Ishwardeo Narain Singh vs Sm. Kamta Devi And Ors.

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Not extracted

Decision Date: 25 February, 1953

Coram: S.R. Das

In this matter the Supreme Court of India delivered a judgment on 25 February 1953, authored by Justice S.R. Das. The case was styled Ishwardeo Narain Singh versus Smt. Kamta Devi and others. The judgment set out the facts concerning the death of Jagdishwar Prasad Singh, the son of Sripat Narain Singh by his first wife, and the subsequent dispute over his testamentary dispositions.

Jagdishwar Prasad Singh died on 18 August 1934 leaving a minor daughter, Smt. Kamta Devi, as his only surviving child. The testator’s wife had died before him and he never entered into a second marriage. It was alleged that on 18 December 1930 the testator executed a last will and testament. The will was purported to have been attested by two witnesses: Mr. Sahdeo Singh, an advocate practising at Ghazipur, and the late Mr. Rameshwar Lal, who served as an Honorary Magistrate of Ghazipur. By the terms of the will the testator appointed his step-brother, Ishwardeo Narain Singh, as executor. He directed that the entire fixed-rate tenancy situated in the village of Billahri be sold and that the sale proceeds be applied to the expenses of his daughter’s marriage. He further ordered that any income generated by the tenancy before its sale be accumulated and likewise applied to the maintenance and marriage expenses of his daughter. The testator also provided that after his death a grove should be planted on certain lands in the village of Kundesar, that a temple be constructed in that grove, and that an idol of Sri Thakurji be installed therein. He directed that all Zamindari rights, together with the grove, the “katcha” properties and the Zamindari share in the villages specified in the will, be dedicated to Thakurji, with the income therefrom to be spent on the rag, bhog, puja, construction and repair of the Thakur Bari. Additionally, he appointed his step-brother Ishwardeo Narain Singh as trustee and manager of the Thakur Bari and of the property dedicated to Thakurji.

On 29 October 1934 Ishwardeo Narain Singh filed a petition before the District Judge of Ghazipur seeking probate of the will in his favour. At the foot of the petition the late witness Rameshwar Lal, one of the attesting witnesses, affirmed that he had been present when the testator signed the document. The estate was valued at three thousand rupees. An objection to the probate application was raised on behalf of Smt. Kamta Devi, the testator’s daughter. During the trial, evidence was led by the remaining attesting witness, Mr. Sahdeo Singh, who testified that the will had been duly executed and that the testator possessed testamentary capacity. The second attesting witness, Mr. Rameshwar Lal, was also called; however, his cross-examination could not be completed because he died before that stage, and consequently his testimony could not be admitted. The trial court concluded that the will had indeed been duly executed and that the testator was of sound disposing mind. Nevertheless, the court held that the disposition in the will in favour of Thakurji was void for

In the proceedings before the learned District Judge of Ghazipur, the judge relied upon the decision in Phundan Lal v. Arya Prithi Nidhi Sabha, reported in 33 All 793 (A). Applying that precedent, the judge concluded that the testament presented by the petitioner failed to express any definite intention. Accordingly, the judge held that the document did not satisfy the definition of a will contained in Section 2(h) of the Indian Succession Act. Based on that conclusion, the judge rejected the petitioner’s application for probate. The petitioner then appealed the decision to the High Court. The High Court examined the matter and held that the prosecution had not established the due execution of the will. In addition, the High Court agreed that the will was void for uncertainty. Relying on those two grounds, the High Court affirmed the order of the trial court and dismissed the appeal. Subsequently, the petitioner sought leave to appeal to the Privy Council from the High Court, but that application was refused. Thereafter, the petitioner applied directly to the Privy Council and was granted special leave to appeal. The matter was transferred to the present Court, and the appeal is now before this Court for hearing.

