P L D 1955 Federal Court 92 (PLP)

CORNELIUS, J.‑This is a plaintiff's appeal by one Fateh Muhammad on the basis of a certificate granted by two learned Judges of the Lahore High Court who had dismissed the plaintiff's suit, accepting an appeal against a decree awarded to him by the trial Court. The decree was for a declaration in respect of certain land in Lyallpur District, which had been mutated by the revenue authorities in favour of the principal defendants Shah Muhammad and his wife Mst. Niamat, that the mutation would not affect the reversionary rights of Fateh Muhammad, as nephew to the last male holder Azmat, after the death of Azmat's widow Mst., Fatto: The allegations of fact in the case are simple. The property has been held, in the absence of proof to the contrary, to be non‑ancestral qua the plaintiff. On the death of Azmat which occurred early in 1947, . .a mutation was entered by the village patwari on the 21st February, 1947, proposing to substitute the name of Mst. Fatto, for that,. of Azmat in relation to the suit land.. 'The patwari's report mentioned that Azmat Ali was alleged to have made a registered will in favour of the daughter of his brother Imam Din, (i. e., Mst. Niamat) and her husband Shah Muhammad, who were to succeed after the death of Mst. Fatto. A Revenue Officer on the 16th April, 1947, made .an order. directing a mutation in favour of Mst. Niamat as to half and Shah Muhammad' as to the other half, . stating that a copy of the registered will ,had been produced. by Mst. Fatto, who had publicly, renounced her life estate and requested that the land should be entered in the names of Mst Niamat and Shah Muhammad. Fateh Muhammad instituted his suit on the 16th June, 1947, for a declaration of the, rights‑ in Azmat Ali's property of himself and Azmat Ali's other nephew Muhammad Buta, brother to Mst. Niamat. , Several questions arose out of the pleadings of the parties, but of these only one has been raised for decision in the present case. The finding that the property is non‑ancestral has not been challenged and consequently if the will is held to be proved, Fateh Muhammad has no locus standi to sue. The trial Court held that the execution of the will was not proved. It was propounded by the defendants who produced a certified copy obtained from the Sub‑Registrar at Toba Tek Singh, alleging that shortly after the death of Azmat Ali, Fateh Muhammad had induced Mst. Fatto to hand over the original will to him, saying that it needed some corrections, and had never returned it. A registration clerk identified ‑the entry relating to the will in his registers. The date of the registration was the 3rd February, 1931, the document having. been presented before the Sub‑Registrar on the previous day, on which it purported to have bees executed. Mst. Fatto as D. W. 2 said nothing regarding the execution of the will. Shah Muhammad, defendant, D. W. 4, merely said that he had been told by Mst. Fatto that the will had been taken away by the plaintiff. Karim Bakhsh, D. W. 3, who was not an attesting witness of the will or of its registration, deposed that it was executed and presented for registration in his presence, but the trial Judge disbelieved his evidence firstly because his attestation did not appear on any document and secondly because he had a cause of enmity towards the plaintiff. He did not decide the question whether the will had been handed over to the plaintiff. On appeal, the learned Judges of the High Court recon sidered the evidence and thought that it was "quite possible that when Fateh Muhammad asked for the will, Ma. Fatto gave it to him because she had no reason to suspect his good faith." Some evidence had been led by the plaintiff in the trial Court to show that at the time when the will was made, Azmat Ali was not of sound disposing mind having .lost his reason through grief at the death of his son about the year 1923. No finding had been given on this point by the trial Court, but in the high Court this evidence was considered and found to be unsatisfactory. As regards the execution of the will, the learned Judges thought that Karim Bakhsh could not be regarded as a reliable witness, out they paid particular attention to certain circumstances appearing in the case, in particular the fact that the will was a registered instru ment, the fact that Mst. Fatto had accepted it even to the extent of surrendering her own life interest in the land, and the further fact that Mst. Jaina, mother of Mst. Niamat and Muhammad Buta had filed a written statement in the capacity of Muhammad Buta's guardian, supporting the will, although it was adverse to the interest of her own son. There were four attesting witnesses to the will, all of whom were, dead when the case began, and the scribe, who was a Hindu, had migrated to India. In the absence of the original, it