Punjab-Haryana High Court
Smt. Bishan Devi Khanna W/O D.C. Khanna vs Pirthi Singh, Dhillon S/O S. Jai Singh on 25 July, 1962
JUDGMENT
1. This is a petition for the grant of Letters of Administration with the will annexed under Sections 233 and 276, read with Section 300, of the Indian Succession Act. This matter raises a number of important questions of law which call for detailed examination.
2. The petition has been made in the following circumstances.
3. Col. Mahabir Sihgh Dhillon, who had also been serving temporarily as a Brigadier, and who was a Jat Sikh, was married to Miss Urmila Khanna, a Khatri by anand form of marriage on 17th April, 1943. On her marriage, Urmila was named Sukhbir Kaur. He was at that time a Major in the Army: At the time of the marriage, Urmila Khanna wag 21/22 years and her husband was 32/33 years old. In 1950 the husband was made a Brigadier and was posted at Kapurthala. On 16th March, 1950, it is alleged, he made a will at Kapurthala which is in duplicate. One will (Exhibit P. 3) was deposited in the Grindlays Bank, Delhi and was sent there with a covering letter, Exhibit P.1, dated 20th March, 1950. The other will, which also bears the signatures of the testator, was sent to the Army authorities. This is" marked as Exhibit P.4. The testator had acquired most of his property as a result of his own efforts and the property that came to him from his ancestors is proportionately very small. There was no issue of the marriage. The testator had purchased an area of about 250 acres in Bilaspur, district Rampur, in Uttar Pradesh. He made this land into a farm and had appointed Manoharpal Singh, his nephew, who is the son of Pirthi Singh caveator, to manage it. In 1955, Col. Mahabir Singh Dhillon and his wife visited the farm in the month of November. On the evening of 14th November, 1955, when both husband and wife were returning together to the house, they were shot at and hilled. The gun which is said to have been used belonged to the testator and was kept by Manoharpal Singh, and during the course of investigation, . it was made over by him to the police. On the date of occurrence, Manoharpal Singh had lodged first information report with the police, but the police suspecting him to be the assassin prosecuted him under Section 302 Indian Penal Code. He was tried before the Sessions Judge, but was acquitted as there was not sufficient evidence which positively connected him with the crime. The appeal against the order of acquittal was dismissed by the High Court of Allahabad.
4. The present petition, dated 9th April, 1956, has been made by Smt. Bishan Devi, mother of the testator's wife. On 28th May, 1956, Pirthi Singh, father of Manoharpal Singh, had filed a caveat. On 24th October, 1956, Pirthi Singh filed his detailed reply as caveator objecting to the Letters of Administration being granted to the petitioner. He, however, never claimed that Letters of Administration be granted to him instead. In other words, Pirthi Singh had contended himself by denying the petitioner's claim to the Letters of Administration and had not put in any counter-claim on his behalf.
By his will, the testator had bequeathed all his property, both movable and immovable, whatsoever and wherever, to his wife Mrs. Urmila Dhillon who was appointed as the sole executrix of the will. It was stated in the petition that the entire property barring a small portion of a house and some land in the ancestral village was self-acquired. It is alleged in the petition that the assassin had killed the testator by gunfire, the shots had penetrated his head and brain and had caused instantaneous death. The wife survived her husband and died later. It is also stated that the assassin was Manoharpal Singh and the murder had been abetted by Pirthi Singh, caveator and brother of the testator and the motive was to get the property of the deceased. It is alleged that the will on the death of Col. Mahabir Singh Dhillon became operative and his wife succeeded to the entire property, of the deceased as an absolute owner. Urmila having died before the estate could be administered, the petitioner, her mother, claims the right to administer the property which had become vested in the residuary legatee Mrs. Urmila Dhillon.
It is said that according to Hindu law and on the death of Mrs. Urmila Dhillon, the petitioner, her mother, succeeded to the entire property in preference to the relatives of her deceased husband. Even on the assumption, it was said that the parties were governed by the customary law of Punjab, the property of Mrs. Urmila Dhillon would devolve on the petitioner in preference to her husband's heirs.
Oh these grounds, it was claimed that as the representative of Urmila Dhillon, the petitioner, as her mother, had the same right of administration with the will annexed as her daughter, the deceased executrix. It was also stated that in any care Pirthi Singh, the brother of the testator, was excluded from succession to the estate as he had abetted his son to murder the testator and his wife, and Pirthi Singh's son, Manoharpal Singh, as the actual murderer, was also excluded from inheriting the property of his victims.
5. In the written reply, the caveator admitted that Col. Mahabir Singh and his wife were murdered on 14th November, 1955, but denied that his son or he had any hand in the commission of the murder. The factum and Validity of the will was also denied. It was also contended that the testator had no right to make the will. It was denied, for want of knowledge, that Urmila Dhillon was named Sukhbir Kaur. The allegation that she had survived her husband was not admitted and that the will had not, therefore, become operative. The alleged legacy in her favour thus lapsed and no question arose either of administration of the estate of the deceased or of the petitioner being the representative of Urmila Dhillon.
It was contended that the marriage was performed according to Sikh rites and the husband and wife were governed in the matter of succession by the custom of the Sikh Jats and not by the Hindu law and that the estate had devolved on the caveator in accordance with the rule of custom. It was also said that in any event the property alleged to have been gifted to Urmila by virtue of the alleged will had reverted to the heirs of the donor. It was said that neither the caveat for nor his son Manoharpal Singh was excluded from succeeding to the estate of Col. Mahabir Singh Dhillon or his wife as neither of them was instrumental in bringing about their death by assassination.
