Andhra HC (Pre-Telangana)
Mrs. Murial Hyden vs Mrs. Dulcie M. Robb And Ors. on 19 October, 1990
Equivalent citations: 1991(1)ALT5
JUDGMENT Immaneni Panduranga Rao, J.
1. The first defendant has preferred this appeal aggrieved by the letters of administration granted" in favour of the plaintiff to administer the suit properties under Ex.A.1 will dated 9-1-1956. The facts leading to the filing of the appeal, briefly, are as follows:
2. One Stanley Anthony Corbett (hereinafter referred to as 'the testator' or 'the executant') died on 9-1-1979. The plaintiff and the first defendant are his sisters. Defendants 2 and 3 are the children of another deceased sister. The fourth defendant is the widow and defendants 5 to 9 are the children of the deceased brother of the execulant. The parties are Anglo-Indians.
3. Immediately after the death of the testator, the plaintiff and the first defendant jointly filed O.P.No. 333 of 1979 on the file of the court of the Chief Judge, City Civil Court, Hyderabad on 24-7-1979 for grant of letters of administration alleging that the testator died intestate. Later on, the plaintiff filed O.P.No. 24 of 1980 which is later on numbered as O.S.No. 24l of 1980 on the file of the court of the Chief Judge, City Civil Court, Hyderabad for the grant of letters of administration in her favour alleging that she has discovered Ex.A.1 will dated 9-1-1956 executed by her brother. Admittedly the testator died as a bachelor
4. Defendants 2 and 3 remained ex parte. The other defendants contested the suit mainly disputing the genulneness of the will. It is pleaded in the written statement that the deceased testator expressed his desire to execute a will shortly before his death but before a counsel could be brought, he breathed his last; that the asset mentioned by the plaintiff is not the property of late S.A. Corbett, the testator; that the land and other assets were acquired out of the provident fund and other assets of his father, late William Corbett; that the testator was not the defacto owner of the property and he must be deemed to be a trustee holding the property for the benefit of all the heirs of late William Corbett and that Ex.A.1 will is vitiated by undue influence exerted by the plaintiff. The other grounds mentioned in the written statement are that the dispositions are wholly unnatural in the context of the origin of the property; that the plaintiff co-operated with the first defendant in filing O. P. No. 333 of 1979 and for the first time the plaintiff produced the will on 17-10-1979 and sought to be transferred as a respondent in that O.P; that the circumstances under which the will has come to light are highly suspicious and that the plaintiff is put to strict proof of the capacity of the deceased testator, the execution of the will and the attestation of the will in accordance with law.
5. The learned Chief Judge, City Civil Court has framed the relevant issues and negatived the contention of the first defendant that the house situate in Marred pally, Secunderabad was constructed by the mother of the plaintiff and the first defendant out of the sum of Rs. 25,000/- received by her by way of gratuity etc., after the death of William Corbett. He found that the said house is the self-acquired property of the testator; that Ex.A.1 will dated 9-1-1956 executed by S.A. Corbett is a genuine will executed by him in a sound and disposing state of mind; that the valuation of the suit and the court-fee paid thereon are correct and that the plaintiff is entitled to the relief prayed for in the suit. Basing on those findings, he has decreed the suit granting letters of administration in favour of the plaintiff in respect of Ex.A.1 will dated 9-1-1956.