The Court observed that the ground for rejecting the probate application on the basis that the bequest to Thakurji was void for uncertainty could not be sustained by any legal principle, and the counsel representing the respondent did not raise that ground before the Court. The Court explained that the jurisdiction of a probate court is limited to determining whether the document offered as the deceased’s last will and testament was executed and attested in accordance with the law and whether, at the time of execution, the testator possessed a sound and disposing mind. The substantive validity of any particular devise or bequest is not within the scope of probate proceedings. The Court expressed surprise that both the trial judge and the High Court had overlooked this elementary principle of law. Since the respondent’s counsel did not press the argument that the probate court should consider the alleged uncertainty of the gift, the Court found no further need to elaborate on that point. Accordingly, the petition for probate could not be refused on the ground that the specific gift to Thakurji was uncertain, because the probate jurisdiction did not extend to adjudicating the substantive adequacy of that gift. The Court therefore concluded that the argument raised by the petitioner concerning uncertainty of the bequest was misplaced and required no further judicial consideration.

The Court then turned to the other ground relied upon by the High Court, namely the alleged failure to prove the due execution of the will. At trial, the judge had the sole attesting witness before him and was satisfied that the witness’s evidence could not be casually discarded and could be safely relied upon as correct. In contrast, the High Court held that the due execution of the will had not been established and that the testimony of the sole attesting witness, Sahdeo Singh, could not be accepted because of the surrounding circumstances. The first circumstance identified by the High Court was that the will was described as an “unnatural” will. The Court noted the factual matrix: the testator had no male issue, possessed only a minor daughter, and his wife had predeceased him. He had not entered into a second marriage. By the terms of his will, he allocated a specified portion of his estate for the marriage of his daughter and bequeathed the remainder of his property to Thakurji. The Court found nothing in these provisions to render the will unnatural or non-officious. The High Court further relied upon the fact that the will had not been registered or deposited with the District Registrar. The Court stated that there is nothing in law which requires the

It was observed that the law does not require a will to be registered, and in fact the great majority of wills are never registered. Accordingly, the Court held that drawing any inference that a will is not genuine merely because it has not been registered is wholly unwarranted. The second ground raised against the genuineness of the will was that the entire property appeared to have been dedicated to a private charity and that, although the will was executed in 1930, the testator had made no attempt between that date and his death in 1934 to erect a temple or install a deity. The Court found this characterization inaccurate, noting that the will actually made a specific provision for the marriage of the testator’s only daughter, and therefore the whole estate could not be said to have been devoted to charity. Moreover, the Court recognised that there could be many legitimate reasons why the testator did not build a temple during his lifetime, and that the absence of such construction did not, by itself, cast doubt on the validity of the testamentary instrument.

The Court also rejected the argument that the testimony of the attesting witness, Sahdeo Singh, should be dismissed because he was an advocate and a friend of the elder brother of the testator, who was himself a lawyer. It was noted that Sahdeo Singh paid land revenue of more than Rs 4,000 per year, was a practising advocate, and had acted for the testator in one or two appeals. The estate in question was modest, valued at only Rs 3,000, and the Court found it implausible that a respectable man of Sahdeo Singh’s standing would collude with the step-brothers of the testator to produce a forged will for such a small property. The Court further addressed allegations that the testator was not on good terms with his father and step-brothers. While the will mentioned a past disagreement, it also recorded that the disputes were resolved after the death of the step-mother. Documentary evidence showed that the testator and his father had filed a joint written statement in a suit, that the testator signed an application for the execution of a decree obtained by his father acting as general agent, and that, despite a separation, the testator, his father and the step-brothers paid land revenue jointly. Consequently, there was nothing improbable about the family disagreements being settled, nor about the testator appointing one of his step-brothers as executor. It was also established that the step-brothers had married the minor daughter of the testator into a well-to-do family. Taking all these circumstances into consideration, the Court concluded that the High Court was not justified in adopting a view contrary to that of the District Judge, who had found Sahdeo Singh’s evidence credible after hearing him in the witness box. The result,

In this case the Court concluded that the appeal filed by the petitioner should be allowed. Accordingly the Court ordered that a probate be issued in favour of the petitioner, thereby granting the petitioner the legal authority sought through the probate process. The Court further directed that the petitioner be awarded costs incurred in all courts that were involved in the proceedings, and that the petitioner also receive an award of costs specifically arising from this appeal. By making these orders, the Court intended that the petitioner recover all expenses associated with the litigation and the appeal, ensuring that the petitioner would not bear the financial burden of the procedural and substantive stages that had been pursued in the various courts. The direction to issue probate to the petitioner and to grant comprehensive cost relief therefore constituted the final relief granted by the Court in response to the appellant’s request for redress.