5A. The following issues were framed -
1. Whether the alleged will has been duly executed by the late Col. M.S. Dhillon?
2. Whether Mrs. Urmila Dhillon survived her husband Col. M.S. Dhillon?
3. Is the petitioner entitled to Letters of Administration with the will annexed under Section 233 of the Indian Succession Act?
4. Relief.
I may deal with these issues ad seriatim.
6. The first question- is whether the will had been executed in accordance with the requirements of Section 63 of the Indian Succession Act, One of the points that has been canvassed before this Court is that the requirements of Section 63 (b) and (c) have not been satisfied. Section 63(b) requires that every testator shall execute his will so that the signature or mark of the testator shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a will.
The will is a brief document and it is reproduced below in extenso --
Will bequeathing all property to one person.
This is the last will and testament of the 'Brig. Mahabir Singh Dhillon A-1-173 of Bahrain Sarishta Distt. Jullundur'. I hereby revoke all wills and testamentary dispositions by me heretofore made.
I hereby give and bequeath to my wife 'Mrs. Urmila Dhillon her heirs,' executors or administrators, for her use and benefit, absolutely and for ever all my property, both moveable and immoveable, whatsoever, wheresoever and of what nature and quality soever: and I hereby appoint her, the said 'Mrs. Urmila Dhillon' sole executrix of this my will.
In witness whereof, I the said 'Brig. M.S. Dhillon' have hereto signed (or, put my signature, or set my hand) at 'Kapurthala,' this 16th day of 'March, 1950,' Signed by the said 'M.S. Dhillon' in the presence of us, present at the same time, who in his presence and in the presence of each other, sign as witnesses hereto.
(Signature of Sd. Kuldip Singh Chadha
witnesses) Major.
Sd. B. P. Sharma Cap.
This will is a typed document, except for the words
underlined (here in ' ') above, which are in the
handwriting of the testator. The signatures of the
testator Col. Mahabir Singh Dhillon have been
proved by a number of witnesses as to whose re
liability no reasonable doubt can be cast. P. W.
1, Jai Narain Sharma, has stated that he had
been in the service of the Grindleys Bank since
1944 and had many occasions to see Col. Dhillon
write and is conversant with his writing and signatures and he has identified the signatures of Col. Dhillon on letter Exhibit P. 1 which was addressed to the Bank with a request for safa custody of the attached will. He has identified the signatures of the testator on the Security Register, Exhibit P. 2, which shows the receipt of the will of the testator at serial No. 1477 enter ed in the Security Register on 24th March 1950.
His signatures on the will Exhibit P. 3 have also been proved by this witness as also on Exhibit P. 4.
The next witness in this connection is P. W. 1 6, Maj. Kuldip Singh Chadha, who has acknowledged his signatures on the two duplicate wills, Exhibits P. 3 and P. 4, as an attesting witness. He stated that he appended his signatures on the will at the request of the testator who had come to his office with Exhibits P. 3 and P. 4 and told him that the document was his will and had asked him to attest it as a witness. This witness stated that he was in a position to identify the signatures and handwriting of the testator. In cross-examination he deposed that the testator had not signed the will in his presence, but the testator had told him that it was his will and had desired him to attest it.
The second attesting witness is Maj. B.P. Sharma, He made a statement, on commission. He stated that he knew the testator and had served under him as a Staff Officer at Ferozepore, Kapurthala and Yole for over two years and knew his handwriting and signatures. When he was Brigadier at Kapurthala, the testator had asked him to attest the wills. Exhibits P. 3 and P. 4, which he accordingly did in the presence of the testator and Maj. Kuldip Singh Chadha. The testator had acknowledged before this witness that the will was his and he also acknowledged his signatures. Nothing has been elicited from these witnesses in cross-examination which would go to discredit their testimony. Their statements along with the extents of the will and letter Exhibit P. 1 bear sufficient proof of animus testandi on the part of the testator and animus attestandi on the part of the two attesting witnesses. Besides the attesting witnesses, P. W. 7, Kr. Shamsher Singh. Inspector General of Police has deposed that the testator was a close friend of his and the writings in Exhibits P.3 and P. 4 bear the testator's signatures.
7. One criticism that has been, levelled on the execution of the will is that at the end it does not bear the signatures of the testator and, therefore. Section 63(b) has been contravened. At three places in the will the testator has signed his own name.
This matter came up for consideration in In The Goods of R. Porthouse ILR 24 Cal 784, where the facts were not dissimilar. In that case a testator had died leaving as his will a printed form of will imperfectly filled in and he omitted to insert his name and description at the head of the document and to append his signature therefor. He had, however, written his name in the attestation clause and completed the disposition clause bequeathing all his property to his wife and appointing her sole executrix. It was held that this was sufficient and the will was entitled to be admitted to probate.
