GOVIND PRASAD Vs. KUNWARANI BALA KUNWAR

JUDGEMENT

(1.) This appeal relates to the estate of Dushashan Singh, who died childless on 21 March 1912, leaving a widow, Lachmi Kuer, who died on 7 January 1921. The suit was brought on 21 November 1933 by Kunwarani Bala Kunwar, the niece of Lachmi Kuer, who claimed the estate by virtue of a written will, alleged to have been executed by Dushashan Singh in or about December 1911, some three months before his death, but which had been lost or destroyed and could not be produced. The defendants claim right to the estate as being entitled to the reversionary right on the death of the widow. The only issue in the suit was "Did Dushashan Singh make a will in favour of the plaintiff and is she owner of the property in suit by virtue of the will?" The Additional Subordinate Judge of Mainpuri, before whom the suit was tried, held that the plaintiff had failed to prove the alleged will and on 12 April 1924 he dismissed the suit. On an appeal by the plaintiff, the High Court of Judicature at Allahabad, by decree dated 14 November 1927, set aside the decree of the Subordinate Judge and decreed the suit of the plaintiff for declaration that she was the owner of the property in suit on the basis of the will of Dushashan Singh. The defendants have brought the present appeal against the decision of the High Court. The respondents, (other than the pro forma, defendants), are the representatives of the plaintiff, who has died since that decision.

(2.) The main question in the appeal is whether the respondents have proved the alleged will and its contents. The appellants maintain that the will has not been proved, but their counsel admitted at the outset that the appeal could not succeed unless the credibility of the plaintiff's witnesses was successfully impugned, because the evidence, if believed, was sufficient to establish the plaintiff's case. The question therefore turns wholly on the credibility of the plaintiff's witnesses. In the first place, it is to be noted that the learned Subordinate Judge's rejection of the plaintiff's evidence is solely based on the evidence, oral and documentary, placed before him; he makes no comment on the demeanour of the witnesses or on their truthfulness apart from comments on the probabilities of the truth of the story actually told by them viewed in the light of the surrounding circumstances. It follows that an appellate Court is in as good a position to judge of the matter as the trial Court. In the second place, their Lordships agree with the High Court that the criticisms of the Subordinate Judge, when pushed to their logical conclusion, amount to the allegation of a widespread conspiracy on the part of the original plaintiff, Bala Kunwar, and her witnesses, and this was admitted by counsel for the present appellants. It is further to be observed, as also noted by the High Court, that none of the witnesses was asked any question as to any discreditable action on his part at any time of his life, nor was any suggestion made to any one of them that he was engaged in a conspiracy, nor was the initiator or the active mover of the conspiracy indicated, except in so far as the Judge himself points to the lady.

(3.) In these circumstances their Lordships are of opinion that the learned Subordinate Judge was not entitled to attribute to the original plaintiff and her witnesses conspiracy and perjury, unless the story told by them, coupled with the surrounding circumstances, was of itself so unnatural and improbable that only one conclusion, viz., conspiracy and perjury, was reasonably possible. In his judgment the Subordinate Judge has conveniently grouped the evidence in stages, and the High Court has dealt with the learned Judge's criticizms in each stage seriatim. The first stage related to the existence of any occasion for the making of the will, and the second stage dealt with the alleged object in view in making the will. The Subordinate Judge gave his reasons for thinking that there could be no genuine occasion for making the will or for the selection of Bala Kunwar as the object of the testator's bounty. Their Lordships are content with the criticizms of the High Court on these reasons and their disagreement with the Subordinate Judge when he stated, at the close of his criticizms on the second stage, ?All this leads me to look at the whole story with a suspicious eye."