PRIVY COUNCIL

                 Muhammad Husain Khan

                 Vs.

                 BabuKishva Nandan Sahai

                       P.C.A.No.97 of 1934
(Lord Maugham, J. Sir ShadiLal and Sir George Rankin JJ.)

                 07.05.1937

                 JUDGMENT

SIR SHADILAL J.

1. This is an appeal from a decree of the High Court of Judicature at Allahabad, dated
23rd January 1933 which reversed a decree of the Subordinate Judge of Banda, dated
17th January 1929 and allowed the plaintiff's claim for possession of a village called
KalinjarTirhati with mesne profits thereof. One Ganesh Prasad, a resident of Banda in
the Province of Agra, was the proprietor of a large and valuable estate, including the
village in dispute. He died on 10th May 1914 leaving him surviving a son, Bindeshri
Prasad, who was thereupon recorded in the Revenue Records as the proprietor of the
estate left by his father.

2. In execution of a decree for money obtained by a creditor against Bindeshri Prasad
the village of KalinjarTirhati was sold by auction on 20th November 1924; and the
sale was confirmed on 25th January 1925. Bindeshri Prasad then brought the suit,
which has led to the present appeal, claiming possession of the property on the ground
that the sale was vitiated by fraud. He died on 25th December 1926 and in March
1927 his widow, GiriBala, applied for the substitution of her name as the plaintiff in
the suit. She was admittedly the sole heiress of her deceased husband, and this
application was accordingly granted. She also asked for leave to amend the plaint on
the ground that under a will made by her father-in-law, Ganesh Prasad, on 5th April
1914 her husband got the estate only for his life, and that on the latter's death his life
interest came to an end, and the devise in her favour became operative, making her
absolute owner of the estate including the village in question. She accordingly prayed
that, even if the sale be held to be binding upon her husband, it should be declared to
be inoperative as against her rights of ownership. The trial Judge made an order
allowing the amendment, and on 28th May 1927 recorded reasons to justify that order.
But in July 1927 when the defendants in their additional pleas again objected to the
amendment, the learned Judge framed an issue as to the validity of the amendment.
He was, thereafter, transferred from the district; and his successor, who decided the
suit, dismissed it on various grounds, and one of these grounds was that the
amendment of the plaint changed the nature of the suit and should not have been
allowed. The High Court, on appeal by the plaintiff, has dissented from that
conclusion, and held that the amendment was necessary for the purpose of
determining the real questions in controversy between the parties.

3. On behalf of the defendants, who are the appellants before their Lordships, it is
contended that, while GiriBala could continue the suit on the cause of action which
accrued to her husband, she was not entitled to add to it an alternative cause of action
which accrued to her in her personal capacity. It is however clear that the suit has been
tried on the amended plaint, and that the parties have adduced all the evidence relating
to both the causes of action. Their Lordships do not think that, even if there is any
sub-stance in the objection raised to the amendment of the plaint, it should now be
allowed to prevail, and all the time and labour expended on the trial of the suit should
be thrown away. To prevent the mischief which may be caused by the reversal of the
decree in a case of this kind, Section 99, Civil Procedure Code, 1908, provides that no
decree shall be reversed or substantially varied, nor shall any case be remanded in
appeal, on account of any misjoinder of parties or causes of action, or any error, defect
or irregularity in any proceedings in the suit, not affecting the merits of the case or the
jurisdiction of the Court. Now, the High Court has decided that the trial of the suit on
the alternative causes of action is sanctioned by the law, and it is not suggested that
the alleged misjoinder of the causes of action has affected the merits of the case or the
jurisdiction of the Court. The issue is now narrowed down to the simple point whether,
even if there was a misjoinder, their Lordships should, on that ground, reverse the
decree granted by the High Court. The provisions contained in the Civil Procedure
Code do not regulate the procedure of their Lord-ships in hearing appeals from India,
but there can be no doubt that the rule embodied in Section 99 proceeds upon a sound
principle, and is calculated to promote justice; and their Lordships are not prepared to
adopt a course which would merely prolong litigation. Assuming that the High Court
has erred in overruling the objection to the amendment and in upholding the trial on
both the causes of action, they do not think that the trial should be rendered abortive,
when the alleged misjoinder has affected neither the merits of the case nor the
jurisdiction of the Court.

