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TMI Blog1960 (5) TMI 47X X X X Extracts X X X X X X X X Extracts X X X X ..... Jerusalem Armenian Partriarchate for the education of orphans. It is a short will and these are its brief and only terms. 3. It ends by saying that the testator had a recent stroke of paralysis on the right side and was unable to sign clearly and distinctly and hence along with his signature made by his right hand, he had also put his left thumb impression in the presence of two witnesses. It states also that although he was not sound in body, he was sound in mind and that the will has been read out to him and that he has fully understood the contents of the same. The will was executed at the Jehangir Nursing Home, Poona, where the testator died on the 1st January 1956 and where he was admitted on the 21st October 1955. The will is witnessed by Dr. P. M. Bharucha the Resident Medical Officer of the Jehangir Nursing Home and by the Attending Nurse, S. Leitao. 4. The learned trial Judge comes to a definite finding that he is satisfied on the evidence that on the 28th December 1955, the testator executed the testamentary instrument. In fact, he says that the evidence of both Dr. Bharucha and Nurse Leitao on the fact of execution of the will is acceptable to him. Having found tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y be an undue influence. 6. The outstanding reason for which we are unable to uphold this judgment is two-fold. The learned Judge's reliance only on the evidence of Rev. Venkata Ramiah is, in our opinion, unjustified. Secondly, there are inherent infirmities of serious nature in the testimony of Rev. Venkata. Ramiah which make it entirely unsafe to rely on his uncorroborated testimony. We shall now state the reasons for this view briefly. 7. The evidence of Rev. Venkata Ramiah is that the testator was not in a sound physical and mental condition to make the will on the date he is supposed to have made it. He bases his conclusion on the ground of his visit to the testator to give him sacrament. He found him not in a fit condition to receive that sacrament. This visit he fixes on the 26th December 1955 in the morning. He says that was his first visit. On the day of the execution of the will, which was the 28th December 1955, he does not pledge his oath that he visited him but he says that he had paid two other visits whose dates he could not definitely fix. In answer to question 32, he says that he cannot remember the date of his second visit but that his third visit was on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ded. Lastly this course is all the more reprehensible here because witness Venkata Ramiah admits that on all his visits to the testator's room in the nursing home he found the wife present (Q. 81) and if that is so then if the wife was put that case she might have denied but by keeping back this case from her, she was denied the necessary opportunity to do so, leading to failure of justice in this case. 10. The law is clear on the subject. Wherever the opponent has declined to avail himself of the opportunity to put his essential and material case in cross-examination, it must follow that he believed that the testimony given could not be disputed at all. It is wrong to think that this is merely a technical rule of evidence. It is a rule of essential justice. It serves to prevent surprise at trial and miscarriage 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. It has been stated on high authority of the House of Lords that this much a counsel is bound to do when cross-examining that he must put ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... given, so as to give them notice, and to give them an opportunity of explanation, and an opportunity very often to defend their own character, and, not having given them such an opportunity, to ask the jury afterwards to disbelieve what they have said, although not one question has been directed either to their credit or to the accuracy of the facts they have deposed to. 13. In fact Lord Halsbury described the situation as a perfect outrage at page 77 of the said report. After quoting the evidence the learned Lord said: My Lords, it seems to me that it would be a perfect outrage and violation of the proper conduct of a case at Nisi Prius if, after the learned counsel had declined to cross-examine the witness upon that evidence, it is not to be taken as a fact that that witness did complain of the plaintiff's proceedings, that he did receive advice, that he went round to Mr. Dunn as a solicitor, and that he did sign that retainer, the whole case on the other side being that the retainer was a mere counterfeit proceeding and not a genuine retainer at all. 14. The same view is expressed in the 13th Edition of Odger on Pleading and Practice at page 261 and the 9th Ed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t. These Statutory Explanations are not intended to be exhaustive but they give practical illustrations to explain a sound disposing mind. After discussing evidence of medical witnesses His Lordship observed). 20-22. On this medical evidence of eminent doctors, whose evidence we find no reason to reject, we are bound to hold that the testator had, in spite of his many illnesses, a sound mind within the meaning of Section 59 of the Succession Act to execute his Will. He knew what he was doing and he was fully alive to the nature of the property he was disposing, and the persons in whose favour he made such disposition. 