6. Aggrieved by the said decision, the first defendant has preferred this appeal.
7. The learned counsel for the appellant-first defendant argued that it is the duty of the plaintiff who is the propounder of the will to prove satisfactorily the capacity of the testator to execute the will, that it was duly executed and validly attested and that the testator was in a sound and disposing state of mind when he executed the will. He further argued that in addition to the above, it is the duty of the propounder to dispel all the suspicious circumstances surrounding the execution of the will. He commented that there is no proof of the due execution of the will and its valid attestation; that the plaintiff's contention that she has discovered the will in the month of September 1979 in the box of the testator conned be believed; that P.W. 2 was examined only to prove the specimen signatures; that P.W.3 who is the daughter of the tenant was examined to identify the signature of William Herron which is quite unsatisfactory and that the evidence of P.W.5, hand-writing expert, which is only in the nature of opinion evidence cannot be relied upon in proof of the execution of the will. He also stated that the origin of the property being the provident fund amount of the father of the testator, the exclusion of other heirs from succession is quite unnatural; that even otherwise, there are no special reasons for the testator to exclude the other sisters and brother and to give the property only to the plaintiff under the will; that there is nothing on record to indicate that the testator had signed in the presence of the witnesses and that the attestors have attested the will in the presence of the testator. He, therefore, argued that Ex.A.1 will cannot be acted upon in the absence of proof of its due execution and proper attestation. The learned counsel also argued that the plaintiff, who is the propounder of the will, having been in custody of the document, the production of the will six months after the testator's death constitutes a suspicious circumstance. He, therefore, argued that the learned Chief Judge has committed an error in upholding the genuineness of the will and granting letters of administration as prayed for by the plaintiff.
8. The learned counsel for the contesting first respondent-plaintiff, on the other hand, argued that it is sufficient for the plaintiff, as the propounder of the will, to prove the due execution of the will in a sound and disposing state of mind by the 'testator and its due attestation; that the undue influence, if any, will have to be proved only by the caveator; that it is for the caveator to point out the suspicious circumstances which have to be explained by the propounder; that the three suspicious circumstances which were urged by the first defendant in the suit are (i) the deceased-testator is not the full owner of the property, (ii) all the brothers and sisters being affectionate towards the executant, the executant would not have chosen one of the sisters viz. , the plaintiff as the sole beneficiary under the will and (iii) the plaintiff joined the first defendant in filing O.P.No. 333 of 1979 for grant of letters of administration stating that the tesutor had died intestate; that the plaintiff has satisfactorily explained the alleged suspicious circumstances; that the proof of execution and attestation of the will is as in any other civil case and that the learned Chief Judge, City Civil Court is perfectly correct in finding that the execution and attestation of the will are duly proved and granting letters of administration in favour of the plaintiff.
9. On the grounds urged and the arguments addressed before me, the points that arise for consideration in this appeal are :
(i) Whether Ex. A. 1 will was duly executed by the testator and was validly attested?
(ii) If so, whether there are any suspicious circumstances'? and
(iii) Whether those suspicious circumstances have been dispelled by the plaintiff who is the propounder of the will?
10. Though it is pleaded in the written statement that Ex, A. 1 will is vitiated by fraud and undue influence and as such, it is not valid and binding on the defendants, the learned counsel for the appellant fairly conceded that he is not pressing that point as no evidence is let in on the question of the alleged undue influence and fraud. His main submission is that the plaintiff should fail by reason of not satisfactorily proving the due execution of Ex. A. 1 and its valid attestation.
11. Point No. 1 :-Admittedly the testator died in January, 1979. The learned counsel for the appellant argued that there is no evidence of even a single witness to show that the executant has signed Ex. A. 1 will or that he was in a sound and disposing state of mind at the time of execution of the will. He further argued that the testator was a bachelor of good health and if so, no circumstances are brought out in evidence explaining as to why he had to think of executing a will at the ripe age of 44 years. Relying upon the latest decision of the Supreme Court in Kalyan Singh v. Chhoti, , he argued that trustworthy and unimpeachable evidence should be produced before the court by the propounder of the will to establish the genuineness and authenticity of the will which is wanting in this case.