In Amarendra Nath v. Kashi Nath, ILR 27 Cal 169 the testator had admitted to the attesting witnesses that the paper which they were attesting was his last will. This was Considered a sufficient acknowledgment of testator's signature to his will even though the witnesses did not see him sign it or observed any signature to the paper which they had attested. It is now a settled principle of law that a will is not rendered invalid by the circumstance that the signature is placed, among the words of the testamentary or of the of attestation if the Court is satisfied that the deceased intended by signing his name in the attestation clause to execute his will (vide In The Goods of, Casmore, (1869) LR 1 P and D 653). Under Section 63(c) an acknowledgement of execution by the testator followed by attestation of the will in his presence is a sufficient attestation. Section 63 gives certain alternatives and it is sufficient if conformity to one of the alternatives is proved. An acknowledgement by the testor may be either express of implied, as, where the attesting witness is requested by the testator to subscribe the will. The acknowledgment may assume the form of express words or conduct or both, provided, they unequivocally prove an acknowledgment on the part of the testator. Where a testator asks a person to attest his will, it is a reasonable inference that he was admitting that the will had been executed by him, (vide Ganshamadoss Narayandoss v. Gulab Bi Bai, AIR 1927 Mad 1054 (FB), and Ganshamdoss Narayandoss v. Saraswathi Bai, AIR 1925 Mad 861).
The Supreme Court in H. Venkatachala Iyengar v. B.N. Thimmajamma, 1959-2 SC 1 at p. 17 : (AIR 1959 SC 443 at pp. 451-452), observed that the propounder of the will would be called upon to show, by satisfactory evidence, that the will was signed by the testator, that the testator at the relevant time was in a sound and disposing state of mind, that he understood the nature and effect of the dispute and put his signatures to the document of his own free will. It remarked.
"Ordinarily when the evidence adduced in support of the will is disinterested, satisfactory and sufficient to prove the sound and disposing state of the testator's mind and his signature as required, by, law, Courts would be justified in making a finding in favour of the propounder. In other words, the onus on the propounder can be taken to be discharged on proof of the essential facts just indicated."
It is a rule of reasonable probability that all things are presumed to have been done regularly and with due formality until the contrary is proved. -- omnia praesumuntur rite et solenniter esse acta donee probetur in contrarium -- and has been recognised -in a large number of cases. Reference among others, may be made to In The Goods of Mann, 1942 P. 146.
What had happened in this case was that a testatrix bad written out her will on a sheet of paper in the presence of one of the attesting witnesses. The other attesting witness came while she was still writing the later part of the paper. After completing the paper, she wrote on the envelope the words "the last will and testament of Jane Catherine Mann". She then told the witnesses that the documents which she had written were her will and requested them to sign their names as witnesses thereto which they did. After the witnesses had signed the document the testatrix placed it in the envelope but she did not place any signature on the document. During his last illness when her executrix visited her at the request of the testatrix, a further envelope and sealing wax was obtained in which the will and the envelope were put and the cover of the envelope was sealed and made over to the executrix. The will actually was never signed by her. After taking into consideration the circumstances of the case, the probate was decreed and the signature on the envelope was accepted as the signature on the will.
8. I cannot accept the contention of the learned counsel for the caveator that the will was neither executed nor signed as required by Section 63. The will bore the testator's name at three places in his own handwriting and the document cannot be said to be inchoate and, therefore, not executed.
9. Both on questions of fact and on law, I feel satisfied that the signatures of the testator have been proved and that the will has been validly executed in accordance with the requirements of Section 63 of the Indian Succession Act. The testator was in a disposing mind and had executed the will animo testandi. The first issue is, therefore, decided in favour of the petitioner.
10-14. I may now proceed to the second issue. Under this issue the counsel for the parties have taken me through evidence and have also addressed legal arguments on the question whether the matter as to who survived whom should be decided on the basis of presumption of law or on the rule of burden of proof. There is no direct evidence pointing out who died first. This Court has been desired to draw inferences from the nature of the injuries and. from the opinion given by a number of medical, experts. Autopsy on lead bodies of the testator and his wife was performed by P. W. 3, Dr. J. N. Mathur, Assistant Surgeon, Hardoi (Uttar Pradesh). He was at the relevant time Assistant Surgeon at Rampur. (His Lordship considered the autopsy report on the bodies of Col. and Mrs. Dhillon and the evidence of other medical experts and proceeded).
15. The view expressed by the medical witnesses referred to above clearly indicates that in all probability Mrs. Dhillon survived her husband and the latter had died earlier. There are certain differences in their view but their general conclusion is as . stated above.
16. Mr. Sethi had also drawn my attention to certain passages in Taylor's Principles and Practice of Medical Jurisprudence, nth Ed. Vol. 1, At p. 267 it is remarked :
" "When the cavities of the heart are extensively torn or penetrated, death is likely to be immediate, but persons who have sustained wounds of a lesser caliber have frequently lived sufficiently long to exercise powers of volition and locomotion."
From p. 268 the following passage may be reproduced :
"In cases where the ventricle wall is not completely perforated or where the penetration is lanting, thin, and therefore tends to become 'valvular' -- or even to close upon contraction of the muscle, little or no blood probably escapes from the heart in the first instance, but it may afterwards continue to ooze gently, later reaching a fatal quantity. It must not, therefore, be supposed when a person is found dead with a wound of the heart, attended with abundant haemorrhage, either that the flow of blood took place in an instant or that the person died immediately and was utterly incapable of exercising any voluntary power. Only one condition will justify a supposition of this kind; namely, when the cavities of the heart are laid widely open."
At p. 324, dealing with penetrating wounds of the heart, it is observed :
"When the wound is small and the weapon penetrates into the cavities of the heart obliquely, life may be prolonged for a considerable period, and numerous cases are on record in which such wounds have healed, or the patients have recovered as a consequence of immediate surgical repair."
