The first circumstances referred to and regarded by the learned District Judge as suspicious is that while it is in evidence that the alleged testator knew how to sign his name, the Will, Ex. 1, however, bears only the thumb mark of the deceased. But it is the respondent's own case that the testator was seriously suffering from tuberculosis and other ailments for about a year before the execution of the Will and it is not unusual that a person, who knows how to sign his name, may execute a document by mark only if he has become disabled to write his name by using a pen or otherwise due to his illness or some other cause. It is no doubt in evidence that the testator knew to sign his name and as such under ordinary circumstances one would have expected some evidence from the side of the propounder as to why the testator executed the Will by his thumb mark and not by his written signature. But the respondent in his two petitions of objection has not challenged the execution of the Will and has rather admitted the execution thereof by the testator, his only case being that such execution was the result of force and conspiracy. But it is settled law, as will also appear from the above noted Supreme Court and Calcutta decisions, that if the execution of the Will is not challenged but exercise of fraud or undue influence or coercion is alleged by the caveator, then it is for the caveator to prove such fraud, undue influence or coercion. On the evidence on record, no case of fraud, undue influence or coercion has been made out nor the learned District Judge has made any such finding. As already noted, the learned District Judge has thought that the fact of execution by thumb mark by a testator knowing to sign his name is sufficiently suspicious. But in my view, in the absence of any challenge to the execution of the Will by the testator, such fact alone cannot make the execution of the Will doubtful in any way, particularly when it is the admitted case that the testator was suffering from serious illness for a long time before the execution of the Will. It should also be noted that no question was at all put to the propounder or any of his witnesses during their examination as to the testator's knowing how to sign his name and the fact was sought to be proved by the respondent only while examinating his own witnesses. I have no doubt that there being a clear admission as to the execution of the Will by the testator and there also being no question put to the propounder or his witnesses as to the testator's knowing to sign his name, it was not for the propounder or his witnesses to come out on their own as to why the Will was executed by the testator by his thumb mark and not by his written signature. I am, therefore, of opinion that in the circumstances of this case, the fact that the testator, though knowing to sign his name, executed the Will by his thumb mark is not a circumstance which can be regarded to make the execution of the Will doubtful, particularly when the execution of the Will has not been challenged and has rather been admitted by the Respondent.
Civil Misc. Appeal No. 21 of 1976
Print Page
IN THE HIGH COURT OF SIKKIM
Decided On: 14.06.1979
Appellants: Sonam Topgyal Bhutia
Vs.
Respondent: Gompu Bhutia
Vs.
Respondent: Gompu Bhutia
Hon'ble Judges/Coram:
Man Mohan Singh Gujral , C.J. and Anandamoy Bhattacharjee , J.
1. The application filed by the appellant for probate of the will alleged to have been executed by his uncle Midung Bhu(sic) has been dismissed by the learned District Judge on the finding that "the Will cannot be called to be a genuine Will of the deceased and seems to have been forged by the petitioner along with the help of his witnesses" and being aggrieved by his judgment as aforesaid the appellant has preferred this appeal.
2. The learned District Judge has held that there are strongly suspicious circumstances surrounding the execution of the Will and the onus of explaining these circumstances and of removing the suspicion from the mind of the Court rests squarely on the appellant and that he has failed to discharge the onus in this case. That the onus of explaining the suspicious circumstances surrounding the execution of the Will is heavily on the propounded is settled by a series of authorities of the Privy Council and the Supreme Court and the decision of the Calcutta High Court in Sushma Bala Devi v. Anath Nath Tarafdar AIR 1976 Cal 377 , relied on by the learned District Judge, has referred to some of these Supreme Court decisions on the point including the leading decisions in H. Venkatachala Iyengar v. B.N. Thimmajamma MANU/SC/0115/1958 : AIR 1959 SC 443 and has, if I may say with respect, correctly deduced the law on the point. But while the learned District Judge is correct in his approach to the question of law involved in this case, he is, I am afraid, quite wrong in his appreciation of the evidence on record and, as I shall presently show, the four circumstances relied on and regarded by him as suspicious are not strong enough to throw any reasonable doubt as to the genuineness of the Will.