23. Gases on this point of a sound mind are not always helpful except for the general principles which are well settled and which we have earlier explained in this judgment. It may nevertheless be relevant to refer to the English case. In the Estate of Ann Holtam Gillett v. Rogers, reported in (1913) 108 L. T. 732. This was a case of a testatrix who was incapable of speaking or writing owing to an apoplectic stroke and who only assented by nods of her head and several pressures of her hand in answer to questions put to her by the person drawing her Will and t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ill of Gregory George Carapiet dated the 28th December 1955. 28. A point of probate practice of great importance, however, remains to be disposed of. The learned counsel for the parties appear to have agreed to certain arrangements for disposal of the estate of the testator. These terms, which are described as terms of settlement, are supposed to he signed by all the interested persons. We are asked to keep these terms on the records of this court. A court of Probate always shies at tenns of settlement. A Court of Probate is said to be a Court of Conscience which is not to be influenced by private arrangements of the parties. Either it grants probate to a Will or it rejects such grant. For such a court, it is said, there is no middle path for a happy compromise. The rule of law is stated to be that there can be no probate by consent. Either it is grant or refusal. The Court has to be satisfied in each case whether the Will proposed is truly the Will of a capable testator or not. It is not concerned with any other arrangement. It has been said over and over again that there is no such thing as conditional probate or an amended probate. In is either all or nothing. That seems to b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... property when it reaches their hands under the probate is a matter for them and not for the testamentary court. 30. It is necessary to refer to certain Indian and English cases in order to explain and clear this practice. In Boughey v. Minor 1893 P.181 a testator by his Will bequeathed the residue of his real and personal estate for the establishment of an agricultural college. The Will was disputed by one of his next of kin who was also heiress-at-law; but a compromise was agreed to, by which the Will was to be proved in solemn form without opposition. The Attorney General, as a person interested in the disposal of the residue, was cited, and appeared at the hearing to give his sanction to the compromise. Curiously enough in this case also the Will was opposed on the ground of testamentary incapacity, but after negotiations an arrangement was made for settlement. The court sanctioned such settlement and a probate was granted of the Will accordingly. This, however, was a case of first instance before any court had pronounced either for or against the Will. In Saroda Kanta Dass v. Gobind Mohan Das 12 CLJ 91 this procedure came up for comment. A Division Bench of this court appear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt is propounded and a ca(sic)eat against the grant is entered, it is common practice that opposition to the grant should be withdrawn upon terms. Upon this being done, the promovent proceeds to prove the Will unless probate has already been granted in common form. In such a case and according to the practice on the Original Side of the Court the caveat is discharged and the grant made. Such an order is alone within the scope of the suit. But if a settlement has been arrived at under which opposition has been withdrawn, it is recited in the decree that the parties have agreed to terms of settlement and it is ordered that such terms be recorded. The terms are then recorded in a schedule annexed to the decree. Such terms when as they ordinarily are beyond the scope of the suit are not the subject matter of the decree, and if not carried out, must be enforced by separate suit. It is argued that in any case no settlement can be arrived at which has the effect of in any way interfering with the disposition of the testamentary instrument of which probate is sought. But in my opinion this is not so. Neither the court nor the parties can make for the testator any Will other than that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... procedure was the procedure of filing a suit in respect of terms of settlement covering extraneous matters, but it has been understood in a wider sense as approving the procedure of recording in a schedule of the decree the terms of settlement disposing of the property of the testator whose Will for probate has been independently considered by the court. The reason why I say that it was so understood will appear from the two subsequent decisions of this court in Gouri Sankar Dutta v. Sm. Hari Bhabini Dutta 41 CWN 858 and Jagadish Chandra v. Upendra Chandra 48 CWN 294. Reference may also be made to the observations of Jenkins, C. J. in Surja Prasad Sukul v. Shyama Sundari Debi 14 CWN 967, where the learned Chief Justice upheld the validity of a compromise filed in this manner in a subsequent proceeding and which was enforced by a separate suit. 32. The difficulty on this branch even in the English procedure was clearly pointed out by Younger, J, in In re King, Jackson v. Attorney-General (1917) 2 Ch D 420 where at page 432 the learned Judge very pertinently observed: This is not the first time in which this court, as the court of administration, has found is difficult to wo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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