12. The learned "counsel for the contesting respondent-plaintiff, on the other hand, argued that the first defendant not having raised an objection to the marking of the will as Ex. A. 1 while the plaintiff was in the witness box is precluded from challenging the proof of the will at a subsequent stage. Normally no doubt, that is the legal position in respect of proof of documents. The objection as to proof should be taken at the time of marking the document and on the failure of the party to take objection as to the mode of proof, he or she will be precluded from raising an objection as to the mode of proof subsequently. But such an objection cannot be put forth in respect of documents which require a special mode of proof under law. Admittedly the will is a document, required by law, to be attested. If so, Section 68 of the Evidence Act lays down that such a document shall not be used as evidence unless one attesting witness atleast has been called for the purpose of proving its execution. When such a special mode of proof is required by law to prove a document and when Section 68 of the Evidence Act specifically lays down that such a document shall not be used as evidence until one attesting witness atleast has been called for the purpose of proving its execution, the normal rule, as propounded by the learned counsel for the plaintiff will have no application. The learned counsel for the first respondent-plaintiff in support of his contention relied upon a decision of the Privy Council in Gopal Das v. Sri Thakur Ji, A.I.R. 1943 Privy Council 83 which lays down that the objection as to mode of proof must be taken before the document is marked and not in the appeal for the first time. Their Lordships held that where an objection is taken about the mode of proof of a document, it is essential that it should be taken at the trial before the document is marked as an exhibit and admitted to the record and that a party cannot lie-by until the case comes before a court of appeal and then complain for the first time of the mode of proof. The document which was the subject matter of consideration by the Judicial Committee was a receipt. Another decision relied upon by the learned counsel in support of his contention is in Smt. Rafia Sultan v. O.N.G.C., 1985 (2) G.L.R. 1315. A Division Bench of Gujarat High Court held that an objection about mode of proof can be waived by a party and that unless such objection is raised by the party at the earliest opportunity in the trial court, such objection will be deemed to have been waived and cannot be permitted to be raised for the first time in the appeal. That is a case of tortious liability. In that case, the Commission inquiring into the liability, appointed an inquiry committee consisting of expert officers of the Commission who were ordained to go on spot immediately after the accident to find out the causes of the accident and to suggest ways and means for avoiding such accidents in future. While marking that document, the plaintiff did not raise any objection and the document was marked as an exhibit. Parts of that report were utilised by both sides for the purpose of their own respective cases. It is under those circumstances, their Lordships observed that it is well settled that objection about the mode of proof can be waived by a party and unless such objection is raised by the party at the earliest opportunity in the trial court, such objection will be deemed to have been waived and cannot be permitted to be raised for the first time in appeal. The learned counsel also relied upon another decision of a single Judge of Orissa High Court in Dhruba v. Parmananda, . That learned Judge simply following the decision of the Privy Council in Gopal Das v. Sri Thakur Ji (case 2 supra) held that no objection having been taken by the defendant to the mode of proof of the deed of gift when it was exhibited by the trial court, he cannot be heard to object that the document has not been duly proved. I cannot agree with the said observation of the learned single Judge of Orissa High Court because a special mode of proof is prescribed by Section 63 of the Indian Succession Act and Section 68 of the Evidence Act with regard to the proof of wills. When the law prescribes a special mode of proof for documents such as wills, irrespective of whether the objection is raised by the opposite party, the duty is cast on the plaintiff to prove the will in the manner prescribed by the statutory provision. It is not open to the learned counsel for the first respondent - plaintiff to contend that the first defendant in the suit having not raised an objection at the time of marking Ex. A. 1 will, is precluded from raising the objection with regard to the proof of Ex, A. 1 will at a subsequent stage.
13. It is, therefore, to be examined whether the requirement with regard to the proof of Ex. A. 1 will has been satisfied in this case.
14. The learned counsel for the appellant - first defendant has relied upon a catena of decisions indicating the nature of onus of proof on the propounder of the will. In H. Venkatachala v. B.N. Thimmajamma, , the Supreme Court laid down that Section 68 of the Evidence Act provides that a will shall not be used as an evidence until one attesting witness atleast has been called for the purpose of proving its execution ; that the said provision prescribes the requirements and the nature of proof which must be satisfied by the party who relies on such a document in a court of law ; that the question as to whether the will set up by the epropounder is proved to be the last will of the testator has to be decided in the light of Sections 67 and 68 of the Evidence Act and Sections 59 and 63 of the Indian Succession Act and that the will has to be proved like any other document except as to the special requirement of attestation prescribed by Section 63 of the Indian Succession Act. Their Lordships made it clear that as in the case of proof of other documents, so in the case of wills, it would be idle to expect proof with mathematical certainty and that the test to be applied would be the usual test of satisfaction of the prudent mind in such matters. In Shashi Kumar v. Subodh Kumar, the Supreme Court has reiterated that the mode of proving a will does not ordinarily differ from that of proving any other document except as to the special requirement of attestation prescribed in the case of a will by Section 63 of the Indian Succession Act; that the onus of proving the will is on the propounder and that in the absence of suspicious circumstances surrounding the execution of the will, the proof of testamentary capacity and the signature of the testator as required by law is sufficient to discharge the onus. Their Lordships further held that where there are suspicious circumstances, the onus is on the propounder to explain them to the satisfaction of the court before the court accepts the will as genuine and that where the caveator alleges undue influence, fraud and coercion, the onus is on him to prove the same. To the same effect are the subsequent decisions of the Supreme Court in Ramachandra v. Champa Bai, and Pushpavati v. Chandraja Kadamba, .
15. In the light of the above settled legal position, the learned counsel for the appellant has rightly argued that learned Chief Judge has committed an error in shifting the burden of proof on the defendant. The learned Chief Judge observed in paragraph 20 of his judgment that if the first defendant had known that Mrs. S.M. Baria was living at a particular place definitely, there was nothing that prevented the first defendant to examine her (Mrs. Baria) on behalf of the defendants or to file a petition to examine her as a court witness. The learned Chief Judge appears to have made that comment only to support the plaintiff's contention that the plaintiff did not know the whereabouts of Mrs. Baria. The learned Chief Judge has not actually drawn an adverse inference by reason of the mere non-examination of Mrs. Baria on behalf of the defendants. However, his observation that the first defendant should have taken steps to examine Mrs. Baria or to file a petition to examine her as a court witness is not called for as the burden is always on the propounder of the will to prove its due execution and valid attestation and the burden does not shift to the defendant.
16. The next series of decisions relied upon by the learned counsel for the appellant-first defendant relate to the mode of proof of attestation of the signature of the testator. The Supreme Court in Girja Datt v. Gangotri Datt, held that in order to prove the due attestation of the will, the propounder of the will has to prove that the two witnesses saw the testator sign the will and they themselves signed the same in the presence of the testator. Their Lordships further clarified that it cannot be presumed from the mere signatures of two persons appearing at the foot of the endorsement of registration of a will that they had appended their signatures to the document as attesting witnesses or can be construed to have done so in their capacity as attesting witnesses. A Division Bench of Madras High Court held in A. Rangaswamy v. A. Subramania, that either one or more of attesting witnesses should prove the execution by the testator and attestation by each of them.