was not possible to adduce proof regarding the signature of any witness to the will. The learned Judges took account of certain cir cumstances which went to support the statement in the will that Shah Muhammad had been brought up from his infancy by the testator, and relied further on the fact that the attesta tion of the will by as many as four persons belonging to the same village indicated that there was no secrecy about its execution. These circumstances induced the learned Judges to hold that execution of the will had been proved. This finding has been challenged by Mr. Yaqub Ali Khan on behalf of Fateh Muhammad, but having considered all the relevant facts and circumstances, we cannot see any ground for disagreement with the view taken by the learned Judges in the High Court. In the circumstances appearing in the present case, direct evidence of the execution of the will was not to be expected. It is in our view sufficient for the purposes of the case that the endorsement made at the time of registra tion shows that the testator having heard the contents of the will read out to him confirmed and admitted that he had executed and completed the document. The possibility of a person having personated Azmat Ali before the Registrar is, in our opinion, satisfactorily excluded by the tact, appearing from the Registrar's endorsement that Azmat Ali was identi fied by Nabi Bakhsh, Lambardar 4 the testator's village, who was personally known to the Sub‑Registrar on account of his being a Lambardar. This Nabi Bakhsh was also one of the attesting witnesses to the will, and his presence at the time of the registration, when the will was read out and its contents and execution admitted by Azmat Ali therefore gains added importance. There are sufficient grounds for disregard ing the direct evidence execution which Karim Bakhsh (D. W. 3) had given, but this does not reflect upon the circumstances attending the execution of the will. We are satisfied from the certified copy of the registered will that its, execution was not attended by any secrecy or other device calculated to keep other interested parties in the dark, but on the other hand, we accept the conclusion reached by the learned Judges that the execution of the will was attended by a considerable degree of publicity. It was not to be expected that Mst. Fatto could prove the execution of the will, but it is perfectly clear that she was aware of its existence and her whole‑hearted acceptance of the devise by her late husband of his estate appears very clearly from her public surrender of her life estate in favour of the ultimate devisees. We agree also that the renunciation of Muhammad Buta's rights by his own mother, acting on his behalf, is a factor going in favour of the genuineness of the will. It is true that more registration cannot be regarded its in law, affording sufficient proof of the voluntary execution of the will, much less of it. being executed while of sound disposing mind by the testator. Where there are circumstances of suspicion, it is the duty of the Courts to accept such evidence with great caution, and only to the extent to which it goes. In the present case, however, no features of suspicion appear in relation to the execution of the will in 1931. We are satisfied that the existence of the will was known to all: members of the family and no objection was taken to it throughout the long period of 15 years for which Azmat Ali survived the making of the will. With the exception of Fateh Muhammad, all other interested parties, by their actions upon the death of Azmat Ali, and by their pleadings in the case, have supported the will even to the extent of causing detriment to themselves in more than one case. On the other hand, Fateh Muhammad's attitude in the matter has been clearly lacking in candour. The allegation that he had obtained possession of the will from Mst. Fatto by a device was made by her in a sworn statement at an early stage of the case. In his own deposition, made somewhat later, Fateh Muhammad did not choose to deny this charge. Even his denial of the will is hardly unequivocal. It was couched in the following words :‑ "I do not know whether he (Azmat) made any will or not. No one ever told me about ouch a thing." We think that the finding of the learned Judges of the High Court on this question is based on proper appreciation of the facts and circumstances, and is undoubtedly correct. The trial Judge fell into error through taking an unjustifiably narrow view of the evidence, and not giving full weight to all the attendant circumstances. The appeal is hereby dismissed. MUHAMMAD MUNIR, C. J.‑I agree with my brother Cornelius that this appeal be dismissed with costs. In my opinion there was sufficient evidence to prove the execution of the will by Azmat. The original having been lost or intentionally withheld. by the appellant, certified copies of the will and of the registration endorsements on it were .proof of the fact that the will was presented for registration by the person identified by Nabi Bakhsh Lambardar of Chak No.. 335