4. The next question for determination is whether GiriBala has established her title to
the village in dispute, and the answer to that question depends upon the factum and
the validity of the will alleged to have been made, on 5th April 1914 by her father-in-
law, Ganesh Prasad, upon which she founds her claim. Now, it may be stated at the
outset that the original will has been lost, and its contents are proved by two copies,
the authenticity of which has not been challenged. But before examining the terms of
the will, it is necessary to give a brief history of certain circumstances which are said
to have led to its execution. It appears that in 1898 Ganesh Prasad applied to the
Government of his province to take over the management of his estate. In compliance
with his request the Court of Wards took charge of the estate and continued to manage
it until his death in May 1914. During the last four years of his life he made several
attempts to get his estate released from the management of the Court of Wards, but
these attempts were, unsuccessful. He had only one son, Bindeshri Prasad, but his
relations with the son were strained. The father was displeased with the son because of
his unsatisfactory character and extravagant habits. Accordingly he made a will at
Allahabad on 4th August 1911 and got it registered there on 5th August. By this will
he dedicated the whole of his estate to certain charitable and religious purposes, and
appointed seven persons to be the executors of the will and the trustees to carry out the
trusts. One of these seven persons was the Collector of his own district, Banda, and, at
that time, the Collector was one Mr. Swan, a member of the Indian Civil Service. A
copy of the will was sent by the testator to Mr. Swan, who was therefore cognizant of
the execution as well as of the contents thereof. By this will the testator not only
deprived Bindeshri Prasad of inheritance, but made no provision for his daughter-in-
law, GiriBala, or for any children who might be born to her.

5. In the beginning of 1914 there was an outbreak of bubonic plague at Banda, and
Ganesh Prasad therefore left that place to live in Motihari, one of the villages
comprised in his estate. He was at that time ill and was attended by a physician. While
he was living there, the will relied upon by the plaintiff is said to have been executed
by him on 5th April 1914. It revoked the previous will of 1911 and made various
devises which will be discussed hereinafter. Thereafter, when there was an abatement
in the epidemic, he returned to Banda and died there on 10th May 1914. Thereupon,
the Collector, Mr. Swan, took immediate steps to guard the rooms in which the
deceased used to keep his valuables and important documents. In compliance with the
direction of the Collector, one Pandit Ram AdhinShukla, a Deputy Collector and
Magistrate of Banda, went to the house of the deceased on the afternoon of 10th May
and locked up both the rooms in that house which contained several locked boxes and
valuable properties belonging to the deceased. On the following day he submitted his
report in writing to the Collector.

6. The trustees appointed by the will of 1911 were, at that time, ignorant of the fact
that it had been revoked by a subsequent testament, and considering that it became
operative on the death of the testator, four of them made an application, on 3rd June
1914 to the High Court at Allahabad for probate of the will. They filed with their
application a certified copy of that will, and stated that the original will was probably
among the papers of the deceased in his house, of which the Collector had taken
charge. On 29th June 1914 the High Court ordered citations to issue, and directed the
Collector of Banda to transmit the original will to the Registrar of the Court. In the
meantime the Collector, who knew of the application for probate pending in the High
Court, had sent a Deputy Collector, PanditHariHarNathMutto, to the house of the
deceased, and asked him to examine the papers in the rooms which had been locked
on 10th May 1914. The Deputy Collector opened the locks of the rooms on 28th June,
and made a search for the will of 1911. That will was not found there, but another will,
dated 5th April 1914 was found by him. Upon that will he made an
endorsementmentioning the exact place from which it was recovered, and also the
names of the persons in whose presence it was found. He sent this will with his report
to the Collector.