17. The caveator produced R. W. 1, Dr. V.K. Saini, Assistant Professor of Cardio Thoracic Surgery, Medical College, Amritsar. This witness is a graduate of Punjab University and he received education in Canada and U. S. A. He is a specialist in the surgery of heart and lungs. He gave his view that injuries Nos. 1, 2 and 6, on Col. Dhillon were neither individually nor collectively so fatal as to cause instantaneous death of the deceased. He then said, "injury No. 3, however, was sufficient to cause instantaneous death as it involved injury of heart and blood vessels." Referring to injuries caused to Mrs. Dhillon, he was of the view that "she must have met with instantaneous death after she had been fired at". The reason given by, him was that the absence of blood in the pericardium indicates that death was instantaneous and no time was left for the blood to trickle. He agreed that an injury by itself in the ventricle of the heart does not always cause instantaneous death, He also acted on the assumption that there was one shot which had been fired at Mrs. Dhillon and its effect must have been instantaneous death.
This view of Dr. Saini does not commend itself to me. According to him, the first two injuries were from gunshot fired at a great distance. If that be so, injury No. 7 must have been the result of the firing of gunshot at almost point-blank range. Therefore, there must have been at least two gunshots even if it be assumed that injury No. 3 was a wound of exit. Moreover, his view is contradicted by all the other doctors. Another consideration which has weighed with him is that because the first two injuries were 'paused from a longer range, she must have been injured first and, therefore, died first. This is on the assumption that both were walking abreast when the shot was fired. Even if that be so, the distance of a couple of yards from the point of view of range of firing would not make any material difference to the interval of time between firing of different shots on the two victims. Dr. Saini is on wrong hypotheses when he concludes that because of longer range she was necessarily attacked first. Another factor which led him to arrive at the conclusion that Mrs. Dhillon must have died first was that he was told that the body of Col. Dhillon was found lying over that of his wife.
18. After having considered the evidence of R. W. 1 and the reasoning which weighed with him, I am of the view that the opinion given by a number of medical witnesses produced by the petitioner far outweighs the testimony of Dr. Saini. The reasons given by the witnesses for the petitioner appear to me to be far more cogent. I do not think that there was justification for concluding that all the injuries on Mrs. Dhillon had been the result of one gunshot fired at her. Dr. Saini has erroneously not taken into consideration the important fact that injury No. 3 sustained by Col. Dhillon was from a very close range and the other two injuries were from a distance of ten to twelve yards. In this case I am impressed by the fact that injury No. 3 on the testator was of far more dangerous a character and was capable of extinguishing life instantaneously than the injuries; on Mrs. Dhillon which were of a comparatively less serious character and she would have lingered on for some time before expiring. Her injuries as compared to those of her husband would have enabled her to outlive him. I am, therefore, led to the conclusion that the wife had survived the husband and her end was subsequent to that of her husband.
19. Before passing on to the next point I may here notice an argument raised on the basis of the note that the body of Col. Dhillon was found lying on that of his wife when P. W. 4, the. Station House Officer, appeared on the scene. According to his testimony as P. W. 4 "the dead bodies were adjacent to each other". There is, however, a note No. 6, in the plan prepared by him wherein it is stated that the head of the husband was on the legs of the wife. This fact does not furnish sufficient ground for concluding that the husband had died after his wife. The moment of death cannot be determined by this posture of the two bodies. This might have been the position of the two bodies before life oozed out, or, this might have been the result of some spasms or involuntary convulsive movement of the body in death agony. Moreover, on receiving respective injuries, both must have fallen down and she could have lived some time longer even after she had fallen down. To my mind, the circumstance that the head of Col. Dhillon was on the legs of his wife when the two bodies were seen does not show that she predeceased him. Basing my conclusion on the weight of the evidence, the reasonable probability is in favour of Col. Dhillon having died first and his wife's end coming some time later."
20. On the record of this case, the issue of survivorship is determinate and there is sufficient evidence to support a finding of survivorship. Sufficient material has been placed on the record which makes the conclusion in favour of simultaneous deaths occurring at the same moment, or, the wife predeceasing the husband, improbable, without resort to artificial rule of presumption. There are facts and circumstances which throw considerable light upon the mooted question as to survivorship and which tend to show that the wife survived her husband. . In this case, the medical evidence of a number of highly qualified surgeons has been a valuable adjunct for deter-mining this issue in favour of survivorship of Urmila Dhillon.
21. I may now take up the alternative argument and examine it on the basis that it is not known as to who died first. There is a sharp difference between the two views which, for want of better terminology, may be designated as the common law approach and the continental approach. Assuming it to be tbe case of commorientes, the question is what is the rule of law which is to prevail. Commorientes are persons who perish at the same time in consequence of the same calamity. These are tricky cases which posed trying problems to the jurists, and their complexities have not in any way abated despite the enunciation of several principles not always all-embracing. Simultaneous deaths may occur in consequence of variety of circumstances, and usually they are the result of shipwrecks, collisions, bomb explosions, conflagrations, earthquakes, fatalities during war, and other similar calamities, involving a number of persons. On the priority in point of time of the death of one over the other commorientes regardless of brevity of interval between deaths, valuable rights of third parties very often depend.
