Modi, J. - (1.) THIS is a special appeal against an order of a learned Single Judge of this court by which the appellant's application for grant of probate was dismissed.
(2.) THE material facts leading upto this appeal are these. One Maliram who is the alleged testator of the will Ex. P. 2 is said to have made it on the 11th October, 1944. THE will was registered on the 11th January, 1945. Maliram died on the 5th November, 1946. THE appellant before us is one of his two sons Kedar Nath, and the respondent Sitaram is the other son. Kedar Nath filed an application for probate in the court of the District judge, Jaipur, on the 28th April 1952. Sitaram resisted this application. His case was that his father Maliram had not executed any will at all and further that at the time he is alleged to have executed the will, he was so ill that he had no sound disposing mind. He also objected that the testator had no right to make a will in respect of the property in question; but with that aspect of the case, we are not concerned so far as these probate proceedings go. THE only issue which was framed by the trial court on the aforesaid pleadings was whether the deceased executed a valid will in favour of the applicant on the 11th October, 1944. That court, as a result of the consideration of the evidence led by both parties, came to the conclusion that it was not convinced that the will was executed by the deceased and signed by him while he had a sound disposing mind. THE trial court also held that the signature of the respondent Sitaram appeared to be fabricated. It was also persuaded to hold that the appellant Kedar Nath who was the legatee under the will had taken a prominent part in the execution of the will by his father and on this ground also the will was a very suspicious document. THE trial court, therefore, dismissed the application for probate with costs. The appellant thereupon filed an appeal in this court which was disposed of by a learned Single Judge*. The findings of the learned Judge may be briefly summarized as follows : - (1) The execution of the will Ex. P. 2 by the deceased Maliram was satisfactorily proved; (2) Maliram had a sound disposing mind at the time the will was executed ; and, (3) The finding of the trial court, that the part played by the appellant in the making of the will by his father Maliram was highly suspicious, was not well founded. Having arrived at these findings in favour of the appellant, the learned Judge then addressed himself to the question whether the will was properly attested. His findings on this aspect of the case are that the will bore the signatures of Basantilal, Badrinarain and the respondent Sitaram ; that the attestation of Badrinarain was proved, but he further came to the conclusion that the signature of Sitaram on the will was given in his capacity as an executant and not as an attesting witness. So far as Basantilal was concerned, he was merely a scribe. Having regard to these circumstances, the learned Judge came to the conclusion that the will was attested by only one attesting witness,, Badrinarain and that the signatures of Sitaram must have been obtained to secure his approval of the will rather than for the purpose of attestation. In this view of the matter, the learned Judge came to the conclusion that the will was not proved to have been attested by two witnesses as required by Sec. 63 of the Jaipur Succession Act which is in the same terms as Sec. 63 of the Indian Succession Act, and therefore, he upheld the dismissal of the application for probate though for very different reasons from those which had prevailed with the trial court. Kedarnath has now come up in special appeal to this court under sec. 18 of the Rajasthan High Court ` Ordinance (No. XV) of 1949. It is a matter to be regretted that this appeal has had to be heard ex parte although we gave more than one opportunity to learned counsel for the respondent to put in his appearances in this court. All the same, we have looked very carefully into the facts and circumstances of this case and the law bearing on it, and as a result thereof, we have come to the conclusion that this appeal must be allowed. The first and foremost question which has engaged our attention in this appeal is as to the precise scope of this appeal. It is incontrovertible that sec. 100 of the Code of Civil Procedure has no application to an appeal of this character. That section provides for appeals from appeals from the decree passed in appeal by any court subordi-nate to the High Court, and no argument is needed to show that a special appeal under S. 18 of the Rajasthan High Court ` Ordinance cannot fall within the four walls of this section. It must follow, therefore, that the limitations to which an appeal under sec. 100 is subject, cannot be imported for the purposes of dealing with special appeals. It may next be pointed out that an appeal under sec. 13 of the Ordinance is from the judgment of one| Judge of the High Court. There is authority for holding that the word "judgment as used in this section which is the counter-part of a similar provision in the Letters Patents of the various other High Courts in our country does not bear the meaning which has been assigned to it under Sec. 2 (9) of the Code of Civil Procedure but it has been used in the sense of a sentence of the law pronounced by court and not in the sense of the reasons which have led to that pronouncement. This was the view which was adopted in a Full Bench decision of the Calcutta High Court in Upendra Nath vs. Bindeshri Prosad (1), wherein Jenkins, C. J. , and Mookerjee, J. both propounded the view that in a Letters Patent Appeal, it would be open to the court of Appeal to consider all the points necessary to be investigated for the determination of the questions of the decree under appeal, and that such consideration could not be limited to any particular question of fact or law, although the learned Judges added the rider that on a question of act, they would be extremely slow to interfere where there had been concurrent decisions of the courts below on such a question. The same view was taken in Kishan Singh vs. Taru (2) by a Division Bench of the Punjab High Court and it