17. In this case, the plaintiff who examined herself as P.W.1 stated that she has discovered Ex.A.1 will in the month of September, 1979; that the will is in the hand-writing of the testator and it bears his signature; that she does not know Mrs. S.M. Baria who has signed as a witness; that she does not also know the other attesting witness i.e., W. Herron; that subsequently she learnt that the said W. Herron was her brother's landlord and he is dead and that she made enquiries about Mrs. Baria but could not know who she was and about her whereabouts. P.W. 1 was subjected to a very thorough and searching cross-examination. She stated in her cross-examination that since a month prior to the death of the testator, he began to live with her; that she opened the box of her brother only in September, 1979 and not before; that she did not touch the box of her brother for about nine months after his death on sentimental grounds; that in September 1979, she opened the box to see if the contents were not spoiled by insects; that as soon as she discovered the will, Ex.A. 1, she went to her counsel Sri C. Rama Krishna and informed him about the existence of the will; that when the advocate expressed his helplessness, she approached another advocate by name Saleema Ratanse and that as she was going abroad, she (the plaintiff) was directed to Sri Bala Gopal, Advocate . In the course of her cross-examination, she is qustioned whether she is aware that Mrs. Baria , the attesting witness, is living at Secunderabad. When she pleaded her ignorance, she was questioned whether she was aware that Mrs. Baria lived near the old fire temple in M.G. Road, Secunderabad or whether she was living at Lalaguda for some time. P.W.1 pleaded ignorance of those two suggestions. What value can be attached to those suggestions made during the cross-examination of P. W. 1 can be judged from the case of the first defendant set up In the written statement. She has pleaded in paragraph 4 of the written statement that the deceased-testator has never executed any will or other testamentary disposition either on 9-1-1956 or any other date. The first defendant who examined herself as D. W. 1 did not depose that she is either personally aware of Mrs. Baria or whether she made any enquiries about her. In the absence of such statement by the first defendant, it is not explained as to on what basis, a suggestion could be made to P. W.1 in her cross-examination that Mrs. Baria was living at Secunderabad or near the old fire temple in M. G. Road Secunderabad. In the absence of such evidence, the statement of the plaintiff that she made enquiries about Mrs S.M. Baria but she could not know her whereabouts can be believed.
18. The statement of P.W. 1 that the other attestor W. Herron is dead is not disputed. The plaintiff has examined P.W. 6, who is the wife of W. Herron who deposed that her husband died on 25-9-1963 ; that she can identify the hand-writing and signature of her husband and that the portion marked as Ex. A.1 (a) in Ex. A.1. will is that of her husband. To substantiate her statement in the chief-examination that she is having the signatures of her husband, she has filed Ex. A. 12, ready reckoner, containing the signatures of W. Herron. Basing on her statement in the cross-examination that she does not know English, the learned counsel for the appellant tried to attack her evidence as baseless. That contention cannot be accepted because though she does not know English, her statement that she can identify the hand-writing and signature of her husband cannot be disbelieved. In fact, she has produced Ex. A. 12 during her chief-examination to show that she is capable of identifying her husband's signature. Excepting eliciting from her that she does not know English and that Exs. A. 1(a) and A. 12 are in English, nothing is suggested to her to demolish her statement that she can identify the hand-writing and signature of her husband, or as to why she should come and depose falsely in favour of the plaintiff. The statements elicited during the cross-examination of P.W. 6 are significant. It is brought out in her evidence that the deceased-testator lived as a tenant in her house; that even after the death of her husband, the testator continue as her tenant for about 3 or 4 years and that Mrs. Baria was living in one portion of her house as a tenant for some time. P.W. 6 stated that except that Mrs. Baria is a Parsi lady, she (P.W. 6) does not know much about Mrs. Baria and that she does not know where Mrs, Baria was living at the time of her deposition. The above evidence of P.W. 6 clearly shows that Mrs. Baria is not a fictitious person but was living as a co-tenant of the testator during the period he lived as a tenant in the house of W. Herron. It is thus, quite natural that S.A. Corbett, the testator of Ex. A-1 will has obtained the attestation of his landlord W. Herron and the other co-tenant of his house Mrs. Baria. Under the above circumstances, I hold that no value can be attached to the vague suggestion made to P.W. 1 in her cross-examination that Mrs. Baria was living near the old fire temple in M.G. Road, Secunderabad, at the time of her examination. The absence of making a similar suggestion to P.W. 6 when she stated in her cross-examination that she did not know where Mrs. Baria was living at the time of her cross-examination is very significant. From the above discussion, I hold that there is absolutely no reason to disbelieve the statement of P.W. 1 that she made enquiries about Mrs. S.M. Baria but she could not know who she was and about her whereabouts. When P.W. 6 asserted in her chief-examination that Ex.A. 1 (a) portion in Ex. A.1 is the signature of her husband, except eliciting that she does not know English and that Exa. A-l. (a) and A.1 are in English, no categorical suggestion is made that she is deposing falsely and that Ex. A.1 will does not bear her husband's signature. It, therefore, follows that the evidence of P.W. 6 that Ex. A.1 bears the attestation of her husband stands uncontroverted.