22. Common law does not Solve the problem, by taking shelter behind any artificial rule of presumption, for determining as to who out of the several, outlived the rest when struck by common disaster. Common law answered the question posed by resort to the rule of burden of proof. Which of the two commorientes survived the other, had to be proved by the claimant who sought to establish his right. The matter of survival, in all cases, was treated as a question of fact. The Courts may draw their own deductions by taking into consideration the circumstances of age, sex or physical condition of the person who perished and also examine the minutiae of the disaster and the manner of deaths of the parties, or, take assistance from other circumstances tending to show who outlived whom. Facts might be examined which might suggest as to who was best able to struggle for life as against others.
23. Broughton v. Randall, (1596) 78 ER 752, is the earliest case in which the question of survivorship was raised in consequence of synchronous deaths occurring in 1596 in the following circumstances. The father and his son were both hanged from the same cart. They were joint tenants in a certain real estate and the widow of one of them claimed and established her dower right on the ground that her husband lived longest. The determining piece of evidence was that one victim was noticed to move his feet or shake his legs after the other's muscles were still in death.
24. The rule which has found support in England and in the U. S. A. with the exception of Louisiana and California States is that where the death of two or more persons has resulted from a common disaster the case must be decided upon its own peculiar facts and circumstances. If there be no adequate evidence to support a finding of survivorship, the matter is treated as not being determinable. No presumption is raised from considerations of age or sex, and the law neither presumes that the two died at the same instance nor that one survived the other. This conclusion is reached because there is no evidence and the person asserting survivorship has failed to discharge the onus probandi, and is thus unable to support his claim and for failure to substantiate the same he must necessarily fail. In short, the question of survivorship is to be proved like any other question of fact, that is, by the party asserting it. If there be evidence or circumstances, the Court or the jury trying the facts may draw its own conclusions by examining the facts which throw light upon the situation and take into consideration the probabilities of the case. This rule is not without its hardships, as there rarely is any direct evidence when a common calamity overtakes the persons involved and all of whom perish together. Direct proof is seldom forthcoming and the burden becomes so onerous that it can hardly ever be discharged. Thus the solution by resort to this rule of evidence can hardly be considered satisfactory,
25. The continental jurists endeavoured to solve the difficulty by recourse to artificial presumptions where the circumstances connected with deaths were only unknown. These presumptions, though artificial and arbitrary, are based oh probabilities of survivorship resulting from physical strength, age and sex. Some of these presumptions to which the jurists in Rome resorted in the event of a common catastrophe resulting in the deaths of several persons, may be noticed. They are, cum bello pater cum filio periisset--when in war father and son die together--uxor simul cum marito decesserit -- husband and wife die together. The solution for this dilemma was founded by the Roman lawyers on what may be called biological considerations. Thus a grown-up son was presumed to have survived his parent -- cum explorari non possit uter prior extinctus sit, humanius est credere filium diuthis vixisse. This means that when it is not possible to determine who between the father and the son died first, it is more natural to believe that the son survived the father. Similarly, Code Napoleon provided in Article 720 :
"Si plusieurs personoes respectivement appellees a la succession lune de lautre, perissent dans un meme evenement, sans quon puisse reconnaitre laquelle est decedee premiere, la presomption de survie est determinee par les circonstances du fait, et, a leur defaut par la force de lage et du sexe."
The above passage may be rendered thus :
"If several persona who are respectively to succeed One to the other, perish in the same happening without one's knowing who died first, the presumption of survival is determined by the circumstances of the case and in their absence by considering their age and sex."
The presumptions which found favour with the continental jurists, receiving their inspiration from ancient Roman jurists, were considerably elaborated, ostensibly resting on natural probabilities.
The French Code assumed that of those under the age of 15, the eldest survived, and in the case of those above 60 the youngest survived. If one of those parties were under the age of 15 and the other above the age of 60, the former was presumed to have survived. If all were between 15 and 60, the males, were presumed to have been the survivors if the ages were equal or the difference in ages not greater than one year; in other cases the youngest was presumed to be the survivor (vide Code Civil, Sections 720, 721 and 722 referred to in Taylor on Evidence, Vol. I, 12th Ed. pp. 182,
183). The Civil Codes in other continental countries and in some States of America are modelled on Roman pattern, e.g. Civil Codes of Germany, Austria, Italy, Portugal, Spain, etc. (vide Sherman's Roman Law in the Modern World, Vol. II, p. 42, II Ed.)
26. Mahomedan Law, in the case of persons perishing together, is stated thus by Baillie (Digest of Mahommedan Law, Part 1, II Ed. 1875, Vol. II, p. 714) :
"Where several persons have been drowned or burnt together and it is not known which of them died first, 'we' treat them all as having died together. The property of each will accordingly go to his own heirs, and none of them can be heir to another, unless it is known in what order they died, when those who died last will inherit to those who died before them. And the rule is the same when several are killed together by the falling of a wall or in the field of battle, and it is not known which of them died first."
27. The arbitrary rules for determining the relative time of death of persons perishing at the same catastrophe were never favoured by courts following the common law and declined to adopt the conjectural modes of determining a factual matter which, from its very nature, often remained uncertain by reason of absence of direct evidence. Neither of these two views has much logic to commend it. Both the doctrines illustrate a method of arriving at a conclusion but without any attempt to determine its correctness, and present a veritable Gordian knot which both the systems have managed to cut in twain but have failed to untie.
28. The state of law in England has undergone a change after 1925. Formerly, where the people in immediate succession to each other, whether intestate or testamentary, perished by the same calamity, the Court refused to presume that one survived the other or that they died at the same time. Burden of proof lay on the party asserting survivorship, concurrent death or predecease. Where a testator and his residuary legatee died in a common disaster and there was no evidence of survivorship, if there was no executor, the testator's next of kin was preferred for grant of administration with the will annexed.
29. This state of affairs underwent a change after 31st December 1925, by virtue of Law of Property Act, 1925, Sections 184 and 209(2). The law now is that if two or more persons have died in circumstances rendering it uncertain which of them survived the other or others, such deaths are to be presumed to have occurred in the order of seniority, and accordingly the younger is deemed to have survived the elder even if it appears that the deaths were simultaneous.
This matter was examined in Hickman v.
Peacey, 1945-2 All ER 215. The facts in that case were that in September 1945, a bomb fell upon a house and exploded in the basement.
There were five people sheltering in an air-raid shelter in the basement and they were all killed.
They were (a) the occupier of the house, (b) her daughter, (c) the house-keeper of two brothers who were the two testators the first being aged 73 and the second testator was his brother aged 66. The first testator had left a legacy to the house-keeper and he left the residue equally among his bro there "surviving at the date of my decease". The second testator had left money to each of his executors of whom the first testator was one and other pecuniary legacies to the house-keeper, the occupier of the house and the residue equally to three named legatees including the first testator.
The question for determination was whether the deaths occurred in the circumstances rendering it uncertain which of them survived the other or others so as to bring into operation Section 184 of the Property Act, 1925. It was held that in view of the uncertainty which of the deceased survived the other or others, the presumption under Section 184 should be applied and the elder of the deceased brothers must be deemed to have died first. Section 184 runs as under :
"In all cases where, after the commencement of this Act, two or more persons have died in circumstances rendering it uncertain which of them survived the other or others, such deaths shall (subject to any order of the Court), for all purposes affecting the title to property, be presumed to have occurred in order of seniority, and accordingly the younger shall be deemed to have survived the elder."
The state of mind of the Court was that it really could not answer the question. It might be that they had died one after the other or it might be that they all died at the same moment, but in any case the Court could not say for certain which, if any, was the survivor. In such a state of mind, it was observed by Lord Macmillan :
"My opinion accordingly is that the statutory presumption applies and that the appeal should be allowed."
In Re Lindop; Lee-Barber v. Reynolds, 1942-2 All ER 46, the facts were that a bomb dropped during an air-raid, completely demolished a house and the occupants, a man and his wife, were killed. It was uncertain who died first. There was evidence in the form of affidavits including medical evidence that the deaths had occurred "instantaneously and simultaneously." The husband who was elder than his wife had bequeathed the residue of his estate to his wife, and the wife had bequeathed her residuary estate to her mother or her brothers and sisters and a legacy to her husband. It was held that the presumption under Section 184 of the Law of Property Act, 1925, as td the order of such deaths, was a rebuttable presumption and the Court was entitled to receive evidence on the subject which might displace the statutory presumption. It was found that the evidence was insufficient to rebut the statutory presumption, and, applying it, it was held that the wife being the younger must be presumed to have survived the husband, and the estates were distributed accordingly.
Reference may also be made to Re Bate; Cillingworth v. Bate, 1947-2 All ER 418, in which Jenkins, J., observed that if the circumstances left it uncertain, which of them survived the other, the presumption prescribed by the Law of Property Act, 1925, Section 184, would apply and the deaths would have to be presumed to have occurred in order of seniority; the younger, that is, the wife, being deemed to have survived the elder, that is, the husband.
30. So far as law in India is concerned, Mr. Daulat Ram Manchanda has cited, in support of the rule of onus probandi, K.S. Agha Mir Ahmad Shah v. Mudassir, Shah, AIR 1944 PC 100. There, two individuals had perished in a common calamity, the Quetta earthquake. In the absence of evidence, the Privy Council refused to draw a presumption that the younger survived the alder as such a question was, from first to last, a pure question of fact, the onus probandi lying on the party who asserted the affirmative. Mr. Daulat Ram has also relied upon three other decisions. In Digendra Kumar Roy v. Kuti Mian, AIR 1944 Cal 132, there were multiple deaths in a boat disaster. Biswas J., expressed the view that there was no presumption of law arising from age or sex as to survivorship among persons whose death was occasioned by one and the same cause. There was even no presumption that all died at the same time. The question being one of fact depending wholly on evidence, if survivorship was not established, the matter had to be determined by applying the rule regarding the burden of proof. In Mt. Neksi Kuar v. Mt. Jwala Kuar, AIR 1934 Oudh 101, two brothers had died in a common catastrophe and it was not known who died first. It was held that there was no presumption and that the plaintiff must prove his assertion. Sm. Gopibai Mulchand v. Chuhurmal Mulchand, AIR 1939 Sind 234, was a case where mother and daughter met their death in Quetta earthquake; and in the absence of reliable evidence to show which of the two had died first, no presumpton could be drawn in law that the elder died before the younger. Mr. Daulat Ram Manchanda contends that on 14th November, 1955, when Col. Dhillon and his wife Mrs. Urmila Dhillon died, the law of India was as laid down in the four authorities cited above.