7. It must be stated here that the Collector was fully acquainted with the hand-writing
of the deceased, who had been working under him as an Honorary Magistrate for
many years, but he did not, on examining the signatures of the testator on the will,
suspect their genuineness. Indeed, he wrote to the Registrar of the High Court on 11th
July 1914 a letter stating that the will of 1911 could not be found among the papers of
the deceased, but that a later will was found, revoking the earlier will. On 15th July,
he sent the original will of 1914 to the Government Advocate at Allahabad and
instructed him to oppose the grant of probate of the will of 1911, and to produce the
will of 1914 in the probate proceedings then pending in the High Court. On the same
date he wrote to the Commissioner of the Division, to whom he was subordinate, and
also to the Legal Remembrancer to the Local Government, informing them of what he
had written to the Government Advocate. He also stated that "there is no reason
whatever to doubt the authenticity of the later will". As instructed by the Collector of
Banda, the Government Advocate produced the original will in the High Court on 27th
July 1914 when the probate case came on for hearing. The High Court directed the
Registrar to take charge of the will pending further orders.

8. In the meanwhile, Bindeshri Prasad had not only lodged a caveat in the High Court
against the grant of probate of the will of 1911, but also applied to the Revenue
Officer for mutation, in respect of the property left by his father, to be effected in his
favour, on the ground that the estate was ancestral and that he was entitled to it by
right of survivorship. On 5th October 1914, a compromise was effected in the course
of the mutation proceedings between Bindeshri Prasad on the one aide and the trustees
under the will of 1911 on the other. One of the trustees, who was a resident of
Allahabad, had died; and there were, at that time, five trustees who belonged to
Banda, and the Collector, who was an ex officio trustee. These five trustees stated that
the second will was genuine and bore the signatures of Ganesh Prasad, and they
agreed to let Bindeshri Prasad remain in proprietary possession of the estate of his
father "as provided in the second will of 5th April 1914". They also undertook to
apply to the High Court to dismiss their application for probate. At the same time
Bindeshri Prasad agreed to be responsible for all the debts of his father, and to create a
trust of a house comprised in the estate to be used as adharamsala, and also to pay Rs.
300 per annum to defray the expenses of the Ram Lila festival at Banda.

9. On 12th October 1914, the trustees asked the Collector to transmit to the High
Court their application embodying the compromise and praying that their application
for probate of the will of 1911 might be dismissed, on the ground that it had been
revoked by the later will of 1914. They also stated in their application that they were
"completely satisfied that the second will of 5th April 1914, is perfectly genuine," and
that it bears the signatures of Ganesh Prasad and the two attesting witnesses. On 7th
November 1914, the High Court accordingly dismissed the application for probate,
and this order of dismissal was followed in December by an order of the Revenue
Officer sanctioning mutation of immoveable property in favour of Bindeshri Prasad
instead of his father. On the conclusion of the proceedings in the High Court, Mr.
Malcomson, the Government Advocate, applied to the High Court for the return of the
original will of 1914 ; and it was made over to him on 13th January 1915. There is no
doubt that the will was delivered by the High Court to Mr. Malcomson, but there is no
evidence to show what happened to it thereafter. The plaintiff had proved that a search
was made for the original document, but it has not been discovered. On these facts it
must be held that the original will of 1914 has been lost, and the plaintiff is therefore
entitled to produce secondary evidence of its contents. The secondary evidence
consists of two certified copies of the original document, one copy was made when the
original was in the custody of the Collector, and the second copy was obtained from
the High Court. Neither the genuineness nor the accuracy of these copies has been
challenged, but they prove only the contents of the document which purported to be
the will executed by Ganesh Prasad on 5th April 1914. It is obvious that they cannot
prove that the original, of which they are copies, was executed by the testator.