19. Inasmuch as one of the attestors is not alive and the whereabouts of the another attestor are not known and as such, she could not be examined as a witness, Section 69 of the Evidence Act applies to the facts of this case, which lays down that if no attesting witness could be found, it must be proved that the attestation of one attesting witness atleast is in his own hand-writing and that the signature of the person executing the document is in the hand-writing of that person. The plaintiff has fulfilled the requirements of Section 69 of the Evidence Act by examining P.W. 6 to prove that the attestation of W. Herron is in his hand-writing and by proving the hand-writing and signature of the deceased-attestor by examining P.W. 5, the hand-writing expert. P.W. 5 who has established his competence as an examiner of questioned documents has compared the disputed signature contained in Ex. A-1 with various documents which were submitted to him by way of comparative material. He deposed that he has photographed micrographically eight signature writings, examined them scientifically and forensically, performed tests of identification and comparison under numerous magnifying electronic illuminating apparatus and appliances, ultra-violet rays with sterio and comparison microscope in the laboratory by focussed transmitted light and rays and having strictly taken into account all the essential qualities and characteristics in quantitative and qualitative measures of the degree of similarities and dis-similarities, he came to the conclusion that the questioned signature (Ex. A. 1-a) is genuine. He has produced his scientific opinion as Ex. C-1, micro photographs on the just a posed process chart as Exs. C-2 to C-9 and the negatives of Exs. C-2 to C-9 as Exs. C-10 to C-17. He has asserted during the cross-examination that the pen used, the pen pressure, the length and spacing of letters, the formation of letters, general characteristics and the individual characteristics are similar in respect of the signature contained in Ex. A.1 to that of the signatures found on the vakalat and the deposition in R.C. No. 114 of 1975 and that there are no variations. He categorically stated that the signature in Ex. A. I is made by the same person who wrote the specimen signatures, sent to him and he denied the suggestion that the comparison of hand-writing as a mode of proof is at all times hazardous and inconclusive.
20. No doubt, the evidence of P.W. 5 is only an opinion of the expert. However, it is rendered relevant and admissible under Section 45 of the Evidence Act. The evidence of P.W. 5 that he has very carefully examined the specimen signatures with the signature contained in Ex. A.1 with the help of all the sophisticated instruments available in his laboratory cannot be simply brushed aside especially when the evidence of P.W. 1 that Ex. A.1 will is in the hand-writing of the testator and it bears his signature is not categorically denied by D. W. 1 while she was in the witness box. She has not categorically stated in her evidence that Ex. A.1 does not contain either the hand-writing or the signature of her brother S.A. Corbett. On the other hand, she admitted in the cross-examination that she is not acquainted with the signature of her brother S.A, Corbett or with his hand-writing. When a specific question was put to her, she stated in her cross-examination that she cannot say whether the will Ex. A.1 is in the hand-writing of her broter S.A. Corbett or that it bears his signature. She claims that her brother S.A. Corbett has written her short notes once or twice in his life time. But she has not chosen to produce them either during her evidence or to furnish those notes as a comparative material while sending Ex. A.1 to the hand-writing expert, P.W. 5. I, therefore, hold that the evidence of P.W. 5 expressing his categorical opinion about the genuineness of the signature contained in Ex. A.1 can safely be used to corroborate the statement of P.W. 1 that Ex. A.1 will contains the handwriting and signature of her brother late S.A. Corbett. A Division Bench of our High Court held in Venkatarama Raju v. Narasa Raju, 1966 (2) An. W.R. 134 that where there is proof of the testator's signature and the attestors' signatures and none of the attestors is available, there is a presumption that the will had been duly executed in terms required by Section 63 of the Indian Succession Act. As I mentioned already, Section 69 of the Evidence Act comes into operation when the attesting witnesses could not be found. The plaintiff had discharged the burden cast on her under Section 69 of the Evidence Act by proving the attestation of late W. Herron by examining P.W. 6 and by proving the hand-writing and the signature of late S.A. Corbett-testator contained in Ex. A.1 by examining P.W. 5.