was held that all the points necessary to be investigated for the determination of the correctness of the decree passed in second appeal were open for consideration in the Letters Patent Appeal. We are in respectful agreement with this view and hold accordingly. Turning now to the merits of the appeal, the learned Single Judge has held that the will was satisfactorily proved to have been executed by the deceased Maliram. There is the evidence of P. W. 2 Basantilal, the scribe of the will, and of P. W. 5 Badrinarain, one of the attesting witnesses thereto, apart from the testimony of the appellant Kedarnath himself. We entirely agree with this view of the learned single Judge, in disagreement with the view of the trial court. There are no satisfactory reasons to look upon the testimony of these witnesses with distrust. The evidence of these witnesses is further corroborated by that of P. W. 1 Kailashchandra, the Registrar, who went to the house of the deceased Maliram to register the will on the 13th October, 1944, as an application for that purpose had been filed before him. The testimony of this witness was that both Kedarnath and Sitaram, the parties to this litigation, and their father Maliram were known to him from before. An application (Ex. P. 1) had been made to him for registering the will which had been made by the aforesaid Maliram on the 11th October, 1944. Thereupon he went to register the will Ex. P. 2. His evidence further is that he Wad read it over to Maliram. Maliram was in the senses at that time and he admitted that the will had been executed by him having understood its contents and that he had also admitted his signatures on it. The witness further stated that at the time he went to register the will, Maliram was ill and was lying on a cot and he was also suffering from some eye-trouble. But apart from this eye-trouble and general weakness due to old age, he was in fairly good health. In his cross examination, this witness stated that, as far as he remembers Maliram had put his signatures in his presence on his statement Ex. P. 1 recorded by the witness without the assistance of anybody else. He further stated that he did not consider it necessary to put any further questions to Maliram as regards his mental health as he appeared to him to be in a fairly good condition. Shri Kailash Chandra is an entirely independent witness unconnected with any of the patties ; and we respectfully agree with the learned single Judge that there is no valid reason to doubt his, testimony. We may also mention at this place, that the evidence of the respondent Sitaram's witnesses D. W. Nathulal and D. W. Surajnarain, which has been led to show that Maliram was extremely ill at the relevant time and was, therefore, not in a sound disposing mind is of very little probative value as compared with the evidence of the appellant's witnesses and particularly that of Shri Kailash Chandra. In this view of the evidence, we also agree with the finding of the learned Judge that Maliram had sound testamentary capacity at the time the impugned will was executed. We also see no reason to look upon the will with any suspicion on the ground that the appellant Kedarnath had played a prominent part in the making of it. It is true that it was Kedarnath who had sent for the scribe Basantilal. But that was nothing unnatural because Maliram was old and not in a condition to move about. Besides, the evidence of Basantilal is clear that he had taken all his instructions from Maliram himself. We see no reason to disbelieve the evidence of Basantilal, the scribe, on this point; and consequently we are fully satisfied that the execution of the will cannot be doubted on the mere ground that Kedarnath, the appellant, had taken some part in bringing this about in the circumstances mentioned above.
(3.) THIS brings us to the crux of the case, namely, whether the will in question ( Ex. P. 2 ) was properly attested. A free translation of the will in English has been given in the judgment of the learned Single Judge, and we do not consider it necessary to give it here in extenso, and we shall content ourselves by reproducing only such portion thereof as are material for the purposes of deciding the question of attestation. At the very beginning of the will, we find the following words : "i, Maliram, son of Gopinath, Khandelwal of Jaipur Chowkri Purani Basti Rasta Govindrajiyan, shop keeper of groceries in Kishenpol Bazar. " Then the testator goes on to mention that he has two sons Sitaram and Kedarnath,and that of these Kedar Nath had been brought up by Mst. Bhuri ( who was a sonless widow of Jagannath) since his childhood and that Kedarnath had been living in the house of Jagannath. It is further mentioned that a partition of the ancestral property had already been made between the testator and his other son Sitaram and that they were in possession of their respective shares ever since the partition had been made. Thereafter, the testator goes on to mention that he was an old man of 75 years and that Kedarnath had been serving him very well. He, therefore, desired that Kedarnath should have his share of the property after the death of himself and his wife. It was with this object that he (the testator) was making this will" toeing in sound mind and full senses". The will is dated the 11th October, 1944. Immediately thereafter there is the signature of the testator Maliram. Below the signature of Maliram, there is the signature of Badrinarain, and his endorsement is to the effect that he had signed the document at the instance of Mali Ram and Sita Ram. Just opposite the signature of Mali Ram, almost in the same line, appears the signature of Sitaram. As stated by the learned Single Judge, the signature of Sitaram is preceded by the word "d" which is an abbreviation of "dastkhat" or "signed by". Before the signature of Badrinarain however there appears the word 'g' which is an abbreviation of the word "gavah" or witness. According to the learned single Judge this "g" stands for witness but the same could not be true of the word "d" used by Sitaram. The learned Judge seems to have been greatly impressed by the circumstance that the word "g" was not used by Sitaram as a