10. What is the evidence to prove its execution by Ganesh Prasad? That evidence is
furnished by the testimony of the scribe Mahabir Prasad. This witness was, in 1914,
acting as the agent of Ganesh Prasad in his village Motihari, and he states that Ganesh
Prasad, who had come to live there in the beginning of 1914 owing to the outbreak of
plague at Banda, gave him a draft of the will which he intended to execute, and asked
him to make a fair copy of it. The witness accordingly prepared a fair copy, which was
then signed by Ganesh Prasad and attested by two persons, Jugal Kishore, who was
his physician and was treating him in his illness, and PiareLalDube who was his
tenant. These persons having died could not be examined as witnesses; but the Deputy
Collector, who recovered the original will in June 1914, satisfied himself after taking
down their statements that it was the will of Ganesh Prasad. The certified copies show
that the will bore two signatures of the testator, one in clearly legible handwriting, and
the other in running hand; but there is nothing suspicious in that fact, as even the
admittedly genuine will of 1911 was signed by him twice. There is also the evidence
of several witnesses, who saw the original document immediately after its recovery
and had no difficulty in recognizing both the signatures of the testator on it. It is
significant that these witnesses included some of the persons who were trustees under
the will of 1911, and there is no reason to impeach their veracity. Indeed, in their
application submitted to the High Court on 12th October 1914, they, as stated above,
had declared in unequivocal terms that they were familiar with the hand-writing of
Ganesh Prasad, and had satisfied themselves that the signatures of the testator on the
will of 1914 were genuine. The learned Judges of the High Court have repelled the
suggestion that the trustees were actuated by improper motives when they accepted
the genuineness of the will; and their Lordships, after examining the evidence to
which their attention has been invited, concur in their conclusion.

11. Mr. Swan, the Collector of Banda, who was familiar with the hand-writing of
Ganesh Prasad, also recognised his signatures on the will when it was sent to him by
the Deputy Collector; and he informed all the persons concerned of the recovery of the
document and of its genuineness. He also asked them to take steps in conformity with
its provisions. This circumstance must be regarded as an important corroboration of
the direct evidence in support of the genuineness of the will. It is true that
unfortunately the relations between the father and the son were strained, and to prove
that fact the appellants desired to produce in evidence certain documents which were
on the record of the Court, of Wards. They asked the Court of Wards for an inspection
of those documents, but their request was refused. An application has been made to
their Lordships that they should direct the Court of Wards to transmit to the Registrar
of the Privy Council the desired documents, or remit the case to India for the reception
of the additional evidence. The refusal of the Court of Wards was perhaps not
justified, but their Lordships do not think that any useful purpose would be served by
postponing the determination of this appeal, as the enmity between the father and the
son, which was sought to be proved by the additional evidence, cannot be seriously
disputed. Indeed, it was this enmity which led the father to make the will in 1911,
which, as stated, made no provision for either the son or the son's wife, or even his
own mistress. It was obviously an improvident will, and when he fell ill he probably
thought that he should, before dying, make suitable provision for his relatives and
dependants. There is also evidence to show that the son was with his father shortly
before the latter's death, and that there was a reconciliation between them. Whether
there was a complete reconciliation with the son or not, it was only to be expected that
the deceased would realise the gravity of the harm which would be caused by the will
of 1911. It would not only disinherit his only son but also leave his daughter-in-law,
for whom he had a great regard and sympathy, without any provision. There was also
his mistress, JairajKuar; and it was only fair that a suitable maintenance should be
provided for her. Moreover, he could not be unmindful of the fact that, if his daughter-
in-law gave birth to a son or adopted a boy, there would be no property which he could
inherit. In these circumstances it was only natural and right that he should make
another will providing for all the persons who had claims upon his affection or bounty.
The will in question did what a person in the position of Ganesh Prasad might be
expected to do. It gave only a life interest to Bindeshri Prasad, which, while enabling
him to realise the income of the estate during his lifetime, prevented him from
disposing of the property. It also provided that, on the death of Bindeshri Prasad, the
estate should devolve upon the latter's son, natural or adopted, and, that, in the
absence of any such son, it should become the absolute property of his daughter-in-
law. But the holder of the estate for the time being was directed to pay Rs. 50 a month
to the mistress of the testator.