21. The learned counsel for the respondent-plaintiff relied upon certain decisions to point out the nature of proof required in a 'Holograph 11. 1966 (2) An. W.R. 134. Will" i.e., a wilt entirely written by the testator. A Division Bench of Bombay High Court held in Irabasappa v. Bhadrawa, AIR 1922 Bom. 296 that it is extremely improbable that a person wishing to put forward a forged will would run the risk of imitating the hand-writing of the deceased-testator or get it imitated by some one else when it would be so easy to attack a forged document when it runs over a folio page. The learned Judges observed that it would be much simpler to have had the will written out by a professional writer, in which case it would only be necessary to imitate the signature of the deceased. On a consideration of the evidence in that case, it is held that there is nothing improbable in the story put forward by the plaintiff therein with regard to the genuineness of the will and that when a Holograph Will is attacked, the probability against such a forgery being attempted is very strong. The same view is taken by a Division Bench of Calcutta High Court in Ajit Chandra v. Akhil Chandra, holding that the law makes a great presumpton in favour of the genuineness of a holograph will for the very good reason that the mind of the testator in physically writing out his own will is more apparent in a holograph will than where his signature alone appears to either a typed script or to a script written by somebody else. Following the above two decisions, I hold that if really she plaintiff wanted to put forward a forged will, she would not have ventured to produce Ex. A.1 will which is a holograph will.
22. From the above discussion, I find on point No. 1 that Ex- A. I will was duly executed by the testator and was validly attested.
23. Point Nos. 2 and 3 :-One of the main grounds of attack against Ex. A.1 will is that the deceased-testator was not the full owner of the house left behind him and that the money spent for constructing the house is that of his father. It is pleaded in the written statement that the money for the land and the building No. 246 West Marredpally, Secunderabad was paid from out of the provident fund and other assets of late William Corbett, the father of the deceased-testator. The details of the provident fund and the other assets of late William Corbett are not mentioned in the written statement. P.W.1 deposed that at the time of the death of her brother, S.A. Corbett, he left one house bearing No. 246, West Marredpally, Secunderabad. In the cross-examination it is not suggested to her that the building was constructed with the funds of her father. There is no suggestion as to what amount was received by way of provident fund and what amount was spent for the construction of the house. As held in A.E.G. Carapiet v. A.Y. Derderian, a party should put his or her case in the cross-examination of the witnesses of the opposite party and the above rule is one of essential justice and not merely a technical rule of evidence. The Division Bench of Calcutta High Court clearly laid down that wherever the opponent has declined to avail himself or herself of the opportunity to put his/her essential and material case in cross-examination, it must follow that he/she believed that the testimony given could not be disputed at all. Ft is further held that such a course serves to prevent surprise at trial and mis-carriage of justice because it gives notice to the other side of the actual case that is going to be made when the turn of the party on whose behalf the cross-examination is being made comes to give and lead evidence by producing witnesses. The first defendant during her evidence stated that after the death of her father, her mother received about Rs. 25, 000/- towards provident fund from the Railways and that with that amount, her mother built the house bearing No. 246, West Marredpally, Secunderabad. She tried to depose that at the time of registration of the site her mother was a heart-patient and so the lease was registered in her brother's name. It is suggested to her in her cross-examination that her mother received only Rs. 7,500/-by way of provident fund amount and that the provident fund received by her was utilised for the maintenance of the family. The first defendant did not produce anything in writing to support her statement that her mother received Rs. 25,000/- towards provident fund after the death of her father nor did she produce any record to show that her mother spent Rs. 14,000/-oa the construction of the house. The entire evidence of D-W.1 that the house bearing No. 246, West Marredpally, Secunderabad was constructed with the funds of her father crumbles down in the light of her admission in the cross-examination that in OP. No. 333 of 1979 filed by her and P.W. 1, she has pleaded that the house belonged to her brother S.A Corbett. Having pleaded so in O.P. No. 333 of 1979, it is not open to the first defendant to come forward with a different version in this case. Moreover, it is brought out in evidence that S.A. Corbett filed a petition to evict the first defendant's husband in R.C. No. 114 of 1975 treating him as a tenant in the premises bearing No. 246. West Marredpally, Secunderabad. In Ex. A.13, which is the decision of the learned Rent Controller, Secunderadad in R.C. No. 114 of 1975, the contentions urged in the counter filed by the first defendant's husband are set out which disclose that he has admitted that the monthly rent was Rs. 60/- and that he was put in possession of the subject matter of that eviction petition in May, 1971.