prefix to his signature but instead he had used the word "d" and that this indicates the difference in the respective capacities in which each of them signed the document. The other important circumstance to which it is necessary to draw attention in this connection is that Badrinarain in his endorsement had said that he was putting his signature at the instance of Maliram and Sitaram and this factor also seems to have influenced the learned single Judge very considerably in coming to the conclusion to which he did, namely, that Sita-Ram was not an attesting witness of this document. With all respect, the positive finding to which the learned single Judge has come in connection with the signature of the respondent Sitaram is not entirely consistent, inasmuch as at one place, his view appears to be that Sitaram had signed it as an executant while at another place he seems to have been of the opinion that he had signed the same in token of his consent thereto. But, in any case, this much is certain that the view of the learned single Judge was, in the light of the circumstances mentioned above, that Sitaram had not signed the document as an attesting witness. In coming to this conclusion, considerable reliance seems to have been placed on a decision of their Lordships of the Privy Council in Sarkar Barnard & Co. V. Alak Manjary Kauri (3 ). We have given our most careful consideration to this aspect of the case, and with all respect, we do not find ourselves in a position to concur in the finding arrived at by the learned Single Judge. We may point out at the outset that so far as Sitaram himself was concerned, he completely denied his signatures on the will Ex. P. 2. It has been held by the learned single Judge himself that this denial is absolutely false and we agree with this finding. For, there is the evidence of P. W. Basantilal and of P. W. Badrinarain, apart from that of P,w. 7 the appellant Kedarnath, that Sitaram was present at the time the will was signed by the deceased Maliram and that he had put his signatures on the same in their presence. We see no reason whatsoever to disbelieve the testimony of these witnesses, which has not been shaken in cross examination in any manner whatsoever. We may also draw attention to the fact that it was not the case of Sitaram that he had not signed the will as an attesting witness but in token of his having consented to it. There is nothing in the testimony of Sitaram himself or his witnesses to this effect. We may also point out that no cross examination was directed against the witnesses of the appellant Kedarnath to elicit this circumstance. We must have, therefore, very strong reasons to come to the conclusion that the will had been signed by Sitaram, either as an executant or as a consenting party thereto. We have looked minutely into the entire material on the record of this case in Order to see whether we can properly come to such a conclusion but have not been able to find anything in the evidence worth the name. Let us refer in this connection to the evidence of P. W. 2 Basantilal, the scribe. The evidence of this witness is that he had drawn up the will Ex. P. 2 in accordance with the instructions given to him by the deceased Maliram. His evidence further is that Maliram has put his signature on it in his presence and that Sitaram and Badrinarain had witnessed the same (Sitaram Badrinarayan AGAHI HAI ). The witness further amplified the aforesaid statement by saying that the marginal witness Sitaram was Maliram's eldest son. In the cross examination, the witness admitted that he did not know Sitaram, who was Maliram's son, at the time Sitaram witnessed the will. No question whatsoever was put to this witness on behalf of Sitaram that the signature put by the latter on the will was not as an attesting witness but by way of giving his consent to the will. We should have expected that some such question should have been put to the witness if the respondent's case at any time was that he had signed the will not as an attesting witness but in any other capacity. The next witness who is relevant in this connection is P. W. 5 Badrinarain whose attestation has been unquestionably accepted by the learned single Judge also. His evidence is that one deed writer had brought the will to Maliram in the presence of the former and the same had been read out to Maliram. Maliram had fully understood it and then subscribed his signature to it. Thereafter, his eldest son Sitaram, who was there, signed the will. That having been done, Maliram and Sitaram asked him to sign it as a witness and he put his signature accordingly. This satisfactorily explains in our opinion why this witness had said in his endorsement that he had signed the document at the saying of both Maliram and Sitaram. With all respect, it seems to us that it would be going too far merely from the manner of the endorsement put by this witness necessarily to hold that Sitaram had earlier signed the document not as an attesting witness but as an executant thereof or in lieu of his having given his consent to the same. This is almost the entire evidence on the record which bears on the aspect under consideration. The other material on which the learned single Judge came to the conclusion to which he did was that Badrinarain the attesting witness had used the word "g" before his endorsement while Sitaram respondent had used the word "d" before his signature On a careful consideration of the whole issue, we are of the opinion that this would be a very slender foundation for coming to the conclusion that Sitaram had put his signature on the will as an executant or a consenting party while Badri Narain alone had put his signature as an attesting witness; It is difficult to put any precise signification on the use of the words "g" and "d" in the absence of any satisfactory evidence on the record. And for aught we know, it may not be at all usual for a person attesting a document to use the abbreviation before his attestation, and, in any case, it is not necessary, so far as we consider, that an attesting witness should necessarily use the word "g" before his attestation rather than "d" or for that matter put anything of that kind altogether. ;