31. In one case, however, Y.N. Kulkarni v. Laxmibai Kesheo, AIR 1922 Bom 347, Macleod C. J., gave importance to the fact that out of the deceased, the younger man was 18 years' old and the other was aged 60. The learned Chief Justice said :
".....when the evidence on the question, who died first, is so evenly balanced, I think we are entitled to say that the probabilities are in favour of the younger man surviving the elder." The reply of Mr. Madan Lal Sethi, learned counsel for the petitioner, to the above decisions is that they no longer lay down the correct law in view of the change brought about by Section 21 of the Hindu Succession Act, which reads as under:
"21. Where two persons have died in circumstances rendering it uncertain whether either of them, and if so which survived the other, then, for all purposes affecting succession to property, it shall be presumed, until the contrary if proved, that the younger survived the elder."
To all intents and purposes, Section 21 is a provision similar to Section 184 of the Law of Property Act, 1925, of England, with one noticeable omission that the words "subject to any order of the Court" occurring in the English statute have not been reproduced in the Hindu Succession Act. Section 21 adopts the rule of artificial presumption somewhat similar to commorientes of the Civil Law, but omitting the minutiea.
32. Learned counsel for the caveator raises two objections. He says that Hindu Succession Act, 1956, became law after the date of the deaths of the testator and his wife, and it could not be given retrospective effect. This provision lays down a rule of evidence and introduces a statutory presumption of a rebuttable character in cases of simultaneous deaths. The law of evidence is a law of procedure and is retrospective, vide Secy. of State for India v. Jankiramayya, 29 Mad LJ 389 (423) : (AIR 1916 Mad 186 at p. 202) (FB), where it was observed :
"Roles of evidence enacted by the Legislature come into force at once and must be fallowed by the Courts in deciding on the rights of parties whatever may have been the previous state of law in regard to the proper presumptions, and burden of proof under particular circumstances."
Similarly, a Division Bench of Allahabad High Court in Paras Ram v. Mt. Mewa Kunwar, AIR 1930 All 561, held that the law of evidence is a law of mere procedure and does not affect substantive rights and since alterations in the form of procedure are always retrospective, unless there is some good reason or other why they should not be, rules of evidence are retrospective in their operation. Reliance was placed on Gardner v. Lucas, (1878) 3 A. C. 582 (603). The above reasoning is persuasive and I would, therefore, hold that Section 21 is to be given retrospective effect.
33. Another objection of Mr. Daulat Ram Manchanda is that Hindu Succession Act is an Act passed to amend and codify the law relating to intestate succession among Hindus whereas the matter which arises in this case relates to testamentary succession. A preamble may furnish a key to open the mind of the legislative draftsman but it often happens that the words of the preamble are narrow, whereas the enacting words are of wide amplitude. The preamble, however, cannot in such cases be referred to for restricting the ordinary meaning which may be ascribed to the enacted part of the legislation. The preamble of the Act no doubt speaks of intestate succession among Hindus, but the Act also deals with testate succession though in the main its field of operation is intestacy. Section 30 provides that any Hindu may dispose of property by will or other testamentary disposition which is capable of being so disposed of by him in accordance with the provisions of the Indian Succession Act, 1925, or any other law for the time being in force and applicable to Hindus, The explanation provides, inter alia, that the interest of a male Hindu in a Mitakshara coparcenary property be deemed to be property capable of being disposed of by a will. In other words, right to dispose of property by will is conferred by the Hindu Succession Act upon a male Hindu in a Mitakshara coparcenary property. The rule of Mitakshara law, which disabled a Hindu coparcener from disposing of by will his undivided coparcenary interest, has been abrogated by Section 30. It cannot, therefore, be said that the Hindu Succession Act exclusively confines itself to intestate succession among Hindus. It recognises testamentary disposition where none existed before, though leaves intact the elaborate provisions of Indian Succession Act, 1925. I cannot persuade myself to construe a provision embodied in Section 21 of the Hindu Succession Act as of a restricted operation not extending to cases of testamentary succession.
34. Even if there had not been adequate evidence to indicate who out of the two deceased had outlived the other, I would, applying the presumption raised under Section 21, hold that Col. Dhillon was survived by Mrs. Urmila Dhillon. While expressing the above view I am aware, that in certain cases certain provisions of the Hindu Succession Act were deemed not to be retrospective, but none of these cases relates to Section 21 (vide Gurmit Singh v. Tara Singh, AIR 1960 Punj 6, Gurdaa Dayaram v. Mst. Prito, AIR 1961 Punj 203 and Hans Raj Basant Ram v. Dhanwant Singh, AIR 1961 Punj 510. These cases, in my view, are distinguishable and, therefore, inapplicable.
35. I may now take up the third issue. Section 233 of the Indian Succession Act provides -
"233. When a residuary legatee who has a beneficial interest survives the testator, but dies before the estate has been fully administered, his representative has the same right to administration with the will annexed as such residuary legatee."
The petitioner claims the right to administration with the will annexed as the representative of the residuary legatee. The question which is being canvassed on behalf of the petitioner is that Mrs. Urmila Dhillon having outlived her husband had, before her death, become an absolute owner by virtue of the will. The absolute property of female is heritable by her personal heirs. The contention of the caveator is that Punjab customary law would apply to this estate as Col. Dhillon, being a Jat Sikh, was governed by the rule of custom and not by the Hindu law.