3, The first circumstances referred to and regarded by the learned District Judge as suspicious is that while it is in evidence that the alleged testator knew how to sign his name, the Will, Ex. 1, however, bears only the thumb mark of the deceased. But it is the respondent's own case that the testator was seriously suffering from tuberculosis and other ailments for about a year before the execution of the Will and it is not unusual that a person, who knows how to sign his name, may execute a document by mark only if he has become disabled to write his name by using a pen or otherwise due to his illness or some other cause. It is no doubt in evidence that the testator knew to sign his name and as such under ordinary circumstances one would have expected some evidence from the side of the propounder as to why the testator executed the Will by his thumb mark and not by his written signature. But the respondent in his two petitions of objection has not challenged the execution of the Will and has rather admitted the execution thereof by the testator, his only case being that such execution was the result of force and conspiracy. But it is settled law, as will also appear from the above noted Supreme Court and Calcutta decisions, that if the execution of the Will is not challenged but exercise of fraud or undue influence or coercion is alleged by the caveator, then it is for the caveator to prove such fraud, undue influence or coercion. On the evidence on record, no case of fraud, undue influence or coercion has been made out nor the learned District Judge has made any such finding. As already noted, the learned District Judge has thought that the fact of execution by thumb mark by a testator knowing to sign his name is sufficiently suspicious. But in my view, in the absence of any challenge to the execution of the Will by the testator, such fact alone cannot make the execution of the Will doubtful in any way, particularly when it is the admitted case that the testator was suffering from serious illness for a long time before the execution of the Will. It should also be noted that no question was at all put to the propounder or any of his witnesses during their examination as to the testator's knowing how to sign his name and the fact was sought to be proved by the respondent only while examinating his own witnesses. I have no doubt that there being a clear admission as to the execution of the Will by the testator and there also being no question put to the propounder or his witnesses as to the testator's knowing to sign his name, it was not for the propounder or his witnesses to come out on their own as to why the Will was executed by the testator by his thumb mark and not by his written signature. I am, therefore, of opinion that in the circumstances of this case, the fact that the testator, though knowing to sign his name, executed the Will by his thumb mark is not a circumstance which can be regarded to make the execution of the Will doubtful, particularly when the execution of the Will has not been challenged and has rather been admitted by the Respondent.
4. The second circumstance referred to and regarded by the learned District Judge as suspicious is the fact that while in the Will the propounder has been described as the adopted son of the testator, the propounder has admitted that neither any religious ceremony was performed nor any document was executed for such adoption. The learned District Judge has observed that
It is a matter of common knowledge that adoption pre-supposes the performance of certain religious ceremonies and unless such ceremonies are performed an adoption cannot be deemed to be valid.
I am yet to understand where from the learned District Judge has derived this "common knowledge". The parties are Sikkimese-Buddhists and I am yet to know that among them any particular religious ceremony is essential for the validity of an adoption and that the absence thereof invalidates an adoption. It may be mentioned here that it is now settled by a series of Privy Council decisions that Buddhist law applicable to Burmese does not require either any particular method to be followed or any ceremony to be performed or any document to be executed to constitute a valid adoption. Assuming, as the learned District Judge did, that the Hindu Law can apply to the Sikkimese-Buddhists, as it has been applied to other Indian Buddhists, it is now well-settled that even under the Hindu Law, as it stood before the Hindu Adoption and Maintenance Act, 1956, no religious ceremonies, not even the Datta-Homam were necessary in the case of Sudras. And in case of others, there was a conflict of opinion whether Datta-Homam or other ceremonies are necessary. (See Mulla's Hindu Law 14th Edition -- pp. 554-555). Reference may also be made to Gour's Hindu Code (Vol. V, 5th Edition) where it has been held (Section 342 ) that nonperformance of the Datta-Homam or other ceremonies will not invalidate an adoption unless their performance is shown to be required by the caste as of the essence of the adoption. There is nothing on record to show that among the caste or community to which the parties belong, any particular ceremony is necessary to constitute adoption and as such the learn ed District Judge is wrong in holding that the propounder was not the adopted son of the testator and the Will accordingly contained a false statement At any rate, if the testator regarded the propounder as his adopted son and described him as such in the Will, the Will can not be regarded to have contained a false statement and as such to be a suspicious document even if it is shown that the alleged adoption was not legal and complete being unaccompanied by requisite formal ceremonies. That apart, assuming that the propounder was not the adopted son of the testator, a mistaken statement made by the testator in the Will as to the status of the legatee cannot operate to the prejudice of the legatee and cannot be regarded to be a suspicious circumstance to throw doubt on the genuineness of the Will.
5. The third circumstance referred to and regarded by the learned District Judge as suspicious is that an Orange Orchard was bequeathed by the testator in his Will to the respondent and the case of the propounder is that it was so done as a result of persistent entreaties of the respondent at the time of the making of the Will by the testator. The learned District. Judge, however, has relied on a Copy of an alleged Khatian, Ex. P. X and has concluded that the said Orange Orchard stood recorded in the name of the respondent himself and as such held that the case of the propounder that the respondent was present at the time of the making of the Will and got the Orange Orchard bequeathed to him as a result of his persistent entreaties, was false. I have looked into the Exhibit and I have no doubt that the learned District Judge was wrong in marking it as an Exhibit at the time of writing his judgment as the said document was not a certified copy of a Khatian nor was proved any way. The finding of the learned District Judge on this count is, therefore clearly erroneous.
6. The fourth and the last circumstance referred to and regarded by the learned District Judge as suspicious or to have strengthened the chain of suspicion is that though the respondent so sincerely looked after his brother, the testator, during the long years of his illness and bereavement, and as such the testator must have been grateful to his brother, the respondent, yet the respondent was completely excluded in the Will. As I have already pointed out, there is nothing on record to show that the Orange Orchard bequeathed by the testator to the respondent belonged to or stood in the name of the respondent and as such it would be wrong to say that the testator bequeathed nothing to his brother, the respondent. But even otherwise it appears from the evidence that the respondent is rather well off having house property and business and that might have prompted the testator to bequeath all or most of his properties to his nephew, the petitioner, in preference to his brother, the respondent. Be that as it may bequest may be prompted by various motives and the fact that a testator has bequeathed his properties to one of his relations only to the exclusion of his other relations and even nearer relations or has given a major share to one of such relations only without any apparent convincing reason, can never be regarded to be a circumstance throwing doubt on the genuineness of the Will. I am, therefore, of opinion that the learned District Judge is wrong in regarding any of the four circumstances as suspicious circumstances surrounding the execution of the Will and is wrong in holding that the Will cannot be regarded to be a genuine Will of the testator.
7. Mr. B.C. Sharma, the learned Advocate for the respondent, has urged that the propounder-petitioner has taken a prominent part in the matter relating to the execution of the Will and has also been bequeathed substantial benefits thereunder and that this is, therefore, a suspicious circumstance surrounding the execution of the Will and has relied on the aforesaid Calcutta decision to substantiate his submission. But on the evidence on record I do not find the propounder taking any prominent part in the matter relating to the execution of the Will and the only thing he did was to call the writer of the will and other witnesses and that too as desired and directed by the testator. On the evidence on record, I do not think that the propounder can be said to have taken any prominent part in the matter of execution of the Will and what he did is expected to be done by anyone attending the deathbed of a near relation desiring to make a Will. As I have already stated, the evidence does not show that the propounder has taken any active or leading or prominent role in the matter of the execution of the Will.
8. I am, therefore, of opinion that the learned District Judge is wrong in holding that the Will propounded by the petitioner cannot be regarded to be the genuine Will of the testator and his judgment must be reversed.
9. This brings us to the larger question as to whether Buddhists in Sikkim can legally make testamentary disposition. This point was not specifically taken by any of the parties in their pleadings or otherwise but cropped up during the hearing of the appeal and we felt that as the question would go to the root of the matter and is a matter of general public importance in Sikkim and as there is no judicial pronouncement of this Court or of any other Court on this point, it would be appropriate to consider this matter in all its aspects and to give our decision so that the Buddhists in Sikkim become aware of the real position in law. We, therefore, by our order dated 29-7-1978, framed the following Issue, namely, "whether Sikkimese-Buddhists can, under the law applicable to them, make a Will in Sikkim" and allowed the parties to lead evidence on that Issue and also issued notice to the learned Advocate-General to assist us in the matter. We may note that in pursuance to our notice the learned Advocate-General has appeared before us and has rendered considerable assistance by examining witnesses and by advancing arguments.
10. There is no doubt that in Sikkim, there is, as yet, no statutory law' authorising testamentary disposition. But as will appear from the unchallenged evidence of the witnesses appearing before us, in practice Wills had been and have been recognised, acted upon and given effect to in the Courts of Sikkim as valid modes of postmortem disposition of properties and witnesses Sarki Bhutia, Karma Pintso Bhutia and T.D. Densapa have also referred to several instances of the execution of Will by Sikkimese-Buddhisis. The question before us is whether Wills in Sikkim can be regarded to be valid and legal without any legislative provision to that effect. The Shastric Hindu Law did not recognise testamentary disposition and statutory provisions had to be made by and under the provisions of the Hindu Wills Act, 1870, empowering the Hindus to make Wills. Buddhism also favoured intestacy and as pointed out by the Privy Council in Dwe Maung v. Khoo Haung Shein MANU/PR/0090/1924 : AIR 1925 PC 29 at p. 31, according to "the strict Buddhist view" "intestacy is compulsory". As the personal laws of the Hindus and Buddhists did not recognise testamentary disposition, doubts have arisen as to whether the Hindus and Buddhists in Sikkim can validly make Wills in the absence of legislative provisions.
11. "Will" has been defined in Section 2(h) of the Indian Succession Act, 1925 as.
The legal declaration of the intention of a testator with respect to his property which he desires to be carried into effect after his death.
It is, to use the language of the Privy Council in the well-known Tagore Case (1872) 18 Suth WR 359 , "a disposition of property to take effect upon the death of the donor".
12. But the history of the Hindu Law of Wills in India clearly demonstrates that from long before the enactment of the Hindu Wills Act, 1870, expressly conferring testamentary power on the Hindus, such a power was very much recognised and that the testamentary power of the Hindus, though not recognised by their original personal law, was not in the beginning a gift of legislation. Reference to the old legislations dating from 1793 and the judicial decisions of the Privy Council and other Courts will show that the testamentary power of the Hindus came to be clearly recognised almost as a matter of course and as inevitable incidence of ownership and was not created by any legislative provisions.
13. Section 2 of the Bengal Regulation XI of 1793, subsequently named as the Bengal Inheritance Regulation, provided that
if any Zamindar, independent talukdar and other actual proprietor of land shall die without a Will or with out having declared by a writing, or. verbally, to whom and in what manner his or her landed property is to devolve after his or her demise, and shall leave two or more heirs, who by' the Muhammedan or Hindu Law (according as the parties may be of the former or latter persuasion) may be respectively entitled to succeed to a, portion of the landed property of the deceased, such persons shall succeed to the shares to which they may be so entitled.
And Section 3 thereof provided that "such persons shall be at liberty, if they shall prefer so doing, to hold the properly as a joint undivided state." Section 5 of the Regulation provided that
Nothing contained in this Regulation is to be construed to prohibit any actual proprietor of land bequeathing or transferring by Will, or by a declaration in writing or verbally...his or her landed estate to his or her eldest son or next heir, or other son or heir, in exclusion to all other sons or heirs, or to any person or persons... ", "provided that the bequest or transfer be not...contrary to the Hindu or Mohammedan Law and...be authenticated by, or made before, such witnesses, and in such manner as those Laws respectively do or may require.
These provisions and particularly the provisions of Section 5 , purporting to save "bequeathing or transferring by| Will" exclusively to one or more sons or heirs or other person or persons if such bequests are not "contrary to Hindu Law" and are authenticated or made "in such manner, as those Laws do or may require," are quite apt to indicate that testamentary power of the Hindus was not created but was rather recognised and confirmed by this legislation and that such power existed from before.
14. Regulation V of 1799, subsequently named as the Bengal wills and Intestacy Regulation, also similarly recognised testamentary power of the Hindus as already existing and cannot be said to create or confer such powers. Section 1 thereof declared that "Doubts having been entertained to what extent, and in what manner the Judges of the Zila Courts of the Dewani Adalat in the provinces of Bengal, Bihar, Orissa and Venaras are authorised to interfere in cases wherein the inhabitants of the above provinces may have left Will at their decease and appointed executors to carry the same into effect or may have died intestate leaving an estate real or personal", the Regulation was passed "to remove all doubts on the authority of the Zila Courts in such cases". The Regulation did not state that doubts were entertained as to the power of the Hindus or other persons to make Wills and rather proceeded on the basis that such a power existed and declared in Section 2 thereof that "in all cases of a Hindu, Mussulman or other person...having at his death left a Will and appointed an executor or executors to carry the same into effect...the executors so appointed are to take charge of the estate of the deceased and proceed in the execution of their trust according to the Will of the Deceased and the law and usages of the country without any application to the Judges of the Dewani Adalat or any other officer of Government for his sanction....
These provisions are again clear legislative recognition of the testamentary power of the Hindus as already existing.
15. In Nagalutchmee Ammal v. Gopoo Nadaraja Chetty 6 Moo Ind App. 309 decided in 1856, the Will was executed and the testator also died in 844. The Judicial Committee considered the question of the testamentary power of the Hidus and observed as hereunder (at p. 345):
It must be allowed that in the ancient Hindu Law, as it was understood through the whole of Hindustan, testamentary instruments, in the sense affixed by English lawyers to that expression, were unknown; and it is stated by a writer of authority (Sir Thomas Strange) that the Hindu language has no terms to express what we mean by a Will. But it does not necessarily follow, that what in effect, though not in form, are testamentary instruments, which are only to come into operation and affect property after the death of the maker of the instrument were equally unknown. However this may be the strictness of the ancient law has long since been relaxed, and throughout Bengal a man who is the absolute owner of the property may now dispose of it by Will as he pleases, whether it be ancestral or not. This point was resolved several years ago by the concurrence of all the judicial authorities in Calcutta, as well as of the Supreme as of the Sudder Court. No doubt the law of Madras differs in some respects, and, amongst others, with respect to Wills, from that of Bengal. But even in Madras it is settled that a Will of property, not ancestral, may be good; a decision to this effect has been recognised and acted upon by the Judicial Committee, and, indeed, the rule of law to that extent is not disputed in this case.(underlining mine)
16. In Soorjeemoney Dassee v. Denobundoo Mullick 6 Moo Ind App 526 decided in 1857 the Will was executed and the testator died in 1841. The Judicial Committee observed (at p. 551) that
The Hindu Law, no less than English Law, points to the intention as the elements by which we are to be guided in determining the effect of a testamentary disposition.(Underlining mine)
It was observed further that among the circumstances to be regarded in ascertaining the meaning of the words of the Will is the "law of the country under which the Will was made". It is, therefore, clear that the Judicial Committee regarded testamentary dispositions to be within the purview of the Hindu Law and regarded Wills made by Hindus as made under the Hindu Law.
17. The case again came up in appeal before the Judicial Committee in ((1862) 9 Moo Ind App 123 ) and in considering the question of the testamentary powers of Hindus, the Judicial Committee observed at p. 135) that "that power has now long been recognised and must be considered as completely established" and observed further as hereunder:
We are to say, whether there is anything against public convenience, anything generally mischievous, or anything against the general principles of Hindu Law in allowing a testator to give property, whether by way, of remainder, or by way of executory bequest (to borrow terms from the law of England), upon an event which is to happen, if at all, immediately on the close of a life in being. Their Lordships think there is not; that there would be great general inconvenience and public mischief in denying such a power, and that it is their duty to advise her Majesty that such a Power does exist. Such powers have been long recognised in practice. The law of India, at least the law of Bengal, has been administered upon that basis, and the very mode in which this suit has been framed, and the manner in which it was conducted in India, are evidence if evidence were wanting, that such is the general opinion entertained in Bengal.
18. In Bhoobun Moyee Debia v. Ram Kishore Acharj Chowdhary 10 Moo Ind App 279 , decided in 1865, the testator died in 1821 and the Will which was set up was held to be forgery. One Anumati Patra, executed in 1819, authorising the widow to adopt, was sought to be characterised as a testamentary document, but the Judicial Committee held that the Anumati Patra was not of a testamentary character. But as to the testamentary power of the Hindu it was held by the Judicial Committee (at p. 309) that "there is no doubt that, by the decisions of Courts of Justice, the testamentary power of disposition by Hindu has been established within the Presidency of Bengal". I would, however, like to point out, with respect, that it was not by decisions of Courts alone but even by the provisions of the Bengal Inheritance Regulation, 1793 and the Bengal Wills and Intestacy Regulation, 1799, as noted hereinbefore, that the testamentary power of disposition by Hindu was clearly accepted and recognised.
19. In Beer Pertab Sahee v. Maharajah Rajendra Pertab Sahee 12 Moo Ind App 1 decided in 1867, the Will was executed and the testator, also died in 1858. The Judicial Committee again considered the question of the testamentary power of the Hindus and observed (at pages 37-38) that "it is too late to contend that because the ancient Hindu treatises make no mention of Wills, a Hindu cannot make testamentary disposition of his property" and that decided cases, too numerous to be now questioned have determined that the testamentary power exists...." As I have already pointed out, the power of testamentary disposition by Hindus has not only been . determined by judicial decision, but has been accepted and recognised as existing by the legislative provisions noted hereinabove.
20. In Jotendramohun Tagore v. Ganendromohun Tagore 18 Suth WR 359 decided in 1872, well known as the, Tagore case, the Will was executed in 1862 and the testator died in 1868. As to the testamentary power of the Hindus, the Judicial Committee observed (at p. 366) as hereunder:
As to gifts by way of Will, whatever doubts may have once been entertained by learned persons as to the existence of the testamentary power, those doubts have been dispelled by a course of practice in itself enough, if necessary, to establish in approved us-age, and by a series of judicial decisions both here and in India, proceeding upon the assumption that gifts by Will are legally binding, and recognising the validity of that form of gift as part and parcel of the general law. The introduction of gifts by Will into general use has followed in India as it has done in other countries the conveyance of property inter vivos. The same may be said of the Roman law, as pointed out by Mr. E.C. Clark in his interesting treatise upon Early Roman Law, 118, in which testamentary power, apart from public sanction, appears to have been development of the law of gifts inter vivos Such a disposition of property to take effect upon the death of the donor though revocable in his lifetime, is until revocation a continuous act of gift up to the moment of death, and does then operate to give the property disposed of to the persons designated as beneficiaries.
21. In this case also, the Judicial Committee held the testamentary power of the Hindus to be recognised by a course of practice amounting to an approved usage and by a series of judicial decisions. As already pointed out the testamentary power of the Hindus was also expressly recognised by legislations in the Bengal Inheritance Regulation, 1793 and the Bengal will and Intestacy Regulation, 1797. The earlier decisions in Soorjoemoney Dossee v. Denobundhoo Mullick ((1362) 9 Moo Ind App 123 (135)) and in Bhooban Moye Debia v. Ram Kishore Acharj Chowdhary (1865) 10 Moo Ind App 279 were referred to as fully recognizing the testamentary power of the Hindus.
22. In the much later decision in Gadadhur Mullick v. Official Trustee of Bengal MANU/PR/0011/1940: AIR 1940 PC 45, the Will was executed on 3-8-1866 and the testator died the next day and therefore the validity of the Will was to be determined under the Law as it stood before the Hindu Wills Act, 1870, which for the first time purported to confer formally the testamentary power on the Hindus. It was held, relying on Nagalutchemee Ammal v. Gopoo Nadaraja Chetty (1856) 6 Moo Ind App 309 , Sonatun Bysack v. Juggutsoondree Dossee (1859) 8 Moo Ind App 66 , that the power of the Hindus to make testamentary dispositions even before the Hindu Wills Act, 1870, was beyond doubt and disputes and was long recognised in practice and was established by a series of decisions. The Judicial Committee also referred with approval the history of the recognition by the British/Indian Courts of the testamentary power at Hindu Law as traced by Mayne in his well-known treatise on Hindu Law and Usage, which is now to be found in Chapter XXI of the 11th Edition of the Book.
23. Neither Mayne in his well-known treatise, nor the Judicial Committee in any of its decisions has referred to the provisions of the Bengal Inheritance Regulation, 1793 or the Bengal Wills and Intestacy Regulation, 1799, noted hereinabove. As already noted, these legislations never created or conferred any new or any power in favour of the Hindus to make Wills, but merely recognised such powers to be already existing. Reference in this connection may also be made to the provision of Section 3 of the Hindu Windows' Re-marriage Act of 1856 where "will or testamentary disposition" by a deceased Hindu husband was clearly contemplated and recognised, The first legislation of that kind expressly conferring power on the Hindus to make Wills was the Hindu Wills Act, 1870. This legislation was not so much necessary to create any power in favour of the Hindus to make Wills, as such power was already clearly recognised and fully established; but it was necessary to put the testamentary power of the Hindus on clearer and sounder footing of a legislative declaration and to make the law relating to Hindu Wills more or less uniform with the general law by making the general law relating to Wills as contained in the Indian Succession Act, 1865, applicable to Hindu Wills.
24. But the position remains that even from long before any legislation expressly declaring the competency of the Hindus to make testamentary dispositions, such a power was very much there and was established by a course of practice which, according to Judicial Committee in the Tagore Case, was "in itself enough to establish an approved usage" and was expressly recognized by the Bengal Inheritance Regulation, 1793, and the Bengal Wills and Intestacy Regulation, 1799 and also by a series of judicial decisions as noted hereinbefore. Even the power of the Hindus to make a verbal or nuncupative Will was recognised as will appear from the provisions of the legislations, as quoted hereinabove, and from, to take but one, a decision of the Calcutta High Court in Tara Chand Bose v. Nobin Chunder Mitter 3 Suth WR 138 , decided in 1865 where it was held that "under the Hindu law a nuncupative Will is legal". The history of Hindu Wills, therefore, is clear enough to show that the power to make Wills had been exercised by the people and had been all along recognised by the Courts as a valid mode of disposition of properties from long before the Hindu Wills Act, 1870 and as such the power to make such testamentary dispositions became very much a part of the Law of the land even though there was no legislation creating or conferring such power.
25. The Mohammedan Personal Law recognises testamentary power. I am not concerned with questions of purely academic interest, but I would like to point out that in my view the origin of Hindu Wills is not to be traced to the influence of the Mohammedans or their Law. If Hindu Wills were the result of Mohammedan influence, we would have got traces of Hindu Wills in some form or other during the centuries when Mohammedans ruled India. Jurists have pointed out that in the Digests and Commentaries on Hindu Law during the long period of Mohammedan rule, there does not appear to be any reference to Wills or testamentary dispositions. Will among the Hindus, in the sense in which the term is understood in the modern jurisprudence, trace their origin to British influence. Some jurists contend that Will in some form was known to and utilised by the Hindus well before the British period and Derrett in his "Introduction to Modem Hindu Law" (Chapter VIII) has pointed out that "a document that looks very much like a Will has survived from the Maratha period in the Deccan and Hindus around Negapatam were familiar with Wills about 1730-40". But Derrett has added that ''whatever existed in the nature of a Will before the British period probably lacked both the ambulatory and the revocable characteristic of the modern Anglo Hindu Will”... In my view Derrett is probably right as to the existence of some sort of testamentary dispositions among the Hindus even before the British period, for otherwise, the Britishers would not have so readily recognised by legislations in 1793 and 1799 the possibility of Hindus dying leaving Wills. But my purpose is not to ascertain as to whether testamentary power of the Hindus existed even before the British settlement and my only purpose is to show that long before the Hindu Wills Act, 1870 purported to confer on the Hindus the power to make Will by making the provisions of the Indian Succession Act, 1865 applicable to the Hindus, the power of the Hindus to make Wills was clearly accepted and recognised by legislations and judicial decisions and therefore, the power of the Hindus to make Wills in India was not created by and was not to be traced from direct legislation.
26. The same, in my view, is the case in Sikkim, where, as pointed out earlier, there has not been as yet any legislation creating or conferring the power to make Wills like the old Indian Succession Act, 1865, or the Hindu Wills Act, 1870 or the present Indian Succession Act, 1925. What happened in India as a result of the British influence, also happened in Sikkim as a result of the British-Indian influence. In India, during the early British period, when the laws were almost scanty, the Indians, the Judges, the lawyers and all concerned, freely borrowed and followed laws from England in all matters not covered by Indian laws. The same thing happened in Sikkim which has all along borrowed and followed Indian laws in matters not covered by Sikkim Laws. Like many other legal concepts, the concept of Will also migrated to Sikkim from India and the people in Sikkim began to exercise the power to make Wills and the Courts in Sikkim, very often presided over by persons having British-Indian legal training, began to accept and recognise such testamentary dispositions. Even legislative authorities in Sikkim were not slow in recognising the power of the inhabitants of ' Sikkim to make Wills and in the Sikkim Stamp Law of 1928, Stamp Duty for Wills is provided in Item No. III of Schedule "B". The Sikkim Registration Law of 1930 also provides in details in Rules 4, 14, 15 and 16 for registration of Wills. It may be contended that these provisions cannot be construed as recognising the power of the people of Sikkim in general to make Wills, but that they only provide for stamping and registration of Wills of persons who were otherwise competent to make Wills, like the Mohammedans, whose personal law recognizes Will and the other Indians settling in Sikkim. If a legislation was necessary to authorise and validate testamentary disposition, then even the Indian Hindus, Buddhists or Christians settling or residing in Sikkim could not make Wills in the absence of such legislations. Mohammedans in 1928-30 and even now form a very meagre fraction of the entire population in ' Sikkim and it is improbable that legislative provisions would be made for registration of Wills of such a very meagre fraction of the population. It is more reasonable to think that as| Wills become recognised in Sikkim by a course of practice amounting almost to an approved usage, the Stamp Law of 1928 and the Registration Law of 1930 took note thereof and recognised the same. But that apart, as already pointed out by witnesses before us and as has been submitted by the learned Advocate-General and the learned Counsel appearing for the parties, the Courts in Sikkim also accepted and recognised Wills made by the Hindus, Buddhists and other people in Sikkim in numerous cases and also granted Probates or Letters of Administration. It can, therefore, be concluded that as the power to make Wills has been exercised by the people of Sikkim and has been accepted and recognised by the Courts of Sikkim Sikkim as a valid mode of disposition of properties and has also been recognised by the legislative laws of the country, as noted hereinbefore, such testamentary disposition has become a part of the law of Sikkim, even though there is no direct legislation authorising such disposition. Following, therefore, most respectfully, the trend of the decisions of the Privy Council in respect of British-Indian cases as noted hereinbefore, I will like to declare that Wills in Sikkim became and have become part and parcel of the law of the land.
