Raghubar Dyal vs Ram Rakhan Lall and another

This is an appeal from an order made by the District Judge of Mozufferpore granting letters of administration with a copy of the Will annexed. The first question before the learned Judge was, whether the document was of a testamentary nature. No objection on that score has been pressed before us.

The second objection was that the Will itself was not attested according to law. As far as the general Will is concerned, there is no objection to the attestation, because there is some evidence to show that the witnesses signed in the presence of the testator. But there is a valid objection put forward on another matter. There are certain alterations in the Will. Having regard to the terms of section 58 of the Indian Succession Act, which is made applicable to Hindus by the Hindu Wills Act, those alterations should have been attested in the same way as Wills are attested, that is to say, by two persons signing in the presence of the testator. It seems that they have not been attested by anyone. They were signed by the testator himself alone.

The alterations were admittedly made when the Registrar came to register the Will, but the Register himself has not attested them.

It follows, we think, that we must alter the letters of administration and direct them to be issued, not with a copy of the Will but with a copy of the Will without the alterations, annexed. This does not make a very substantial difference, and makes no difference at all to the Appellant before us. There remains only the question of costs. The Appellants put forward before the Court below a substantive case of a false will being got up by conspiracy and they said that the testator was utterly unable to sign the Will. That is not a case where a caveat or is entitled to costs. Under the circumstances, we think, that the right order is to leave the order of the lower Court as to costs alone, and to give the Respondents their costs of this appeal out of the estate, and we order accordingly. We make no order as to the Appellants'' costs of this appeal.