My attention has been drawn by the learned counsel for the petitioner to Fateh Ali Shah v. Muhammad Bakhsh, ILR 9 Lah 428 : (AIR 1928 Lah 516). In that case a Gardezi Sayad of Multan, belonging to Shiah sect, had executed a deed which purported to gift to one of his wives Mst. Mughlani Bibi (who was also a Shiah) certain. ancestral property to which she was to have an absolute title. When Mst. Mughlani died, the property was mutated in favour of her sole surviving sister who entered into possession. The heirs of the deceased husband asserted that on the death of Mst. Mughlani the property reverted to them. The Collector ordered the removal of the name of Mst. Rani, the sister of Mst. Mughlani. Mst. Rani then sued for possession from which she had been dispossessed.
It was held that the gift of the ancestral immovable property was not a pure gift (Hiba) but a gift for consideration (Hiba-bil-iwaz) which was tantamount to sale. It was then held that the devolution of such an estate, after the death of the grantee must, therefore, be regulated not by the law by which the grantor was governed but according to the law applicable to the grantee. The property, therefore, was held to be the absolute estate of Mst. Mughlani at the time of her death and was not subject to reversion to her husband's heirs, but was heritable by her personal heir who, under the Shiah law, was her full sister Mst. Rani.
Similarly, it is argued that Mrs. Urmila Dhillon had become an absolute owner by virtue of the will and, on her dying intestate, her personal Heir is entitled to succeed.
36. Reference has been made to paragraph 271 of the Digest of Customary Law by Rattigan. It provides -
"271. Where the husband has pre-deceased his wife, the succession to such property as the wife possessed in her own right depends on the nature of that property. If immovable, it usually passes to her sons if any, and, failing them, to the male collaterals of the last full owner. If movable, and specially in the case of ornaments and wearing apparel, the daughters have a preferential claim, the unmarried usually excluding the married."
This provision was considered in Gurdial Singh v. Mst. Bhagwan Devi, ILR 8 Lah 366 : (AIR 1927 Lah 441), by a Division Bench. The facts of that case were that one Kahan Singh a Khatri of Amritsar district who had spent many years in Oudh returned to Amritsar with a Purbia woman of unknown caste. He had made a will bequeathing to her absolutely two houses, which were his self-acquired property, styling her as "Aurat Madhkula" which meant a concubine or a keep or a mistress in contradistinction to a wife who was married according to religious rituals-Aurut Mankuha. It was held that the houses having been bequeathed to the Purbia woman as her absolute property, the succession would be regulated by Hindu law by which she should be presumed to have been governed and not by the Punjab customary law by which Kahan Singh testator was governed.
Referring to the statement in paragraph 271 above, Tek Chand, J., remarked -
"Assuming, however, that he was so governed, I do not know of any rule of Custom, under which the special property of a married woman governed by Customary Law, devolves on her husband's heirs in preference to her own relations. The statement in Rattigan's Digest of Customary Law, paragraph 271, on which Mr. Nawal Kishore relies, is not supported by any authority whatever and I am not prepared to follow it. Custom is a matter of proof and not of conclusions based on a priori reasoning or deductions drawn from a comparative study of the laws of distribution prevailing among primitive societies. The learned author of the Digest does not base his remark on any entry in the riwaj-i-am of any district in the Punjab or on any decided case reported or unreported. I must, therefore, respectfully decline to follow it. In the absence of any well-ascertained Custom relating to this matter, we must fall back upon Hindu Law, Daya Ram v. Sohel Singh, 110 Pun Re 1906 (FB), and as already stated, under that law the plaintiffs are not the heirs."
I am, therefore, led to the conclusion that Section 233 of the Indian Succession Act applies. The petitioner has locus standi as the representative of deceased residuary legatee to apply for the Letters of Administration with the will annexed. The question in this case is not whether Letters of Administration should be granted to the respondent, Pirthi Singh but whether the petition of Smt. Bishan Devi can be dismissed at the instance of the caveator.
37. Finally, Mr. Daulat Ram Manchanda urged that the petition deserved to be dismissed because of certain admission of P. W. 9, Diwan Chand, who is the husband of the petitioner and father of Mrs. Urmila Dhillon.
38. In his statement he had said,--"If M.S. Dhillon and his wife had died intestate, the respondent and his son would have succeeded to the property of the testator as his heirs. They are, of course, not heirs to the personal property of my daughter."
I do not consider the above statement to be an admission by a party or his agent and whatever is stated does not unambiguously indicate that the caveator and his son are the heirs in this case. In any case, on a question, as to who under the law or custom is entitled to succeed, the statement of a witness as to his notion of the law or custom is not binding on the party. No benefit can be derived from the above statement by the caveator.
Reference was also made to the statement of R. W. 2, Shri Amar Singh, Advocate, who stated that, where a male Jat marries a Khatri girl, both are governed in the matter of succession by the law of custom. In cross-examination he said that he was not in a position to say whether the property, on the wife dying issueless, would still devolve on her husband's heirs. Reference was also made to a similar statement of R. W. 3, Pirthi Singh, caveator, to the effect that the right to succeed in the event of death of the donee or legatee without issue belonged to the heirs of the husband. These are bald statements which are made one by an interested witness and the other by the caveator, and it will not be safe to take the law from them, unsupported by any instances, and not found in any records which are the usual repositories of custom and usage.
39. For the foregoing reasons, the contentions of the caveator cannot prevail, and this question is decided in favour of the petitioner.
40. In view of my findings on the issues in this case, the petitioner is entitled to the grant of Letters of Administration with the will annexed of Col. Mahabir Singh Dhillon executed on 16th March, 1950, to have effect throughout India, and I order accordingly. The petitioner shall be en titled to her costs of the petition.