12. No reasonable objection could be taken to these provisions of the will, and it is
noteworthy that in 1914, when the will was recovered from the house of the deceased,
there was no suggestion made by any person that it was a forged document. Indeed,
the persons, who now condemn it as a forgery, have not made any attempt to prove
their allegation or to rebut the evidence, direct as well as circumstantial, led by the
plaintiff to establish its execution by Ganesh Prasad. Their Lordships, therefore, agree
with the High Court that the issue as to the factum of the will must be decided in
favour of the plaintiff. The validity of the will is challenged on the ground that the
testator had no authority to dispose of the property, as it belonged to a Hindu
coparcenary consisting of himself and his son. It is common ground that the property
was inherited by Ganesh Prasad from his maternal grandfather, Jadu Ram; and the
question arises whether it was ancestral in his hands in the sense that his son acquired
therein an interest by birth jointly with him. There is a diversity of judicial opinion
upon this question in India : vide, inter alia Karuppai v. Sankaranarayanan, Jamna
Prasad v. Ram Partap, and Bishwanath v. Gajadhar, But the matter is of considerable
practical importance and their Lordships think that it should not be left in a state of
uncertainty.

13. The learned Counsel for the appellants argues that the property inherited by a
daughter's son from his maternal grand-father is ancestral property, and he relies, in
support of his argument, upon the expression "ancestral property" as used in the
judgment of this Board in ChelikaniVenkayyammaGaru v.
ChelikaniVenkataramanayyamma, in describing the property which had descended
from the maternal grandfather to his two grandsons. It is to be observed that the
grandsons referred to in that case were the sons of a daughter of the propositus, and
constituted a coparcenary with right of survivorship. On the death of their mother they
succeeded to the estate of their maternal grandfather, and continued to be joint in
estate until one of the brothers died. Thereupon, the widow of the deceased brother
claimed to recover a moiety of the estate from the surviving brother. The question
formulated by the Board for decision was whether the property of the maternal
grandfather descended, on the death of his daughter, to her two sons jointly with
benefit of survivorship, or in common without benefit of survivorship. This was the
only point of law which Was argued before their Lordships, and it does not appear that
it was contended that the estate was ancestral in the restricted sense in which the term
is used in the Hindu law. Their Lordships decided that the estate was governed by the
rule of survivorship, and the claim of the widow was, therefore, negatived. The
brothers took the estate of their maternal grandfather at the same time and by the same
title, and there was apparently no reason why they should not hold that estate in the
same manner as they held their other joint property. The rule of survivorship, which
admittedly governed their other property was held to apply also to the estate which
had come to them from their maternal grandfather. In these circumstances it was
unnecessary to express any opinion upon the abstract question of whether the property,
which a daughter's son inherits from his maternal grandfather, is ancestral property in
the technical sense that his son acquires therein by birth an interest jointly with him.
This question was neither raised by the parties nor determined by the Board. It appears
that the phrase "ancestral property", upon which reliance is placed on behalf of the
appellants, was used in its ordinary meaning, namely, property which devolves upon a
person from his ancestor, and not in the restricted sense of the Hindu law which
imports the idea of the acquisition of interest on birth by a son jointly with his father.

