include the names of the testator''s friends, as in the present case the appointment of the executors (apart from his brother) is of his friends as mentioned in the will. Under the circumstances of this'' case I, therefore, hold that evidence is admissible to show what friend of the deceased was intended by him by using the name "K.N. Godbole.