24. In the light of the above overwhelming evidence it is not open to the first defendant to contend that the ceceased-testator was not the full owner of the property and that the money for constructing the house flowed from her father.
25. Another suspicious circumstance put forward is that all the brothers and sisters were affectionate towards the executant and so there is no particular reason to choose the plaintiff as the sole beneficiary under the will. The testator was a bachelor and hi, choice of executing the document was between a brother and two sisters. It is not possible to explain as to what made the executant to bequeath his entire property to the plaintiff. Ex. A-1 itself does not make any mention except stating that he was bequeathing all his monies and properties both movable and immovable to his youngest sister who was then residing in West Bengal. But from that fact alone, it cannot be presumed that it is an unnatural disposition and on that ground, the will should be branded as a forgery.
26. The other suspicious circumstance highlighted by the learned counsel for the appellant is that the plaintiff joined the first defendant in filing O.P. No. 333 of 1979 alleging that deceased-testator had died intestate. The plaintiff as P.W. 1 has explained in her evidence that when she filed O.P. No. 333 of 1979 on the file of the Chief Judge, City Civil Court, Hyderabad, she was not aware about the existence of the will; that she opened the box of her brother S. A. Corbett only in September, 1979 to see whether the contents therein were spoiled by insects ; that at that time, having discovered the will, she went to her counsel who filed OP. No. 333 of 1979 on her behalf and informed him about the existence of the will and that when the advocate expressed his helplessness, she approached another advocate. She has thus, satisfactorily accounted for her conduct in joining the first defendant in filing O. P. No. 333 of 1979. Her conduct in approaching her advocate soon after discovering the will is quite natural and when the learned advocate expressed his helplessness in the matter, she approched another advocate and filed O. P. No. 24 of 1980 for the grant of letters of Administration. I, therefore, hold that this cannot be considered as a suspicious circumstance.
27. There is neither a suggestion nor proof that the plaintiff was present or that she has taken an active part when Ex.A. 1 will was executed by late S.A. Corbett. On the other hand, her evidence is that she was staying in West Bengal with her husband during that period. Her statement is corroborated by the recital in Ex. A.1 that the beneficiary under the will is the youngest sister of the executant who was residing in the mill compound of Titaghur Jute Factory at Titaghur in West Benal. It cannot, therefore, be said that being present in the company of her brother, S. A. Corbett the plaintiff has prevailed upon him to execute the will making unnatural dispositions bequeathing his entire properly to her excluding the other heirs. It is significant to note that except the first defendant, the other defendants did not contest the suit on the ground of unnaturalness of the dispositions.
28. From the above discussion, 1 find on point No. 2 that there are no suspicious circumstances surrounding the execution of the will Ex. A. 1. I find on point No. 3 that the alleged suspicious circumstances put forth by the first defendant have been dispelled by the plaintiff, who is the propounder of the will.
29. In the light of my findings on point Nos. 1 to 3 above, I hold that the decision of the learned Chief Judge, City Civil Court, Hyderabad in granting letters of administration in favour of the plaintiff basing on Ex. A. 1 will is perfectly correct and does not call for interference. The appeal is accordingly dismissed. In view of the relationship between the parties, I direct each party to bear its own costs in the appeal.