27. But though there is no legislation in Sikkim relating to Wills, the Courts in Sikkim have followed and applied the provisions of the Indian Succession Act, 1925 in all matters relating to Wills including granting of Probates and Letters of Administration. The question, therefore, is whether the provisions relating to Wills in the Indian Succession Act, 1925, which have never been formally adopted in or extended to Sikkim by any formal legislative authority are to be regarded as laws in force in Sikkim? Salmond has defined law as a body of principles recognised and applied by the State in the administration of Justice and as to 'consist of "of the rules recognised and acted on by Courts of justice". Holland has defined law as "a rule of external human action enforced by a Sovereign political authority." Therefore, the provisions relating to Wills in the Indian Succession Act, 1925, having so long been "recognised" "applied" and "acted on" by the Courts of justice in Sikkim in the administration of justice in matters relating to Wills, are also to be regarded as Laws in force in Sikkim.
28. In other words the statutory laws relating to Wills as contained in the Indian Succession Act, 1925 have, as a result of their continuous and systematic recognition and application by the Courts in Sikkim, become the non-statutory laws of Sikkim. Law does not and need not always flow formally or directly from a legislative authority. For otherwise, personal laws, customary laws, common laws or even precedents cannot be regarded as laws. Reference in this connection may be made to a recent decision of Sikkim High Court in Asharam Agarwala v. Union of India reported in 1978 Sikkim LJ 18 where it has been held that though the Arbitration Act, 1940 has never been formally made applicable in Sikkim, yet the provisions of the said Act, having so long been recognised, applied and acted upon by the Courts of Justice in Sikkim in the administration of justice in matters relating to Arbitration, are to be regarded as laws in force in Sikkim, though not as direct statutory laws. In dealing with the question as to whether such non-statutory laws could or can also create jurisdictions for the Courts to entertain applications, appeals and other proceedings under the said Act, it has been observed as hereunder:
If as already noted, Courts in Sikkim have all along not only applied the provisions of the Arbitration Act in between the parties to arbitration but have also applied the provisions relating to entertainment of all applications and appeals as provided in the said Act, then the latter provisions also, as a result of application and recognition by Courts, became the laws in force within the meaning of Article 371-F(K) of the Constitution whereunder all laws in force in Sikkim immediately before the commencement of the Constitution (Thirty-Sixth Amendment) Act, 1975, shall continue in force until amended or repealed by a competent Legislature or other competent authority. In other words, if by and under the Laws of Sikkim, though not statutory, the Courts had been exercising the jurisdiction to entertain applications relating to arbitration matters and also appeals therefrom, such laws and jurisdiction have also continued and shall continue in force.
29. Following this decision, I would hold that not only the provisions relating to the execution, interpretation or effect of Wills in the Indian Succession Act, 1925, but all the provisions therein relating to Wills including the provisions relating to grants of Probate and Letters of Administration and also appeals and other proceedings therefrom have become the laws of Sikkim. A. held by the Sikkim High Court in Jai Bahadur Rai v. Putra Dhan Rai "if this is characterised as making of laws by Courts, it may be pointed out that the very same thing was done by the Courts in India during the early British period when legislative laws in India were scanty and the Courts in India freely followed and adopted the principles of the English law in deciding points not covered by the provisions of the Indian Laws in force", and that India being then a country almost empty of legislative laws, "the void was to a great, extent filled by the Courts through their decisions by importing the principles of English Law, both common and statutory". It has been further held in Jas Bahadur Rai's case that the Courts in Sikkim will have to continue to do that amount of lawmaking until such time when direct legislative laws will begin to hold and occupy the field.
30. I would, therefore, answer the Issue framed by us in the affirmative and hold that a Will is legal and valid mode of postmortem disposition of property under the laws of Sikkim.
31. I have already held that the judgment of the learned District Judge in dismissing the application for probate filed by the appellant-petitioner is wrong and must be set aside. I will therefore, allow the appeal and set aside the judgment of the learned District Judge and direct the grant of Probate of the Will to the petitioner. The records of the case be sent back to the learned District Judge who shall 'grant probate to the appellant-petitioner in accordance with law. In the circumstances, I will make no order as to costs.
Man Mohan Singh Gujral, C.J.
32. I agree.
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