14. There are, on the other hand, observations in a later judgment of the Board in Atar
Singh v. Thakar Singh, which are pertinent here. It was stated in that judgment that
unless the lands came "by descent from a lineal male ancestor in the male line, they
are not deemed ancestral in Hindu law". This case, however, related to the property
which came from male collaterals and not from maternal grandfather; and it was
governed "by the custom of the Punjab", but it was not suggested that the custom
differed from the Hindu law on the issue before their Lordships. The rule of Hindu law
is well-settled that the property which a man inherits from any of his three immediate
paternal ancestors, namely his father, father's father and father's father's father is
ancestral property as regards his male issue, and his son acquires jointly with him an
interest in it by birth. Such property is held by him in coparcenary with his male issue,
and the doctrine of survivorship applies to it. But the question raised by this appeal, is
whether the son acquires by birth an interest jointly with his father in the estate, which
the latter inherits from his maternal grandfather. Now, Vijnanesvara, the author of
Mitakshara, expressly limits such right by birth to an estate which is paternal or grand-
paternal. It is true that Colebrooke's translation of the 27th sloka of the first section of
the first chapter of Mitakshara, which deals with inheritance is as follows : "It is a
settled point that property in the paternal or ancestral estate is by birth". But
Colebrooke apparently used the word 'ancestral' to denote grand-paternal, and did not
intend to mean that in the estate, which devolves upon a person from his male ancestor
in the maternal line, his son acquires an interest by birth. The original test of the
Mitakshara shows that the word used by "Vijnanesvara, which has been translated by
Colebrooke as 'ancestral' is paitamaha which means belonging to pitamaha. Now,
pitamaha ordinarily means father's father, and though it is sometimes used to include
any paternal male ancestor of the father, it does not mean a maternal male ancestor.
15. Indeed, there are other passages in Mitakshara which show that it is the property
of the paternal grandfather in which the son acquires by birth an interest jointly with,
and equal to that of his father. For instance, in the 5th sloka of the fifth section of the
first chapter, it is laid down that in the property

16. which was acquired by the paternal grandfather . . . the ownership of father and
Bon is notorious; and therefore partition does take place. For, or because the right is
equal, or alike therefore partition is not restricted to be made by the father's choice,
nor has he a double share.

17. Now, this is the translation of the sloka by Colebrooke himself, and it is significant
that the Sanskrit word which is translated by him as 'paternal grandfather', is pitamaha.
There can therefore be no doubt that the expression ancestral estate' used by
Colebrooke in translating the 27th sloka of the first section of the first chapter was
intended to mean grand-paternal estate. The word 'ancestor' in its ordinary meaning
includes an ascendant in the maternal, as well as the paternal, line; but the 'ancestral'
estate in which under the Hindu law, a son acquires jointly with his father an interest
by birth must be confined, as shown by the original text of the Mitakshara, to the
property descending to the father from his male ancestor in the male line. The
expression has sometimes been used in its ordinary sense, and that use has been the
cause of misunderstanding. The estate which was inherited by Ganesh Prasad from his
maternal grandfather cannot in their Lordships' opinion be held to be ancestral
property in which his son had an interest jointly with him. Ganesh Prasad
consequently had full power of disposal over that estate, and the devise made by him
in favour of his daughter-in-law, GiriBala, could not be challenged by his son or any
other person. On the death of her husband, the devise in her favour came into
operation and she became the absolute owner of the village KalinjarTirhati, as of the
remaining estate; and the sale of that village in execution proceedings against her
husband could not adversely affect her title. For the reasons above stated, their
Lordships are of opinion that the decree of the High Court should be affirmed, and this
appeal should be dismissed with costs. They will humbly advise His Majesty
accordingly.

Appeal dismissed.

Cases Referred.

(1901) 27 Mad 300 (FB),
(1907) 29 All 667=4 ALJ 582=1907 AWN 211
AIR 1917 Patna 146=43 IC 370=3 Pat LJ 168.
(1902) 25 Mad 678= 29 IA 166=12 MLJ 299=8 Sar 246 (PC)
(1910) 42 PR 1910=35 Cal 1039=6 IC 721=35 IA 206 (PC)