6. B., who was personally known to the Registering Officer as "Azmat Ali, son of Banna, aged 75 years, occupation culti vation, resident of Chak No. 335‑G. B.", that the contents of the will were read over and explained by the Registering Officer to that Azmat Ali, who having heard and understood them admitted them to be correct and acknowledged having executed and completed the will. The contention of the learned counsel for the appellant is that the identity of Azmat Ali required independent proof because the. possibility of Nabi Bakhsh's having falsely identified and impersonated Azmat Ali cannot be excluded. It was not the appellant's case that in Chak No. 335‑G. B. there were or could be two persons of the same description as occurs in the Registering Officer's endorse ments. What is alleged is that some 16 years before Azmat's death, the beneficiaries under the will and Nabi Bakhsh had become parties to a conspiracy to forge a will, to present it before the Registering Officer and to produce and identify a fictitious person before that officer as Azmat. It is obvious that where such is the plea the onus of proving it is on the party raising it because the law presumes against such fraud and imposition. This result, to my mind, follows quite clearly from the following observations of the Privy Council in Gopal Das v. .Sri Thakurji A I R 1943 P C 83. "The Registrar's endorsements show that in 1881 a person claiming to he this Parshotam Das, and to have become son of Harish Chandra by adoption made by his widow Manki Bahu, presented the receipt for registration and admitted execution. He was identified by two persons, one Sheo Prasad and the other Girja Prasad. who was the scribe of the document and was known to the Registrar. What remain to be shown is that the person admitting execution before the Registrar was this Parshotam Das and no imposter The question is one of fact except in so far as there was as a matter of law a presumption that the registration proceedings wore regular and honestly carried out. It seem, clear that any objection to the sufficiency of the proof upon this point would have been idle, the circumstances being such that the evidence of due registration is itself some evidence of execution as against the plaintiff." According to this judgment of the Board, proof of' registration proceedings raises the presumption that those proceedings were regular and honestly carried out, and the evidence of due registration is itself some evidence of execution against the person against whom the document is sought. to be proved. The same result, is deducible from the earlier Judgment of the Board in Ehtisham Ali v. Janina Prasad and others 48 I A 365, where dealing with a situation such as arose in the present case Lord Phillimore said: "It is, no doubt, not very likely that such a deed would be lost, but in ordinary cases, if the witness in whose custody the deed should be deposed to its loss, unless there is some motive suggested for his being untruthful, his evidence, would be accepted as sufficient to let in secondary evidence of the deed.. And if in addition he was not cross‑examined, this result would follow all the more. There is no doubt that the deed was executed, for it was registered, and registered in a regular way, and it is the duty of the Registrar; before registering, to examine the grantor, or some one whom he is satisfied is the proper representative of the grantor, before he allows the deed to be registered. There cats be no doubt, therefore, that Ehsan Ali Khan executed the' deed and was party to its registration . . . ." In the present case, there was the further evidence that Azmat had given a document to his wife Mst. Fatto, describing. it to be his will, and it is almost impossible that there should have been two persons of the same', description as given in the Registering Officer's endorsemnt, and that while one of them might have made the will which was admitted to registration, the other should have given that will to his wife as his own. Nor can the circumstance be lightly ignored that Mst. Fatto, the widow of the testator surrendered her own life‑estate in favour of the, beneficiaries one of whom was her husband's niece and the other that niece's husband. Further, the effect of the will was to disherit Muhammad Buta, a brother of Mst. Niamat, whose mother, if the will had not been genuine, would never have agreed to accept or act upon it. But the mother who was a party to the suit admitted the will and thus' consented to the exclusion of her own son by her daughter and her husband. A. H. Appeal dismissed: