I am in no way inclined to discredit the value of such expert testimony, which, in some cases especially, may be conclusive, or, at any rate, of great importance, but I cannot help thinking that it is extremely dangerous to generalise in the way the experts have done when the questioned writing has been executed daring a state bordering on prostration. It appears to me most unsafe to accept the expert opinion regarding the shakiness, tremulousness, want of care or excess of care in a writer writing under such conditions, and it may be noticed in this case that neither of the experts has even stated that he possesses much experience regarding the writings of a sick man. After all, in such circumstances, it is the human factor which has to be taken into consideration and this human factor is capable of producing many variations and inconsistencies. At the most, I would hold that the handwriting expert evidence in this case has raised some slight suspicion as to the genuineness of the document; but this Blight suspicion is of no moment unless strongly confirmed in other ways.
Equivalent Citation: 59Ind. Cas.220,3LLJ110
IN THE HIGH COURT OF LAHORE
Letters Patent Appeal No. 126 of 1920
Decided On: 04.12.1920
Hari Singh Vs. Sardarni Lachhmi Devi
Coram:Shadi Lal, C.J., and Leslie Jones, J.
Expert evidence, value of.
The evidence of a skilled witness, however eminent, as to what he thinks may, or may not have taken place under a particular combination of circumstances, however confidently he may speak, is ordinarily a matter of mere opinion. Human judgment is fallible. Human knowledge is limited and imperfect.
An expert witness, however impartial he may wish to be, is likely to be unconsciously prejudiced in favour of the side which calls him. The mere fact of opposition on the part of the other side is apt to create a spirit of partisanship and rivalry so that an expert witness is unconsciously impelled to support the view taken by his own side. Besides, it must be remembered that an expert is often called by one side simply and solely because it has been ascertained that he holds views favorable to its interests.
Letters Patent appeal against the following judgment of Mr. Justice Wilberforce, dated the 24th June 1920, in Probate Case No. 2S of 1918, granting Probate:--
JUDGEMENT
Wilberforce, J.--In this case Sardarni Lachhmi Devi, mother of Sardar Krishen Dev Singh, asks for a Probate of the Will of her son, executed on the 23rd of October 1918. He was then suffering from influenza which he had contracted by the 18th of October and pneumonia which started on the 22nd, and he died on the 25th of October, The petition is opposed by Sardar Hari Singh, the unale of the deceased, and with him Musammat Bhag Sadhi, his step-mother, has associated herself. The objections of Sardar Hari Singh were that the Will was not executed by the deceased, or that he had not a disposing mind, and that the Will, if executed, was executed under undue influence. This last objection has been abandoned (see my order of 15th Jane 1920). Therefore, there remains for consideration the question whether the Will was executed by Krishan Dev Singh, and, if so, whether he was of disposing mind. For practical purposes, the position of the elevator is that the Will has been proved to be a forgery or, if not, that there are such strong circumstances, pointing to its being a forgery, and that the evidence of the petitioner is so interested and untrustworthy that the Probate should not be granted.
The position taken up by Chaudhri Shahab-ud-Din for the petitioner is, that, in the first place, the Will was in no way an in officious one; Krishen Dev Singh was a boy who had been educated at the Aitcheson College, and was just over 19 years of age, and bad been under the care of his uncle Sardar Hari Singh, since the testator had arrived at majority he had constant quarrels with Hari Singh about his property and was on bad terms with him. For this reason it was natural that he should wish to leave the property away from his uncle and in favour of his mother. This position is not contested by Mr. Sheo Narain for the caveator, but the learned Counsel points out that, in any circumstances, the mother of the testator would have succeeded to a life-estate and that there was, therefore, no special reason to make a further provision for her.
The Will is stated to have been executed in the handwriting of Krishan Dev Singh at 5 a.m. on 23rd October, 1918. This is clear from the statement of the attesting witness, Pir Bakhsh, taken by me on the 22nd June 1920. The testator is admitted to have been in a serious condition at the time, and the Will is said to have been written by him after propping himself up in bed. He is said to have raised his knees and to have written it on a book and to have taken about an hour over the performance. He then sent Pir Bakhsh, who was his servant, to fetch Mirza Jalal Din, Barrister, who bad done legal business with him in his litigation with Hari Singh and was also his personal friend. Mirza Jalal Din, who lived about half a mile distant, arrived with little delay, and at the request of the testator signed the Will after which Pir Bakhsh also affixed his signature. Sub sequently. Dr. Hira Lal visited the patient at about 9 or 10 a.m., and found him in a state bordering upon collapse, and, according to Mirza Jalal Din, was asked whether he would also attest the Will, but he refused as, he did not. wish to deprers his patient.
According to Dr. Hira Lal, Mirza Jalal Din did mention a Will and asked him either to hear it read out or to sign it. He states that he refused to have anything to do with the matter and did not see the Will. Chaudhri Shahab-ud-Din also refers to certain statements of witnesses produced by the other side which he considers are in his favour. One Partab Singh, a Granthi, says that he visited the patient on the 22nd, 23rd and 24th of October, and that on his second visit, namely, the 23rd, Mirza Jalal Din was speaking about getting a document executed by Krishan Dev Singh, but as the visit was between 10 and 12 a.m. in the morning, this statement hardly assists him. There is the statement of another witness produced by the opposite party on the same subject, namely, Jagan Nath, who states that on his second visit to the deceased his mother asked whether he was capable of executing a Will, and that he said that he was not. The witness says that he thinks that the testator died the day following his second visit, but his statement is too vague and indefinite to be of assistance to either party. There, therefore, remain on behalf of the petitioner the statements only of Mirza Jalal Din, Pir Bakhsh and Dr. Hira Lal and it has to be considered especially whether the statements of the two attesting witnesses are true. In their favour there in the fact that they would have been persons naturally called in to attest a Will, Mirza Jalal Din was not only the legal advisor, but the close friend of the testator, while Pir Bakhsh was a very old servant of the family. There is also Borne corroboration that a Will had been executed, afforded by the statement of Dr. Hira Lal, Against the truth of their statements, there is, first, the fact that Mirza Jalal Din has not had a particularly reputable career as a Barrister. In 1917 he was practicing before the Karachi Courts, and on the 13th of July 1917 be was removed from the office of Pleader of the Judicial Commissioner's Court on the ground that he had taken fees in cases in which he did not appear, and it was remarked in one case that it was difficult to believe that he had any intention of filing a plaint when he sent for the money for that purpose, and that his statement that be had engaged a substitute was false. The order, it is true, was passed in his absence, but the remarks of the Judicial Commissioner were based upon the statement put in by Mirza Jalal Din and other evidence; and up to this date, after one futile attempt to get the ex parte order set aside, the order remains in force, and Mirza Jalal Din, in consequence, on the 19th December 1918 gave an undertaking to practice no longer in the Punjab, until the order in question was set aside. It is also urged that he is, for practical purposes, a beneficiary under the Will, as, on the 9th of November 1918, i.e., on the first day after the kiria ceremonies of the deceased, the widow executed a power-of-attorney in favour of Mirza Jalal Din giving him absolute control over her large property, He also made the extraordinary condition that he was not removable from this post until all her affairs were settled up. As for Pir Bakhsh, he is an adherent of the deceased, and in this capacity had been proceeded against under section 145, Criminal Procedure Code, by Sardar Hari Singh; and it is urged that he may expect to be benefited if the Will is maintained. The evidence of Dr. Hira Lal is considered trustworthy by both sides, but it is pointed oat that he did not see any Will and is vague in his memory as to what was said, In addition to these criticisms the caveator has produced two handwriting experts, Mr. Hard less, and Mr. Brewster, who both unhesitatingly pronounce the Will to be a forgery. The caveator has also add cued Captain Nelson and Lt. Col. Mackenzie to show that, on the day of the alleged execution of the Will, the testator was incapable of writing it. He has also produced Drs. Jagan Nath and Jai Chand to testify as to the condition of the patient.
I will first discuss the medical evidence regarding the possibility both from a physical and mental point of view of the Will having been executed as stated. Dr. Hira Lal was the regular attendant upon the patient. He states that he saw him on the 18th of October when be was suffering from influenza and again on the 22nd and 23rd. He had developed pneumonia on the 22nd, and was ordered perfect rest. On the 23rd he was still able to speak intelligently and his mental faculties appeared to be in ordinary state : "He was so weak that he could pot sit up," but in re-examination the Doctor stated that it would have been possible for him to have sat up on the 23rd. He saw him on that date between 9 and 10 a.m, There is nothing on the record as to the qualifications or practice of Dr. Hira Lal, but both Counsel admit him to be efficient and trustworthy. It is obvious, therefore, that he is in a far better position to describe the patient's condition than Captain Nelson and Col. Mackenzie, who are merely deposing on information famished by Dr. Hira Lal, or by prescriptions. In addition to Dr. Hira Lal, the patient was visited by Dr. Jai Chand, on the 20th and 21st. Ha gave him prescriptions on bath these days, although the second does not appear to have been dispensed. Ha says that on the 21st pneumonia had supervened, and this is possibly correct, although he appears to have made a perfunctory examination, and although his prescription, P. 20, does not necessarily indicate, according to Col Mackenzie, that the patient was suffering from pneumonia. His evidence, therefore, helps little to dials aver the exact situation on the 23rd. Dr. Jagan Nath helps still less as he rafused to take over the medical treatment, as another doctor was in charge and he give no prescriptions, and is also vague as to the actual dates on which he visited. There remain, therefore, the statements of Captain Nelson and Col. Mackenzie. They have based their opinions mostly on Dr. Hira Lal's prescriptions, and on their general knowledge of the course of pneumonia developing on influenza I do not think their evidence of any value in the face of Dr. Hira Lal's statement. They base their opinions largely on prescriptions P. 17 and P. 18 which were written by Dr. Hira Lal on October 23rd. These prescriptions show that the patient was on the border of collapse, and that Dr. Hira Lal, therefore, prescribed very strong heart stimulants; but this was at 9 or 10 a.m. and cannot be held to prove that the patient's condition was similar at 5 a.m. In fact, it can reasonably be argued that the approaching collapse which Dr. Hira Lal feared at 9 or 10 a.m. was duo to the exertion of writing the Will at 5 a. 4. Caotin Nelson was confident that it was impossible for the patinat to have sat up in bad and written the Will on the 23rd at 9 or 10 A.M. and Col. Mackenzie thinks that it is impronabla that he could have done so. The latter opinion practically bears out the opinion of Dr. Bira Lal, but, as I have stated, the opinions of neither of these undoubtedly well-qualified Doctors, who did not see the patient, can be held in any way to affect the value of Dr. Hira Lal's statement, nor have they any importance, or even relevance, with regard to his condition at 5 a.m. I hold, therefore, that it is not shown that it was impossible for the Will to have been written at 5 a.m. nor even improbable if, as was presumably the case, the patient felt death approaching and thought that be should execute the Will at once. Even Col. Mackenzie admits that, in cases of influenza and pneumonia, there is sometimes a slight redaction of temperature in the morning. The petitioner's case is, therefore, not affected by medical evidence.
There has next to be considered the value of the statements of Mr. Hardless and Mr. Brewster, two well-known handwriting experts. This evidence is somewhat difficult to criticise as handwriting experts stand in an impregnable fortress of their own, and the value of their statements can, with difficulty, be tested by laymen or even by learned Counsel. A further difficulty in this case is that the only other admitted pieces of handwriting of the deceased, namely, seven letters with some envelopes addressed to Mirza Jalal Din, were written by the testator when in good health. Even handwriting experts admit that comparison under such circumstances is rendered more difficult (see Osborne on Questioned Documents, page 199 and page 21 it seq), In spite of this fact, however, the experts have found no difficulty in pronouncing the Will to he a forgery. Mr. Brewster states that in the document itself there is inherent evidence of forgery. His reasons are that the Will has been slowly and very carefully written with numerous pen pauses, pen lifts, and delicate re touching which are cot found in genuine writing, nor are they found in the ordinary writing. He thinks the writing of the Will inconsistent in itself in many places inasmuch as two or three letters only are written at one operation, but later on the second page the slow method was forgotten and some words containing six or four letters were written win out lifting the pen. He thinks that in at least two cases the strokes of the letters bad been made wrong way could and he considers these inconsistencies delicate additions and re-toothing not com patible with the writer being in a condition of prostration. Be also refers to the finger and hand movement and the different angle of pen presentation and careful joinings between the letters. It is difficult for me to express any opinion on Mr. Brewster's evidence, but the following remarks are not out of place. It appears to me only natural that a man in a condition of great weakness, as the testator undoubtedly was, should have written slowly and carefully with pen pauses and pen lifts. As for re-touohings, Mr. Brewster referred especially to the "l" of the word "last" in the first line, and the "h" of the word "have" in the fourth line. It appears, however, that the writer was accustomed in ordinary health to make similar re-toushings, I would refer to the "b" if the word ''bearer" in page 7 and to five "he" in the same letter, and also to two "he" in page 13. These examined under a microscope all appear to have been made separate from the original letters. They all also appear to have been made from the top as the finish of the stroke is in lighter ink and the same is the case with the re-touchings in the Will, As for the inconsistencies in the writing in some oases on the first page more than three or four letters appear to have been written consecutively; (see for instance the words "inherited" and " acquired "), This matter also does not appear to me of vital importance as the writing of a man beginning to write in the state of exhaustion may easily improve as he goes on. As for the angle of pen presentation, it may be different, but cannot this be accounted for by the conditions under which the Will was writtan? I may finally refer to Mr. Brewster's own remark that a man, who is not accustomed to writing legal documents, may write such a document more slowly than be would write an ordinary document. Mr. Hardless's evidence was taken at greater length but most of the above remarks apply. He gave eight reasons. His first reason was an irregular movement in page 1, i.e., the use of the simple finger movement in some places and the combined finger and wrist movement. This has also been referred to by Mr. Brewster. He next refers to pen scope, namely, the length of the writing without the change of pivot. He thirdly refers to pen preservation and next to pen pressure. The difference in this respect may easily be accounted for by the conditions under which the Will was written. The same is the case with the alignment, the sizing and the spacing. He referred also to assumed tremulousness of the Will, and thought that the tremulousness would have been more uniform, if it had been natural. He referred especially to the word "Sardar" in the last line and he did not think that the addition of the "s" in the word "moveable" was natural, nor the change of the word "s" in "expenses." Among other features, he noticed the firmness of the under-stroke below the date, and that below the signature and of the cross-bars to the "T," There is little more that I can say regarding his evidence in particular.
The value of expert evidence in general on handwriting was also discussed at considerable length before me. On the one hand, two books by Mr. Hardless and his son were shown to me, as they contained a large number of instances in which the evident of these undoubted experts has been accepted by Courts. In (sic) these two books are little more than advertisements of the writers. On the other hand Mr. Sbahab-ud-Din refers to certain oases in which their evidence has not been acted upon:--
Srikani v. Emperor 2 A.L.J. 444 : 2 Cr.L.J. 353, Ishar Das v, Emperor 18 P.W.E. 1908 Cr. : 8 Cr.L.J. 75, Jalal-ud-din v. Emperor 15 Ind. Cas. 979 : 18 P.W.R. 1912 Cr. : 147 P.L.R. 1912 : 13 Cr.L.J. 563, Basrur Venhata Row, In re 14 Ind. Cas. 418 : 11 M.L.T. 93 : 22 M.L.J. 270 : (1912) M.W.N. 125 : 13 Cr.L.J. 226 : 36 M. 159, Suresh Chandra Sanyal v. Emperor 14 Ind. Cas. 753 : 16 C.W.N. 812 : 39 C. 606 : 13 Cr.L.J. 2S9, Lalta Prasad v. Emperor 5 Ind. Cas. 356 : 13 O.C. 1 : 11 Cr.L.J. 114, Punjab National Bank, Limited v. Mercantile Bank of India, Limited 8 Ind. Cas. 98, The general trend of these judgments is that it is unsafe to base a conviction merely on the evidence of handwriting experts. The value of such evidence has also been discussed in many commentaries on evidence, see, for instance, Field's Evidence Act, 6th Edition, page 194; Roger on Expert Testimony, pages 458, 469; Best on Evidence, page 237; Taylor on Evidence, Volume I, page 63; Sanjiva Row's Evidence Act, page 889,and Wigmore's Principles of Judicial Proof pages 70 and 71 and page 417, 1913 Edition, in which he gives a caricature of the usual handwriting expert. I am in no way inclined to discredit the value of such expert testimony, which, in some cases especially, may be conclusive, or, at any rate, of great importance, but I cannot help thinking that it is extremely dangerous to generalise in the way the experts have done when the questioned writing has been executed daring a state bordering on prostration. It appears to me most unsafe to accept the expert opinion regarding the shakiness, tremulousness, want of care or excess of care in a writer writing under such conditions, and it may be noticed in this case that neither of the experts has even stated that he possesses much experience regarding the writings of a sick man. After all, in such circumstances, it is the human factor which has to be taken into consideration and this human factor is capable of producing many variations and inconsistencies. At the most, I would hold that the handwriting expert evidence in this case has raised some slight suspicion as to the genuineness of the document; but this Blight suspicion is of no moment unless strongly confirmed in other ways. I should also mention that two laymen, Mr. Kelly and Lala Bihari Lal, support respictively the proponent and the caveator.
It, therefore, remains to consider whether the grounds which Mr. Sheo Narain has made out against believing the statements of the attesting witnesses are sufficient. It may be admitted that Mirza Jalal Din was interested in the making of this Will, and that Pir Bakhsh might also have agreed to give assistance, and it may also be admitted that it would have been more satisfactory if other persons had been called in to witness the Will, but it must be remembered that the testator was at the time a stranger in Lahore, and, as far as he was concerned, be may have thought that the signature of the two attesting witnesses was sufficient. Mr. Sheo Narain also points out that the Will shows a knowledge of legal phraseology which could not have been expected of the testator. He refers to the use of the words "bequeath," "moveable" and "immoveable," "inherited and acquired" but the testator was a well-educated man, and had had some experience in litigation, and was a great friend of a Barrister. I have already referred to the statements of Partab Singh and Dr. Jagan Nath. The latter is vague and the former doss not appear to be entitled to much belief. There is also the statement of Lala Nand Kumar, but it is also vague, On the other hand, there are many reasons for believing the Will to be genuine. Krishan Dev Singh himself would have bean naturally inclined to make it. Dr. Hira Lal's statement that Mitzi Jalal Din wished him to hear the Will read out or to sign it, is important as this strongly signifies that the Will was then in existence. I believe Mirza Jalal Din's statement on this point as he would hardly have bothered Dr. Hira Lal merely to bear the Will which would not have helped his case, and it is far more probable that he would have asked him to sign it. He could not have taken the risk of the forged Will being shown to Krishan Dev Singh in Dr. Hira Lal's presence. I think, therefore, that this evidence shows that the Will was in existence on the 23rd and was genuine. It is also remarkable that, if Mirza Jalal Din, or some other person connected with the testator's mother, wished to forge a Will, they should forge a holograph document. It would obviously have been infinitely easier for Mirza Jalal Din to have written out the Will himself and for the forger to have added merely the signa ture of the testator. Another point which may be noticed in connection with the medical evidence is, that the Will was dated the 23rd October when the testator was undoubtedly seriously ill. If it was intended to forge a Will surely it would have been simpler to have ante-dated it by a day or two. Again, why should the forger have inserted unnecessary words like "Sardar" before the signature, Finally, against the argument that Mirza Jalal Din was pecuniarily interested in the drawing up of this Will, there is the fact that his services to the son were gratuitous as is shown by the correspondence, all these considerations, in my opinion, outweigh the considerations advanced by Mr. Sheo Narain. To sum up the case, therefore I consider that the statements of the attesting witnesses are entitled to belief, and that the suspicion cast upon the truth of their statements by general considerations, or the expert evidence, can be safely disregarded.
As for the issue whether the testator had a disposing mind at the time when he wrote the document, Mr. sheo Narain admits that, if ha actually wrote it with his own hand as stated by the proponent of the Will, there can be little doubt that he had disposing mind at the time. This appears to me obvious, especially as the Will was a natural one for the testator to have made, and it is not nsecssary, therefore, for me to discuss this matter at greater length.
I grant the Probate to the petitioner and the costs of these proceedings.
JUDGMENT
Wilberforce, J.
JUDGMENT
1. This is an appeal against an order of a Single Judge in Chambers who has granted Probate to Sardarni Lachhmi Davi of a Will propounded as that of her son, Krishan Dev Singh.
2. We have heard lengthy arguments from Pandit Sheo Narain, on behalf of Sardar Hari Singh, the caveator-appellant, who is the uncle of the deceased, but as the same arguments have already been dealt with in detail in the order of the learned Judge, we do not consider that it is necessary for us to re cover the whole ground.
3. The Will propounded is a holograph and it is conceded that if Krishan Dev Singh wrote it himself he must have had a disposing mind. It is further a Will of exactly the kind which, having regard to his feelings towards his uncle, he might have been expected to make. Expert medical evidence was produced with the object of showing that, in his then state of health, it would not have been possible for Krishan Dav Singh to write a holograph Will. But this evidence, which is indirect, is based mainly on a prescription given by Dr. Hira Lal some hours after the time at which the Will is alleged to have been written, and we agree with the learned Judge in preferring the statement of Dr. Hira Lal, who was in actual' attendance on the patient and whose veracity is in no way impugned, to the effect that it was possible for the deceased to have written such a Will.
4. We are not impressed with the evidence of Dr. Jai Chand who, while saying that the patient had pneumonia on the 21st October, on that date wrote out a prescription which was not clearly one for pneumonia, and the statements of Partab Singh and Br. Jagan Nath appear to us to carry their own reputation.
5. The appellant farther relied on the evidence of two experts in handwriting, Mr. Hardless and Mr. Brewster, who have given emphatic opinions that the Will is a forgery, Both of these gentlemen have exceeded their functions as experts in stating that it was not possible for a man in a low state of health to have written the Will before us, and, when Mr. Brewster goes farther and says that his opinion on the subject of this Will is absolutely infallible, he is making a claim which is, of course, wholly untenable. We cannot, perhaps, do better than quote the words of Norman, J., in the Queen v. Ahmed Ally 11 W.R. 25 Cr, where he remarked that "the evidence of a medical man, or other skilled witness, however eminent, as to what be thinks may or may not have taken plane under a particular combination of circumstances, however confidently be may speak, is ordinarily a mere matter of opinion. Haman judgment is fallible. Human knowledge is limited and imperfect." Moreover, to quote Ryan on Criminal Evidence in British India, Edition 1912, page 127, "It must be borne in mind that an expert witness, however impartial be may wish to be is likely to be unconsciously prejudiced in favour of the side which calls him. The mere fast of opposition on the part of the other side is apt to create a spirit of partisanship and rivalry, so that an expert witness is unconsciously impelled to support the view taken by his own side. Besides, it must be remembered that an expert is often called by one side simply and solely because it has been ascertained that be holds views favourable to its interests." That, of course, is exactly what has happened in the present case.
6. The standards with which the Will has been compared are a number of letters produced by Jalal ud Din, one of the signatories to the With, as letters written to him by the deceased, with whom be was on very friendly terms. In his order, the learned Judge in Chambers has spoken of these letters as having been admitted to be in the handwriting of the deceased, Counsel for the appellant has told as that no formal admission to this effect was ever made, but of the fact there can be no doubt, as apart from the evidence produced by the propounder, the caveator himself produced a witness who swore that there letters are in the handwriting of the deceased, and Counsel himself admits that this is most probably the case. He farther admits that, if these letters were not believed to be genuine it would have been quite possible for the caveator to produce other documents that were. At any rate, it is on these letters and envelopes that the criticisms of the handwriting experts are based.
7. We propose to discuss this question of handwriting from rather a different point of view. The defeated developed influenza on the 18th October; the Will is supposed to have been written early in the morning of the 23rd; some hours later he was very seriously ill, and he died on the 25th. Public reference to the existence of a Will was made on the 9th November and it was actually registered on the 14th November, Let us now suppose that, as alleged by the caveator, the deceased wrote no Will and that it became necessary to forge one. It is unlikely that the idea of forgery would have taken practical shape before the 25th, or, indeed, would have developed at all before the 23rd, as there can be no doubt that if the deceased had known he was likely to die. He would have made a Will of this kind while he was physically capable of doing so. A decision to forge having been reached, the first thing necessary would be to make a draft of the Will which had to be produced. The man on whom this duty would have fallen is Jalal-ud-Din, a Barrister, who was well acquainted with the deceased and knew his capacities. He could hardly fail to realise that it would be desirable to produce a Will, which, while complying sufficiently with legal requirements, was nevertheless couched in language which a young man of the attainments of the deceased was likely to have used. The propounded Will, however, as Counsel for the appellant himself urges, contains language and is written in a form of which the deceased, though he was well-educated, would most probably have been incapable, and it does not appear to us to be likely that if be bad to draft a forgery, Jalal ud Din would have been guilty of such an obvious and fundamental mistake. Moreover, apart from the question of the language used in the Will, it is written entirely without punctuation, as is the custom in English legal documents. Of that custom Jalal-ud-Din would be well aware, but the deceased would not. The standards show that the deceased was very careful about his punctuation and any one preparing a draft forgery would hardly be likely to make this unnecessary departure from the custom of the deceased as evidenced by the letters on which the forgery had to be based, We have no doubt that if Jalal-ud-Din had set himself, as on this theory of forgery he must have done, to prepare a draft, having plenty of time to think over it, he would have drawn up something which would not have been open to these obvious criticisms.
8. Counsel for the appellant does not pretend to be able to say by whom the actual forgery was done, but the suggestion is that it was either Jalal-ud-Din or some, person, employed by him. Mr. Brewster, we notice, has given it as his opinion that the Will is neither good nor bad forgery, but in this opinion we are unable to concur. Mr. Kelly, the Principal of the Aitohison College, who was for many years well acquainted with the handwriting of the deceased, has stated that the Will is unmistakably in his handwriting. The result of our own observation is, moreover, that if the Will is a forgery, it would be a very remarkable piece of work.
9. The handwriting of the deceased was distinctive and full of character, and, as the learned Judge in the Chambers has pointed out, a decision to forge a holograph Will in such handwriting would have been very bold and attended with much risk. Assuming, however, that such a decision was taken, a forgery of the kind which is now supposed to be before us would have demanded much practice as well as great skill Even if the matter of punctuation did not strike the author of the draft, it can hardly have failed to strike the author of the forgery. There must have been numerous copies made before the final copy which was to be tendered in Court could be produced. The experts have laid stress on the fact that certain words in the Will show what they describe as delicate re-toushings." These retouching are, however, few in number and show no signs of attempted concealment, being perfectly visible to the naked-eye. There is nothing in the least delicate about them and they are not the kind of re-touchings which an expert forger might have been expected to make. Thus, the forgery is in no way improved as such by the double stroke in the letter 't' in the word 'last' or by the lengthening of the letters 'b' and 'e' in the word 'bequeath'; so as to bring them down to the level of the line. There is, we notice, another 'e' in the word 'inherited' which is written well above the line, bat, though the forger is supposed to have thought it necessary to make a clumsy addition to the first 'e' In 'bequeath', he found himself under no such necessity with regard to the second 'e' in inherited,' though if the one amendment was desirable, so equally was the other.
10. The experts appear to us to have given their evidence as if they thought that the forger was pressed for time and had to make all his corrections and retouching in his first and only effort. Thus they think that the addition of an 'e' right above the line in the middle of the word 'moveable' from which the first V had been omitted when the word was first written, is a distinct sign of forgery,. To our minds, it indicates exactly the reverse. When we are considering the work of a supposed forger in making a final copy of his work, the only point of view, though this was not that of the experts, from which the insertion of this 'e' can be regarded as a sign of forgery is that it was the deliberate amendment showing the very greatest astuteness. We need only add, as regards these re-touchings that the deceased, as the standards show, was in the habit of making them and it is obvious that in the conditions under which this Will is alleged to have been written, it would have been natural for him to make more of them than when he was writing at case in a state of perfect health. There is, however, another point on which this forger, whose clumsiness the experts have been so ready to expose, has shown himself to be possessed of extraordinary cleverness Not content with making a forgery which is a first-rate reproduction of the characteristics of the handwriting, be has managed somehow to picture to himself the state of the health of the deceased at the time at which he is supposed to have written the Will and the very position in which he should have written. He has thus introduced into the forgery just those very differences which we should expect to find between the writing of a man sitting up at a table in good health and that of a sick man propped up in bed with his paper on a book on his knees, He has even been clever enough to bring into the forgery that more up-right style of handwriting which such position would actually induce. In fast, he anticipated in his imagination the very posture in which, according to the medical evidence the Will must have been written if it was written by the deceased at all.
11. These combinations of extraordinary cleverness and great but avoidable stupidity and clumsiness on the part of men who had ample time to think out the forgery in all its details and correct all obvious defects appear to us strongly to contra indicate the theory of forgery.
12. As regards the direct evidence, the witness Jalal-ud-Din, is no doubt a man who was himself deeply interested in getting a Will made, and we do not believe him when he says that the deceased had no assistance in making it. We think, however, that this denial on his part, though it is, of course, nonetheless excusable, may be traced to the prominence given by the caveator in his pleas to a plea of undue influence. In the pleas, forgery was not clearly alleged and if the propounder and his friends knew that they had a genuine Will in their possession, they would naturally be inclined to regard their position on that point as unassailable and attach more importance to the allegation of undue influence. They would, therefore, try to make oat that the deceased wrote the Will unaided. An issue was framed on this plea, and it was not abandoned until a late stage in the case.
13. Counsel for the appellant complains that a number of servants and the mother of the deceased ought to have been produced in support of the Will; but there is no reason to suppose that the servants referred to, though they were present in the house, were present in the room when the Will was written, and as to the non-production of the mother, who is said to have been present in the room, it has been explained to us by Counsel for the respondent that she was being kept in reserve in order to meet such evidence as the caveator might produce on the subject of undue influence. Afterwards, when her Counsel wished to produce her, the caveator objected and her evidence was not taken. Another offer to produce her was made daring the course of the appeal before us and it was not accepted. The lady has been attending Court with Jalal ud Din and there can be no doubt as to the kind of evidence which she would have given. There is no reason to suppose that her production would have helped the caveator, or failed to help her own case.
14. The other direct evidence is that of an old servant, called Pir Bakhsh, who no doubt had reason to dislike the caveator, Hart Singh, but is otherwise uninterested. Counsel for the appellant has made a carious criticism of the description by this witness of himself which follows his signature to the Will. He says that, obviously, the witness was about to write that he was servant of Hair Singh but corrected the 'H' into 'K' and then wrote Krishen Dev Singh as the name of his master. There has no doubt been a correction which may have been what Counsel alleges it to be, but, if so, though it would be quite natural in a man who was suddenly called upon to attach his signature and description without having thought out carefully what he was going to write, it would be much lees natural in the case of a signature to a forgery regarding which all the details had been carefully planned.
15. The direct evidence in support of the Will is, in our opinion, strongly corroborated by the statement of Dr. Hira Lal as showing that there was already a completed Will in existence when he visited the deceased on the morning of the 23rd. He did not see the Will but the impression left on his mind was that Jalal-ud-Din wanted either to read him the Will or to get him to sign it. The witness says that he tried to 'evade' Jalal-ud-Din's request, from which it appears that the matter was pressed on him though there was no reason why Jalal-ud-Din should have assumed such an unnecessary risk if he had not got a Will ready to show to the witness.
16. We have do doubt that the Will propounded is genuine and was written by Krishen Dev Singh. No question other than that of the genuineness of the Will has been argued before us, and we, therefore, dismiss the appeal with costs.
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